Media News
PIAC Submission to the Government Consultation on A Digital Economy Strategy for Canada
Digital TV Transition Could Lead to New Digital Divide
The basic notion of the transition is fairly straightforward. For decades, Canadian broadcasters have used spectrum to transmit over-the-air analog broadcast signals. Before the widespread use of cable and satellite, many Canadians used antennae - "rabbit ears"- to access those broadcast signals.
On August 31, 2011, Canadian broadcasters will switch from analog to digital broadcasts. The shift to digital brings several advantages including better image and sound quality as well as more efficient use of spectrum that will open the door to new telecom services. It also requires those relying on over-the-air signals to have a television with a digital tuner or obtain a digital converter box to convert the digital signal back to analog.
Contrary to popular belief, many Canadians still rely on over-the-air signals. In its latest update on the transition, the Canadian Radio-television and Telecommunications Commission estimated that up to 857,000 households in larger markets do not subscribe to either cable or satellite. On top of those households, tens of thousands of rural households also depend upon over-the-air signals.
The CRTC has opened the door to a satellite alternative for rural communities, but households that rely on over-the-air signals in larger markets will need a digital converter box in order to continue to watch programs on their existing televisions. In the United States, the government subsidized the cost of the transition, establishing a coupon program that ultimately cost over $1 billion and forced a six-month delay of the transition when politicians feared that too many consumers were not ready.
Unlike the U.S., there will not be a Canadian subsidy program. While the additional costs could affect lower income Canadians, who are also more likely to rely on the over-the-air signals rather than cable or satellite services, Canadian Heritage Minister James Moore has firmly rejected a similar approach.
A successful transition also depends upon educating Canadians about the changes. For example, the United Kingdom has established Digital UK, an independent, not-for-profit organization to the lead its process. The organization is funded by the countryâs private broadcasters and was established at the request of the government. It maintains a comprehensive website and has launched a nationwide advertising campaign.
By contrast, other than the occasional CRTC release - Chair Konrad von Finckenstein has been sounding the alarm bells on the digital transition for months - the issue has attracted virtually no public attention in Canada. Moore has told Canadaâs broadcasters that Canadians had "fair notice" about the transition and that the broadcasters should be prepared to complete the switch on schedule, emphasizing the transition "must remain on track."
But most Canadian broadcasters see little value in investing in a public education campaign without government support, particularly since they are already spending millions on digital transmitters. In fact, the mandatory deadlines for the transition were only established after it became apparent the broadcasters would not make the switch voluntarily.
The CRTC has tried to push the issue onto the public agenda, but has thus far faced government opposition and broadcaster indifference. As a result, when Canadaâs broadcasters flip the switch next summer, hundreds of thousands of Canadians may find themselves on the wrong side of a new digital divide.
Civil Society Groups Warn on ACTA and Access To Medicines
Behind closed doors: “Secret, backroom” FCC meetings
Despite the FCC’s public promise of an open Internet, the FCC has, and continues to hold secret meetings with corporations to discuss the two main net neutrality proceedings: broadband reclassification and open Internet proposals. The FCC has allegedly summoned lobbyists from corporations such as AT&T, T Mobile, Sprint, Verizon, Google, Skype, and the Motion Picture Association of America, to give their two cents in hopes that a compromise could be reached.
Consumers cry foul over Rogers move
Shortly after the online movie rental company Netflix said it would begin offering service north of the border, one of Canada’s largest Internet providers sliced the amount of data its subscribers can download each month.
On July 21, two days after Netflix announced it would offer a Canadian version of its wildly popular and industry-disrupting service starting in the fall, Rogers Communications Inc. changed two of its Internet plans: While prices are not dropping, new users of Rogers “lite” and “extreme” Internet service now have a stricter download limit.
Consumers cry foul over Rogers move
Shortly after the online movie rental company Netflix said it would begin offering service north of the border, one of Canada’s largest Internet providers sliced the amount of data its subscribers can download each month.
On July 21, two days after Netflix announced it would offer a Canadian version of its wildly popular and industry-disrupting service starting in the fall, Rogers Communications Inc. changed two of its Internet plans: While prices are not dropping, new users of Rogers “lite” and “extreme” Internet service now have a stricter download limit.
U.S. has got work to do, urges FCC Chairman Genachowski
In the United States, Comcast is the leading ISP in fastest broadband speed, at an average speed of 16.23Mbps, followed by Charter and Cablevision.
As an entire country, the U.S. has an average download speed of 9.87Mbps, placing the U.S. at 27th place internationally. South Korea has the fastest average speed of 31.39, followed by Latvia and Netherlands. Canada is 32nd with a speed of 8.33Mbps.
