M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was originally posted on�� on September 21, 2022.

On September 7, 2022, Canada’s Minister of Innovation, Science and Industry (the Minister), issued a����on Canada’s Telecommunications Reliability Agenda following the nation-wide Rogers network outage that took place on July 8, 2022. As part of the statement, the Minister provided details on a formal agreement between Canada’s major telecommunications service providers to lend support in the event of another major network outage.

The Rogers network outage had a massive impact across Canada, affecting the wireline and wireless services of millions of Canadians, emergency service providers and small businesses for over 15 hours. This event prompted the Minister to act, giving Rogers and other major telecommunications companies 60 days to enter into an agreement that would guarantee emergency roaming, mutual assistance, and a communications protocol for advising the public and government in the event of future major outages and other emergencies.

In response, the companies agreed to a����that is effective as of September 9, 2022 (the Agreement). Under the Agreement, the companies commit to assisting in the event of a major network outage that affects one of the other signatories. This includes providing support for Canadians to remain connected to their contacts, access 911 services, and conduct business transactions. The companies have also committed to providing timely communications during outages to keep the public and government authorities informed about response and restoration efforts.

The Minister announced that the Agreement marks the first of several steps in Canada’s Telecommunications Reliability Agenda, which will include:

1. the Canadian Radio-television and Telecommunications Commission (CRTC) investigating the Rogers outage and any new measures the company has implemented following the event;
2. the Canadian Security Telecommunications Advisory Committee (CSTAC) creating further measures within the next six months to bolster the reliability of Canada’s telecommunications networks; and
3. a review of all regulatory measures to be implemented that is aimed at strengthening the reliability and safety of Canada’s networks.

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Motivated to compete with Facebook and Google, Bell recently that starting November 16 it will be collecting massive amounts of customer data to deliver targeted advertising. The Office of the Privacy Commissioner of Canada (OPC) that it will be investigating the matter. Canada’s telecom giant is adamant that it will comply with the (PIPEDA), but the extent of its practice raises questions about how PIPEDA’s key concepts should be interpreted and applied.

The extensiveness rather than purpose of Bell’s planned data collection seems to have generated the most controversy. The amount and type of user data that will be are ambitious: Internet history, search terms, location, mobile device type, calling patterns, and television viewing habits. To Bell’s credit, the company has been proactive in informing its customers of the upcoming changes and offers an opportunity to .

At least one academic commentator has about the legality of Bell’s program, focusing specifically on the sensitivity of the information collected. Given how the concept of “sensitive information” has been interpreted under PIPEDA and how Bell treats location data under its own Privacy Policy for location-based services, the reliance on opt-out consent is indeed surprising. that the form of consent must be commensurate with the sensitivity of personal information. Where the information is considered to be sensitive, express consent (i.e. opt-in rather than opt-out) . PIPEDA identifies medical and income records as examples of sensitive information, but otherwise . The OPC has also held that should be considered sensitive. Further, PIPEDA “any information can be sensitive, depending on the context”.

In light of these facts and the amount and type of data Bell intends to collect, it is difficult to mount a persuasive argument that the information proposed to be collected is not sensitive. In fact, there is reason to believe that Bell itself considers location data to be sensitive enough to warrant express consent. Under covering location-based services, use or disclosure of a wireless phone’s location requires express consent. Whether Bell can reconcile the interpretation of “sensitive information” under PIPEDA and its own position on location data to justify the upcoming changes remains to be seen.

