Law Bytes

What if copyright law took authors rights seriously?  Many groups claim to do so, but Professor Rebecca Giblin, one of the world’s leading experts on creator copyright, isn’t convinced. Professor Giblin argues that creators are often placed at the centre of the debate only to be largely ignored by other stakeholders. Professor Giblin joins this week’s Lawbytes podcast to talk about her Author’s Interest Project, the latest data, and why Canadian artist Bryan Adams may be on to something when it comes to his copyright reform proposal to benefit creators. The podcast can be downloaded here and is embedded below. The transcript downloadable here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Episode Notes: The Author’s Interest Project Giblin, A new copyright bargain? Reclaiming lost culture and getting authors paid Giblin, Fat horses and starving sparrows: on bullshit in copyright debates Yuvaraj, Reversion laws: what’s happening elsewhere in the world? Credits: Wochitte Entertainment, Hachette Authors Urge Amazon Board To End Contract Dispute CTV News, Bryan Adams speaks in Ottawa, urges change to copyright laws TruTV, Adam Ruins Everything – How Mickey Mouse Destroyed the Public Domain Reagan Library, President Reagan Signing the Berne Convention Implementation Act of 1988 on October 31, 1988 CBC News, Libraries and E-Licensing Transcript by Temi downloadable here.  

For the better part of two decades, Canadian cultural groups have been pressing Canada’s telecom and broadcast regulator, the CRTC, to regulate and tax the Internet. The CRTC and successive governments consistently rejected the Internet regulation drumbeat, citing obvious differences with broadcast, competing public policy objectives such as affordable access, and the benefits of competition. That changed last year when the CRTC released Harnessing Change: The Future of Programming Distribution in Canada, in which it dramatically reversed its approach. Peter Menzies, a former CRTC commissioner and Vice-Chair of Telecommunications, joins this week’s LawBytes podcast to help sort through Cancon funding, Internet regulation, and the CRTC. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Episode Notes: Regulate Everything: The CRTC Goes All In On Internet Taxation and Regulation Harnessing Change: The Future of Programming Distribution in Canada Credits: CBC News, Tax on Netflix and Spotify proposed by CRTC CBC Catherine Tait at Prime Time, @sdbcraig CBC News, Ottawa’s fight with Netflix reignites age-old debate — what is Cancon and who should pay? Standing Senate Committee on Transport and Communications, October 30, 2018 Canadian Heritage, Minister Joly – Creative Canada Speech / Ministre Joly – Discours Canada créatif House of Commons, December 12, 2017

Most treaties are negotiated behind closed doors with no text made available until after a deal has been reached. Yet there is a treaty with enormous implications for the Internet, copyright, and broadcasting that has been hidden in plain sight for the better part of two decades. This week, the World Intellectual Property Organization resumes discussions in Geneva on a proposed Broadcasting Treaty. To introduce WIPO, the proposed treaty, and its implications, Jamie Love of Knowledge Ecology International joins this week’s LawBytes podcast. Love warns that the treaty could extend the term of copyright for broadcast content, create a wedge between broadcasters and Internet streaming services, and even result in new restrictions on the use of streaming video. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Episode Notes: KEI Broadcasting Treaty archives WIPO Broadcasting Treaty brief Credits: House of Commons, June 12, 2013 WIPO, Stevie Wonder Congratulates UN Delegates on Entry into Force of Marrakesh Treaty WIPO, SCCR 37th Session WIPO, Canada Joins Three Key WIPO Trademark Treaties

The House of Commons Standing Committee on Industry, Science and Technology has spent the past year reviewing the state of Canadian copyright law. The review, which is scheduled to result in a report with recommendations for potential reforms, featured hundreds of witnesses representing a wide range of views. To introduce some of the issues and provide some insight into how the review process functions, this week’s LawBytes podcast relies on the audio recording of my committee appearance in December 2018.  It opens with my seven minute opening statement and continues with several exchanges with MPs on issues such as fair use, the USMCA, crown copyright, and anti-circumvention rules, which are often referred to as digital locks. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Episode Notes: The State of Canadian Copyright: My Copyright Review Appearance Before the Industry Committee Credits: Standing Committee on Industry, Science and Technology, December 10, 2018 House of Commons, November 29, 2018 CBC Power and Politics: Copyright Modernization Act CityNews Toronto: Bryan Adams Fights for Artists’ Copyright Laws iFixit Video: DMCA on the Farm