University of Ottawa Press Launches Open Access Collection
Federal Court Ruling Shows Fair Dealing Fears Greatly Exaggerated
Last week, the Federal Court of Appeal issued its much-anticipated ruling in the K-12 case, which specifically addressed fair dealing in the context of education. The ruling was a major win for Access Copyright, as the court dismissed objections from education groups on a Copyright Board of Canada ruling and paved the way for millions in compensation from school boards.
The case is notable since it demonstrates how critics of greater fair dealing flexiblity have greatly exaggerated claims of potential harm. For example, former PWAC Executive Director John Degen wrote this week that "the introduction of an overly broad exception to copyright for educational use would all but eliminate fair compensation for this established use." Access Copyright reacted to the court victory by stating it was "bittersweet" given the C-32 changes. While there is no doubt that extending fair dealing to education (the law currently covers many educational activities under research, private study, criticism, and review) will bring more potential copying within the scope of fair dealing, this case reinforces the fact that fair dealing is a fair for all, not a free for all and that fears that the extension of categories will wipe out all revenues bear little relation to reality.
The court held that Canadian fair dealing analysis involves a two-part test. First, does the use (or dealing) qualify for one of the fair dealing exceptions (the Supreme Court of Canada has called these user rights). Second, if it does qualify, is the use itself fair. In this particular case, the court affirmed that the copying in question qualified under the first part of the test (ie. for research or private study), but that it did not meet the six-part test for fairness and thus was not fair dealing. In other words, claims that a new category would eliminate compensation is plainly wrong since the copying in question already qualified under a category of fair dealing.
It is critical to note that extension of fair dealing to education, parody and satire in Bill C-32 only affects the first part of the test. In other words, while the bill will extend the categories of what qualifies as fair dealing, it does not change the need for the use itself to be fair. The Supreme Court of Canada has identified six non-exhaustive factors to assist a Courtâs fairness inquiry: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.
Whether the use of the work qualifies as fair dealing depends upon both meeting both parts of the test. In fact, the court notes:
I am also aware that Bill C-32, An Act to amend the Copyright Act, 3rd Session, 40th Parliament, 59 Elizabeth II, 2010, section 21 would amend section 29 to state that "Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright". However, this amendment serves only to create additional allowable purposes; it does not affect the fairness analysis. As the parties agree that the dealing in this case was for an allowable purpose, the proposed amendments to the Act do not affect the outcome of this case and no more will be said about Bill C-32.
The case represents a big win for the copyright collectives, but it also demonstrates that their concerns about C-32's fair dealing reforms are overstated. The bill will open the door to other potential uses being treated as fair dealing, but the requirements for fairness remain unchanged.
Industry Canada on US IP Watch List
"Canada does not recognize the validity of the Special 301 process, which relies on industry allegations rather than empirical evidence and analysis."
Note that the article says I said that Canada did not need to pass anti-circumvention laws in order to comply with the WIPO Internet treaties. As anyone who had read my stuff knows, that is not my position. There is no doubt that anti-circumvention rules are needed to comply. The issue is the degree of flexibility within those provisions, not whether provisions are needed.
Leading Internet Defender Calls Out Anti-Competitive Practices
OpenMedia.ca insists that Rogers Communications data limits require government action
For Immediate Release: July 26, 2010
Just days after video service Netflix announced its expansion into Canada, Rogers Communications announced they will lower the usage limits on some of their plans. The move appears to be a defensive measure to protect the company’s own video services from encroachment by Netflix, which provides unlimited movies and television shows over the internet for a monthly subscription fee.
New Globe and Mail iPad app marred by ads
Bluepoint Investment Corp. and The Government of Saskatchewan Agree to Terms for Acquisition of SCN
With the application to the CRTC for change of ownership, Bluepoint will also be filing for a change of condition of license to broaden the programming slate and to allow for the sale of advertising.
CETA Update: EU Continues To Press on IP
On intellectual property, the EU is still reflecting on Bill C-32. The department indicated that they have not identified any specific concerns but are weighing whether there are any provisions worth fighting over as part of the broader negotiations. They are concerned with some copyright issues not included in the bill, notably broadcasting and resale rights. Interestingly, copyright term extension was apparently not identified as a concern. There was very little progress on the other IP issues - some clarification on IP enforcement on EU demands, but no progress on the text; no progress on patents with some significant divergence on these issues, and no progress on geographical indications. There is Canadian concern that the EU demands on GIs may conflict with trademarks, common names, and have negative economic implications. The department indicated that the GI issue in CETA was separate from the issue in ACTA.