Besides consent requirements, PIPEDA : organizations should only collect personal information necessary for the stated purposes (emphasis added). Critically, both the amount and type of information collected, used, or disclosed. A brief survey of PIPEDA complaint investigations reveals that the concept of ‘necessity’ is given its plain meaning. For example, if the purpose is to contact a customer, then only their contact details are necessary and companies should not solicit additional information. While the concept is clear in this simple example, it is severely strained when information is used for purposes that are not well-defined. For instance, for data collected to facilitate targeted advertising, it is exceedingly difficult to determine the scope of what is necessary for that purpose. Presumably, more data allow more precise targeting, which translates into higher advertising revenue. In at least , the OPC has attempted to balance the purpose of collection against the scope of information collected, but it is uncertain how this approach could be applied to targeted advertising. In that case, the OPC held that a full date of birth is not necessary for demographics research and recommended that the company collect only the month and year. The OPC reasoned that marginal gains in accuracy afforded by using the full date did not justify the impact on privacy. It is difficult to predict whether the OPC will attempt to draw a line between financial rewards and privacy, but its investigation should clarify how the concept of ‘necessity’ should be applied.��

In today’s world, businesses like Bell possess a natural data advantage through the services they provide. Since the OPC lacks strong enforcement powers, damage to brand reputation can pose the greatest risk for data gatherers. However, companies with little competition in the marketplace may be little deterred. Given Bell’s position in the Canadian telecommunications industry, we may therefore expect the OPC investigation to be conducted with an increased level of scrutiny.

Anatoly Zhitnik is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode’s Intellectual Property Law Intensive Program. ��As part of the program requirements, students were asked to write a blog on a topic of their choice.

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In response to this statement BCE, Rogers, and Telus (the "Big Three" Canadian telecommunication companies) launched a . They argued that the rules intended to support new entrants into the Canadian wireless market would actually allow large foreign corporations like Verizon to squeeze out Canadian companies and jobs.

Verizon CEO, Lowel McAdam, now says that Verizon the Canadian market. In an interview with Bloomberg news service, he said that the speculation of a Verizon entry into the Canadian market was “way overblown." Nevertheless, Verizon managed to spark a polemic discussion about the new spectrum auction and rules introduced by the government to encourage the introduction of a fourth major telecom competitor into Canada.

In 2012, the government to allow foreign companies to enter the market with some limitations. Companies with are now open to foreign investment, while large carriers are still restricted to one-third foreign ownership. In 2014, the Government plans to����four blocks of the 700-megahertz wireless spectrum to carry voice and data services. As a part of the government’s ongoing attempts to develop competition in the wireless market, the "Big Three" carriers will be restricted to bidding on only one block. The Government further "��from purchasing either Wind or Mobilicity - the current small providers in Canada.

The "Big Three" argue that the rules will favour foreign carriers who enter the market because they would be able to bid on more than one block since they are not incumbents. Two of the four blocks are for new entrants and current speculation is that these blocks will therefore sell for a lower price since the big three cannot bid, making them attractive to a foreign competitor. Verizon is currently four times larger than the "Big Three" combined, which does not seem to be the underdog the government had in mind when it implemented the policy to encourage competition.

The withdrawal of Verizon has not put an end to the protest from the "Big Three". Rogers CEO, Roger Nadir, claims that while welcomes competition, the current policy in place do not provide a level playing field. laid out three loopholes in the rules that still need to be closed. A spokesman for said, “It’s never been about Verizon coming to Canada. It has been and continues to be about fair access to the spectrum.” The "Big Three" maintain that the rules provide an unfair bidding advantage to new entrants at their expense.

In late August, members of the country’s largest private sector union outside of Industry Canada offices, citing their disapproval of the new rules that will open telecom to foreign investment. They fear that the introduction of another provider will result in Canadian job losses as a result of corporate streamlining to remain competitive. The union is also concerned with privacy and security if an American corporation enters the market, especially in light of Verizon’s involvement in recent .

In my opinion, the concern from the "Big Three" may be unwarranted at this point. After all, despite government attempts to diversify the market over the last few years,��remain with the "Big Three". The introduction of Wind and Mobilicity has already resulted in an nearly in the last few years; however, Canadian carriers still have per user. Moreover, Canada has among the most expensive wireless plans according to the and the .��Canada��is a relatively small and rural market, which presents a huge undertaking of development of infrastructure to enter competitively in all areas. Thus, even under the new relaxed rules, one does not simply walk into the Canadian market.