Earlier this month, Innovation, Science and Economic Development Minister Navdeep Bains took his most significant policy step to date to put his stamp on the Canadian telecom sector by issuing a proposed policy direction to the CRTC based on competition, affordability, consumer interests, and innovation. To help sort through the policy direction, the state of the Canadian telecom market, the role of independent companies that rely on regulated wholesale access, and lingering frustration with the CRTC, this week’s LawBytes podcast features a conversation with Andy Kaplan-Myrth, Vice President of Regulatory and Carrier Affairs with TekSavvy, Canada’s largest independent telecom company.  The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Episode Notes: Enough is Enough: Bains Proposes CRTC Policy Direction Grounded in Competition, Affordability, and Consumer Interests Credits: Government Orders CRTC To Reverse Bandwidth Decision, The Hill Watcher, 3 February 2011 New wireless spectrum auction announced, Global News, 12 January 2014 Why is Canada-based Ting is not available for cell phone users in Canada?, Open Media, 1 August 2013 Verizon opts out of Canada, Canoe, 20 March 2018 House of Commons Hansard, 26 February 2019 House of Commons Hansard, 7 December 2018

The first full length episode of the new LawBytes podcast features a conversation with UK Information Commissioner Elizabeth Denham, who leads the high profile investigation into Facebook and Cambridge Analytica. Denham, who previously served as Assistant Commissioner with the federal privacy office and as the British Columbia Information and Privacy Commissioner, reflected on her years in Canada, particularly the Canadian Facebook investigation and concerns with the Google Buzz service. Denham emphasized the need for Canadian legislative reform in order to address today’s privacy challenges. Denham was recently appointed chair of the International Conference of Data Protection and Privacy Commissioners, which she expects will increasingly focus on global privacy standards. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.   Episode Notes: 12th Annual Deirdre Martin Lecture on Privacy Credits: #CambridgeAnalytica: ‘Data crimes are real crimes’ Denham, EU Reporter, 4 June 2018 Facebook Privacy Concerns, CBC News: The National, 17 July 2009 Privacy commissioner urges legislative reform in the wake of Facebook data scandal, CBC News, 17 April 2018 News Update: Google (NASDAQ:GOOG) Unveils Google Buzz: Social Networking for Gmail, TradetheTrend, 9 February 2010 Cambridge Analytica: Whistleblower reveals data grab of 50 million Facebook profiles, Channel 4 News, 17 March 2018  

In recent years the intersection between law, technology, and policy has exploded as digital policy has become a mainstream concern in Canada and around the world. I am very excited to announce the launch of LawBytes: A Podcast with Michael Geist. This podcast will explore digital policies in conversations with people studying the legal and policy challenges, setting the rules, or who are experts in the field. It will provide a Canadian perspective, but since the internet is global, examining international developments and Canada’s role in shaping global digital policy is be an important part of the story. The preview episode is available now and first full episode – a conversation with UK Information Commissioner Elizabeth Denham – will be available next week. All episodes will be available under a Creative Commons licence. You can subscribe at Apple Podcasts, Google Play, or Spotify as well as follow on Twitter at @LawBytesPod.

The Supreme Court of Canada recently brought a lengthy legal battle between Access Copyright and York University to an end, issuing a unanimous verdict written by retiring Justice Rosalie Abella that resoundingly rejected the copyright collective’s claims that its tariff is mandatory, finding that it had no standing to file a lawsuit for copyright infringement on behalf of its members, and concluding that a lower court fair dealing analysis that favoured Access Copyright was tainted. The decision removes any doubt that the Supreme Court remains strongly supportive of user’s rights and vindicates years of educational policy in shifting away from Access Copyright toward alternative means of ensuring compliance with copyright law. Kim Nayyer is the Edward Cornell Law Librarian, Associate Dean for Library Services, and Professor of the Practice at Cornell Law School. She appeared before the Supreme Court in this case, representing the Canadian Association of Law Libraries as an intervener. She joins the Law Bytes podcast to talk about the case and its implications for the future of copyright, education, and collective rights management. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Access Copyright v. York University Credits: Supreme Court hearing, Access Copyright v. York University

Last week was a busy one in the wireless world in Canada. Just as people were debating the proposed Rogers – Shaw merger, the CRTC released its long awaited wireless decision involving the possibility of mandated MVNOs or mobile virtual network operators. While the CRTC notably concluded that Canadian wireless pricing is high relative to other countries and attributed that to insufficient competition, it ultimately was unwilling to fully embrace a broad-based mandated MVNO model. To help break down these recent developments, joining the Law Bytes podcast this week are Dwayne Winseck, a professor at the School of Journalism and Communication at Carleton University and the director of the Canadian Media Concentration Research Project, and Ben Klass, a senior research associate at the Canadian Media Concentration Research Project and board member at the Internet Society Canada Chapter. They both join the podcast in a personal capacity representing only their own views. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: CRTC Review of Mobile Wireless Services, CRTC 2021-130 Credits: CBC News, CRTC’s Opening for Smaller Wireless Companies Disappoints Advocates

