Michael Geist

Latest Posts

PM Harper attends the Nuclear Security Summit by Stephen Harper (CC BY-NC-ND 2.0) https://flic.kr/p/mpchU5

The Rise and Fall of the Conservatives’ Digital Policy

As Canadians head to the polls, Internet and digital issues are unlikely to be top-of-mind for many voters. Each party has sprinkled its election platform with digital policies – the NDP emphasizes privacy, net neutrality and its opposition to the Trans Pacific Partnership, the Liberals focus on open government, and the Conservatives tout cyber-security – yet Internet and digital issues have played at best a minor role in the campaign. The early references to a Netflix tax or the debate over Bill C-51 have been largely lost in an election whose central issue seems primarily to be a referendum on ten years of Stephen Harper and the Conservative government.

My weekly technology law column (Toronto Star version, homepage version) notes that a review of digital and Internet law in the 2015 election campaign involves a similar assessment on the past decade of privacy, copyright and telecom policy. The Conservatives once placed a heavy emphasis on Internet-friendly approach, crafting rules that were designed to attract popular support by encouraging telecom competition, greater flexibility for copyright, and consumer privacy protection. Yet toward the end of its mandate, the government shifted priorities and in the process seemed to forget about the Internet.

October 19, 2015 — 3 comments — Columns

2015-09-07 at 09-53-58 by OFL Communications Department (CC BY 2.0) https://flic.kr/p/ypa2Ss

The NDP’s Confusion on Copyright Term: Is Term Extension on their Agenda?

Copyright has not received much attention during the election campaign, but a recent survey by SOCAN raises questions about support for copyright term extension. The issue is particularly confusing in the case of the NDP, since it opposes the TPP (which would require term extension and keep works out of the public domain for decades) but it seems to be willing to entertain the prospect of copyright term extension. SOCAN asked whether the parties would be willing to extend the term of copyright to life of the author (or composer) plus 70 years. The NDP’s response:

The NDP welcomed the government changes in Budget 2015 to extend the term of copyright for performers. We understand there is now discrepancy between performers and songwriters. The NDP is committed to reviewing the Copyright Act in 2017 as the Act requires. We would look to make these key legislative changes in our first year of mandate. These are among the changes we would be looking into.

October 16, 2015 — 5 comments — News

Facebook: The privacy saga continues by Ruth Suehle for opensource.com (CC BY-SA 2.0) https://www.flickr.com/photos/opensourceway/4638981545/sizes/o/

How the TPP Puts Canadian Privacy at Risk

The Trans Pacific Partnership (TPP), a massive trade agreement that covers nearly 40 per cent of world GDP, wrapped up years of negotiation earlier this month. The TPP immediately emerged as an election issue, with the Conservatives trumpeting the deal as a source of future economic growth, the Liberals adopting a wait-and-see approach (the specific details of the agreement are still not public), and the NDP voicing strong opposition.

The focal point of most TPP discussion in Canada has centered on two sectors: the dairy industry, who would experience a modest increase in competition and receive a staggering multi-billion dollar compensation package, and the automotive parts sector, which would face Asian-based competition as a result of new, lower local content requirements (the industry is also pressing for a compensation package).

My weekly technology law column (Toronto Star version, homepage version) notes that lost in the discussion over imported butter and Japanese-made auto parts are the broader implications of the TPP. New rules on corporate lawsuits could result in more claims by foreign corporations against the Canadian government over national policies or court decisions (pharmaceutical giant Eli Lilly is already suing the government for $500 million over Canadian patent rulings) and an extension in the term of copyright beyond the international standard would lock down the public domain for decades and potentially cost Canadians hundreds of millions of dollars per year.

October 14, 2015 — 8 comments — Columns

copyright takedown notice by Andrew Allingham (CC BY 2.0) https://flic.kr/p/bw9zNC

Why the TPP Creates a Backdoor Copyright Takedown System in Canada

The 2012 Canadian copyright reform law featured several “made in Canada” provisions that the Conservative government touted as striking a better balance than rules found elsewhere. At the top of the list was the notice-and-notice system for Internet providers. Minister James Moore (then of Canadian Heritage and later Industry) specifically cited the Canadian system as an example of how Canada had “rejected the American style approaches on massive parts of our legislation.” Yet a close reading of the leaked version of the Trans Pacific Partnership intellectual property chapter suggests that Canada may just have agreed to establish a copyright takedown system.

The preservation of the notice-and-notice was a top copyright priority for the Canadian government, so much so that it caved on copyright term extension and implemented digital lock rules that were widely criticized by the Canadian public. However, the negotiators may have failed to keep a notice-and-takedown system out of Canada. Section I of the copyright chapter creates a U.S. style notice-and-takedown system. The Canadian solution was to create a special annex that provides an alternative to the U.S. approach. While the annex was designed specifically for Canada, it would appear that it fails to prevent copyright takedowns from coming to Canada.

October 13, 2015 — 6 comments — News

07290067 by SumOfUs (CC BY 2.0) https://flic.kr/p/wGpjox

Canada Caves on Copyright in TPP: Commits to Longer Term, Urge ISPs to Block Content

The final Trans Pacific Partnership intellectual property chapter leaked this morning confirming what many had feared. While the Canadian government has focused on issues like dairy and the auto sector, it caved on key copyright issues in the agreement. As a result, works will be locked out of the public domain for decades at a cost to the public of hundreds of millions of dollars. Moreover, the government will “induce” Internet providers to engage in content blocking even where Canadian courts have not ruled on whether the content infringes copyright. As a result (and as expected – this was raised years ago), the government’s “made in Canada” approach to copyright – which it has frequently touted as representing a balanced approach – faces a U.S. demanded overhaul. In fact, even as other countries were able to negotiate phase-in periods on copyright changes, the Canadian negotiators simply caved.

The biggest change is a requirement to extend the term of copyright from life of the author plus 50 years to life plus 70 years. The additional 20 years will keep works out of the public domain for decades. The New Zealand government estimates that this change alone will cost NZ$55 million per year for a country that is one-ninth the size of Canada. Moreover, New Zealand was able to negotiate a delayed implementation of the copyright term provision, with a shorter extension for the first 8 years. It also obtained a clear provision that does not make the change retroactive – anything in the public domain stays there. Malaysia also obtained a delay in the copyright term extension requirement.

October 9, 2015 — 55 comments — News