According to digital public affairs analyst Mark Belvis, one poll indicates that��would support entry of Verizon into Canada as they believe it would lead to better service and lower rates. Consumers already feel they have little choice and the attempt by the "Big Three" to gain sympathy did not gain much traction with frustrated consumers who used this campaign to air their grievances against their providers. Continued opposition from the "Big Three" to changes in the Canadian wireless market may prove to be a consumer-alienating strategy in the long run.

Even without the entry of Verizon, feels that “the way we’ve designed our policies, we are going to have more competition in the marketplace from other players.”�� The government does not seem to have changed its position and still wants a fourth major competitor despite the media frenzy caused by the Verizon inquiry.�� The auction remains for January and companies wishing to bid still must submit their applications by September 17^th.

Allison McLean is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.��

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I argue that while it is salutary to re-emphasize the existence of users’ rights as per CCH v Law Society of Upper Canada [CCH], and indeed that these rights are here to stay, it cannot be beneficial for the Court to reinterpret the facts, which is the job of courts and tribunals of first instance, or to make policy, which is the job of government; here, unfortunately, the Court indulged in both. In its reasoning, the Supreme Court of Canada showcases rigid reliance on CCH’s six-factor framework and elevates the framework to the level of law.[3] Ironically, in doing so, the Supreme Court of Canada is actually going against the spirit and the benefit that CCH created for copyright law in Canada and, more specifically, for fair dealing.

Fair Dealing and the Copyright Pentalogy

The Supreme Court of Canada released five copyright cases, commonly referred to as the copyright pentalogy, on the same day in July 2012, setting abuzz all circles in the legal community and beyond. Many fundamental copyright issues were raised: delineating the scope of various rights and the overlapping nature of rights in the Copyright Act, technological neutrality, questions of payment and, more broadly, appropriate standards of review, as each of these cases originated from the Federal Court of Appeal’s judicial review of the Copyright Board of Canada decisions. Among the five cases, two dealt squarely with the doctrine of fair dealing: within certain limits, what a user can do with a substantial part of a copyright work without permission of the owner.[4]

In Canada, the doctrine of fair dealing is statutorily entrenched in the Copyright Act. As a result of the recently enacted Copyright Modernization Act, there are now five allowable purposes for fair dealing: (1) research or private study (s. 29); (2) criticism or review (s. 29.1); (3) news reporting (s. 29.2); (4) parody or satire (s. 29); and (5) education (s. 29).[5] Fair dealing is a question of fact and a matter of first impression.[6] The onus is on the defendant to prove that the dealing (1) fits within one of the enumerated allowable purposes; (2) is “fair”; and (3) for “criticism or review” and “news reporting”, sufficient acknowledgement is given. In CCH, a unanimous Supreme Court of Canada ruled that fair dealing, alongside the other exceptions in the Copyright Act, “must not be interpreted restrictively”[7] and that more or less six factors may be used when assessing fairness.[8] In that case, the Law Society of Upper Canada did not infringe copyright, because its Great Library request-based reproduction services fell squarely within the allowances of the fair dealing doctrine. Lawyers carrying on the business of law for profit were held to be conducting noninfringing research. Research should be accorded a “large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.”[9]

In SOCAN v Bell [Bell], Abella J for a unanimous court agreed with the Board that song previews provided by Internet service providers for consumers constituted fair dealing for the purposes of research and thus were not subject to a tariff. Consistent with the spirit of CCH, the term “research” should be given a “large and liberal interpretation”. For the Court, it would be far too restrictive to limit “research” to its ordinary meaning, as it can include “many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can be undertaken for no purpose except personal interest.”[10]

On the other hand, Alberta (Education) was a heavily contentious case, with a 5-4 split decision over the appropriate deference afforded to the Board and the interpretation of fair dealing. At issue was whether copies made at the teacher’s initiative in Kindergarten to Grade 12 classrooms and provided to students with instructions to read the material were made for the allowable purpose of research or private study.[11] While the matter was sent back to the Copyright Board for reconsideration, the Board later ruled that the copying at issue was fair dealing.[12] For Abella J’s majority, the Board misinterpreted the six fair dealing factors. For Rothstein J’s dissent, the six factors are not statutory enactments; fair dealing is a question of fact, and deference should be accorded to the Board. In both cases, the Court seized the opportunity to clarify the interpretive framework set out in CCH.[13]