Last week, the European Commission launched what promises to be a global, multi-year debate on the regulation of artificial intelligence. Several years in development, the proposed rules would ban some uses of AI, regulate others, and establish significant penalties for those that fail to abide by the rules. European leaders believe the initiative will place them at the forefront of AI, borrowing from the data protection framework of seeking to export EU solutions to the rest of the world. Céline Castets-Renard is a colleague at the University of Ottawa, where she holds the University Research Chair on Accountable Artificial Intelligence in a Global World. She joins the Law Bytes podcast to discuss the EU plans, their implications for Canadian AI policy, and the road ahead for the regulation of artificial intelligence. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: European Commission, Proposal for a Regulation on a European approach for Artificial Intelligence Credits: EuroNews, ‘The higher the risk, the stricter the rule’: Brussels’ new draft rules on artificial intelligence

The public debate on Bill C-10 recently took a dramatic turn after the government unexpectedly removed legal safeguards designed to ensure the CRTC would not regulate user generated content. The resulting backlash has left political columnists comparing Canada to China in censoring the Internet, opposition MPs launching petitions with promises to fight back against the bill, and Canadian Heritage Minister Steven Guilbeault struggling to coherently answer questions about his own bill. Cara Zwibel is the Director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association and one of Canada’s leading experts on freedom of expression. She joins the Law Bytes podcast to talk both about Bill C-10 and the free speech risks that may come from another bill that Guilbeault has been discussing that could include website blocking, a social media regulator, and mandated Internet takedowns. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Credits: CBC News, User-Generated Content Exemption Was ‘Not Necessary’: Guilbeault

This past week Bill C-10, Internet free speech, and the government’s digital policy agenda went mainstream as a lead topic in government, the media, and among many Canadians. This week’s Law Bytes podcast departs from the standard format as I explain why the bill has suddenly become a hot topic, how the government has been inconsistent and at times incoherent in its attempts to justify the bill, and why the concerns regarding freedom of speech and CRTC over-regulation are absolutely justified. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Credits: House of Commons, May 5, 2021 House of Commons, November 18, 2020 Standing Committee on Canadian Heritage, April 23, 2021 CBC News, User-Generated Content Exemption Was ‘Not Necessary’: Guilbeault Standing Committee on Canadian Heritage, May 6, 2021 CTV News, Question Period, May 9, 2021

The global struggle for access to COVID-19 vaccines took a dramatic turn recently as the Biden Administration in the United States unexpectedly reversed its longstanding opposition to a patent waiver designed to facilitate access to vaccines in the developing world. The shift seemingly caught many by surprise. Pharmaceutical companies were quick to voice opposition and U.S. allies found themselves being asked to take positions. That was certainly the case in Canada, where the Canadian government has steadfastly refused to support the waiver with repeated claims that it had yet to make a decision. Ellen ‘t Hoen, is a lawyer and public health advocate with over 30 years of experience working on pharmaceutical and intellectual property policies. From 1999 until 2009 she was the director of policy for Médecins sans Frontières’ Campaign for Access to Essential Medicines. In 2009 she joined UNITAID in Geneva to set up the Medicines Patent Pool (MPP). Ellen is currently the director of Medicines Law & Policy and a researcher at the University Medical Centre Groningen. She joins the Lawbytes podcast this week to talk about the fight for a patent waiver and the implications of the Biden decision for global access to COVID vaccines. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Credits: CNBC, Biden Administration Supports Waiver of Patent Protections for Covid Vaccines

Weeks into a high profile debate over Bill C-10, the issue of discoverability of Canadian content has emerged as a policy tug of war between supporters that want the CRTC to intervene by mandating the discoverability of Canadian content on sites such as Youtube and Tiktok and critics that argue the approach would raise significant freedom of expression and net neutrality concerns. But what exactly is “discoverability” and how would it impact both users and the thousands of Canadian creators that have already found success on digital platforms? Fenwick McKelvey is a communications professor at Concordia University who has written more about the discoverability and algorithmic media  than anyone in Canada. He has regularly participated in CRTC hearings and was the co-author of a leading study on the issue commissioned by Canadian Heritage. He joins the Law Bytes podcast to talk about discoverability, his frustrations with its implementation in Bill C-10, and the potential consequences for Canadian creators. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Credits: Standing Committee on Canadian Heritage, May 14, 2021

Communications issues have been in the political spotlight in recent weeks with the controversial CRTC decision to reverse a pricing decision on wholesale broadband that swiftly led to calls for the resignation of Commission Chair Ian Scott as well as the ongoing battle over Bill C-10, which envisions granting extensive new powers to the CRTC. Konrad von Finckenstein is a former chair of the CRTC, having led the Commission during a similarly contentious time during debates over net neutrality. He has since been outspoken on communications policy issues, including arguing that Bill C-10 should be scrapped and re-written. He joins the Law Bytes podcast to talk about the CRTC, the recent decisions, and what he thinks a better approach to Internet and broadcast regulation would look like. The podcast can be downloaded here, accessed on YouTube, and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Credits: Question Period, House of Commons, June 4, 2021