The U.S. DMCA vs. Bill C-32: Comparing the Digital Lock Exceptions
From a Canadian perspective, the U.S. decision - combined with the recent 5th Circuit Court of Appeals ruling linking circumvention to copyright and the USTR decision to cave on the digital lock rules in ACTA - provides a timely reminder of the mistake that is the digital lock rules in C-32.
Looking back, Industry Minister Tony Clement said he wanted forward-looking legislation designed to last ten years, yet the scope of Bill C-32's anti-circumvention exceptions became outdated in less than ten weeks. Canadian Heritage Minister James Moore, when not calling critics "radical extremists," emphasized that Bill C-32 was not identical to the DMCA. While he had the notice-and-notice system in mind, weeks later his comments became accurate since it turns out the DMCA is far less restrictive than C-32.
Just how badly does the Canadian bill stack up? On the two key issues in the bill - digital locks and fair dealing - Canada is far more restrictive than the U.S. Consider:
- U.S. rules contain a mandatory review of anti-circumvention exceptions every three years. There is no mandatory review of the exceptions in the Canadian bill.
- U.S. rules contain an exception for unlocking and jailbreaking a cellphone. Canadian rules only cover unlocking.
- U.S. rules contain an exception for education to circumvent DVD protection to gather a short clip. Canadian rules, despite various new education exceptions, would treat this as an infringement.
- U.S. rules contain an exception for documentary film makers to circumvent DVD protection to gather a short clip. Canadian rules, despite various new creator exceptions for parody and satire, would treat this as an infringement.
- U.S. rules contain an exception for everyone to circumvent DVD protection to gather a short clip to create non-commercial videos. Canadian rules include an exception for non-commercial videos, but do not exempt circumvention.
- U.S. rules contain an exception for e-books designed to facilitate access for the sight impaired. The Canadian rules do not contain a similar exception.
- U.S. law contains a flexible fair use provision that covers everything from recording television shows to making backup copies. Moreover, at least one U.S. appellate court has factored these rules when considering the DMCA. The Canadian rules contain a series of new fair dealing exceptions that are collectively still more restrictive than the U.S. fair use and are still subject to digital locks.
Next ACTA Meeting "Intercessional Meeting" Not Formal Round
Leading Internet Defender Calls Out Anti-Competitive Practices
OpenMedia.ca insists that Rogers Communications data limits require government action
For Immediate Release: July 26, 2010
Just days after video service Netflix announced its expansion into Canada, Rogers Communications announced they will lower the usage limits on some of their plans. The move appears to be a defensive measure to protect the company’s own video services from encroachment by Netflix, which provides unlimited movies and television shows over the internet for a monthly subscription fee.
U.S. Developments Demonstrate Canada's C-32 Digital Lock Rules More Restrictive Than DMCA
First, a significant new appellate court case from the 5th Circuit Court of Appeals has concluded that the restrictions on circumventing an "access control" (ie. a digital lock that restricts access to a work rather than a copy control which restricts copying of a work) are far more limited than previously thought. With language that bears a striking similarity to those arguing circumvention should be permitted for lawful purposes, the U.S. appeals court states:
Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCAâs anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.
In other words, the U.S. court has found that DMCA is limited to guarding access controls only to the extent that circumvention would violate the copyright rights of the copyright owner. This is very similar to what many groups have been arguing for in the context of Canadian legal reform.
Second, this morning the U.S. Copyright Office released the results of its anti-circumvention rulemaking process. The process, which runs every three years, identifies the new exceptions to its anti-circumvention rules. The recommendation covers six exceptions including circumvention of DVDs for short clips for education, documentary filmmaking, and non-commercial videos, circumvention to unlock and jailbreak cellphones, circumvention of video games for testing of security flaws, and circumvention of access controls of e-books where all available e-book editions contain restrictions of the read-aloud function.
While Bill C-32 has a similar exception for locked cellphones, the U.S. version includes both unlocking and jailbreaking to allow users to play unapproved applications on their devices. Moreover, the U.S. DVD and e-book exceptions go much further than the Canadian proposal. In the DVD context, Canadian documentary film makers have raised precisely this concern, yet the U.S. now has an exception for it and Canada would not under C-32. Similarly, the new YouTube exception in the Canadian bill - trumpted as progressive - is still subject to digital locks, while the U.S. has specific exception for it. Taken together, it becomes apparent that the Canadian rules are far more restrictive than even the U.S. DMCA.