In Bell, Abella J clarified that a generous, “low-threshold” interpretation should occur for the first part of the test, with respect to determining the allowable purposes, “so that the analytical heavyhitting is done in determining whether the dealing was fair.”[14] While the Court is quite liberal in the first part of the test—some would say too liberal[15]—it is ironically rigid in the fairness analysis.

What follows is a discussion of the Court’s enthusiasm to rehear facts when it does not agree with the outcome, in specific reference to (1) an emerging user perspective test the Court used for determining both the allowable purpose to warrant fair dealing and the first fairness factor (i.e. the purpose of the dealing), and (2) the Court’s general approach to determine fairness: by methodically examining each of the six fairness factors proposed in CCH. I will tackle the latter first, as I find this development the most troubling.

Featured here is the first part of a book chapter written by Giuseppina D’Agostino, Founder and Director of IP Osgoode, the Founder and Director of the IP Intensive Program, and an Associate Professor at Osgoode Hall Law School. The full chapter is available for download . The book is entitled "The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law" edited by Michael Geist, and is available for purchase or download .

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The post The Arithmetic of Fair Dealing at the Supreme Court of Canada appeared first on IPOsgoode.

Following the bid, campaigns such as and have been created with the purpose of informing the public about the potential consequences of such an acquisition and to persuade the government, the Canadian Radio-television Telecommunications Commission (CRTC), and the Competition Bureau that such a move by BCE should be blocked in order to protect consumers across the country. While there is some doubt as to whether steps being taken by BCE’s competitors are being done with consumer rights as the main motivator, important issues have been raised by both sides concerning the potential deal. From September 10^th – 14^th, 2012, the CRTC��heard arguments��from all parties involved at a and will be presenting their decision in the near future; a decision that could have heavy implications on consumer access to media in Canada, regardless of what is chosen.

According to OpenMedia.ca – the group behind Stop the Takeover – , with Bell, Shaw, Rogers, and Quebecor contributing the overwhelming majority of cable/satellite transmissions as well as raking in the majority of revenues for wireless and internet services. The CRTC has placed limits on the English and French content any one company can control – 35% in the case of English content. With the acquisition of Astral, Bell states that it would own 33.5%, just under this threshold. However, rival and the . Much of the��arguments presented at��the hearing concerned these figures as well as the impact the��Astral deal could have on the Canadian consumer.

During the CRTC hearing on the matter, George Cope – CEO of BCE – , “Canada should not have to wait any longer to deploy a viable, national multi-platform solution, backed by a company with the resources to compete against well-funded global competitors.” Without the content that Astral Media owns, Bell fears that it will not be able to stand up to the likes of Netflix and other companies that have been using updated business models (other than the expensive subscription fee that cable TV is well-known for) in order to attract new customers. However, executives at competing Canadian companies don’t believe this argument. Ken Engelhart, a Senior VP at Rogers (another company against the purchase)��that��a number of cable companies in Canada and the US have launched their own services to compete with Netflix and this makes Bell’s situation no different than that of any other.

One of the issues with the Astral bid that could affect consumers is the possibility that Bell could leverage its new-found position to unfairly overcharge other cable companies that want to broadcast Bell-owned programming. Such increases would then be passed off to consumers, resulting in higher prices and less options for Canadians – one of the issues with having content and distribution controlled by the same company. and have both cited times where Bell has exhibited this type of behaviour, and there is potential for future dealings to follow a similar pattern if the Astral deal is allowed to go forward. In addition, unnecessary duplication of positions between the two companies will mean within the sector.

The government of Canada and the Competition Bureau both have the ability to veto the purchase, whether or not the CRTC does so. However, are unsure as to whether either of those bodies will step in. Making matters more uncertain is the by the Harper government of Jean-Pierre Blais as the CRTC chair. in order to provide Canadian consumers with better accessibility to content and services (a change from the previous objectives under previous chair Konrad von Finckenstein), the decision on this case may probe deeper into the Commission’s motivations.

Adam Del Gobbo is a JD Candidate at Osgoode Hall Law School.

The post Bell Shooting for the Stars: CRTC Holds Hearing on the Purchase of Astral Media appeared first on IPOsgoode.

Background

Tariff 22, which was introduced in 1995 to accommodate music transmitted over the internet, was the subject to two other Supreme Court cases. The first, SOCAN v Canadian Assn. of Internet Providers, , concerned intermediary liability. The other is one of the five cases the Court heard last December, Rogers Communications Inc et al v SOCAN, , regarding whether the transmission of a single download to individual members of the public constitutes communication to the public under of the Act. The issue with Tariff 22 on the SOCAN v. Bell case is in regards to the brief previews offered by online music retailers such as iTunes.

Judicial History

In 2007, the Board decided that SOCAN was not entitled to royalties on short song clips because these uses constituted fair dealing. The Board concluded that previews “offer an excerpt of the work that is long enough for the user to do his research, but short enough and of a sufficiently degraded quality that it cannot replace the complete work” [Re Public Performance of Musical Works (2007), 61 CPR (4th) 353]. The Board also construed the term “research” broadly:

“The Supreme Court of Canada has made it clear that ’research is not limited to non-commercial or private contexts.’ Planning the purchase of a download or CD involves searching, investigation: identifying sites that offer those products, selecting one, finding out whether the track is available, ensuring that it is the right version or cover and so on. Listening to previews assists in this investigation.”

(For more on the Board’s decision, see )

The Federal Court of Appeal upheld this decision, also finding that the previews were within the meaning of the word “research” set out in of the Act; which permits fair dealing for the purpose of research or private study. The Court found that the language of the Act did not invite a narrow interpretation, noting that parliament “chose not to add restrictive qualifiers to the word ‘research’” [SOCAN v Bell, ]. Justice Létourneau, who delivered the judgment, further opined that:

It would not be unreasonable to give the word “research” its primary and ordinary meaning. The consumer is searching for an object of copyright that he or she desires and is attempting to locate and wishes to ensure its authenticity and quality before obtaining it.

He also addressed SOCAN’s contention that the primary purpose of the previews is of a commercial nature. SOCAN argued that the previews were intended to increase sales and profits. However, “this does not exclude other equally important purposes.” Justice Létourneau stressed that “[w]e must consider previews from the point of the view of the person for whom they are intended”.

Supreme Court Appeal

The case was then appealed to the Supreme Court, which held that the use of song previews constituted fair dealing for the purpose of research. Justice Abella, who delivered the unanimous judgment, followed CCH Canadian Ltd. v Law Society of Upper Canada, by allowing the term “research” a large and liberal interpretation:

“Limiting research to creative purposes would also run counter to the ordinary meaning of ’research’, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework.”

(See for a summary on the Supreme Court appeal.)

The Court also stressed that the analysis of whether an activity was done for research ought to be conducted from the end user’s perspective. The same consideration was seen in the sister judgment Province of Alberta v Access Copyright, where the Court said that it was the student, rather the teacher actually making the photocopies, who is engaging in private study.

The topic of research is highly relevant this week, during the . One of the three topics taking the stage during the week and a half of meetings is copyright limitations and exceptions for educational and research institutions. Several draft provisions and definitions have been submitted, most notably from the African Group who highlighted “the need to maintain a balance between the rights of the authors and the larger public interest, particularly in education, research, teaching, and access to information” in their preamble (See ). The definition of “research” has yet to appear in any proposals but the Canadian cases will no doubt lend support to member states pushing for a broader interpretation. Delegates of both South Africa and Nigeria have referred to the recent Canadian fair dealing decisions in a positive manner at Tuesday’s SCCR meeting. In contrast, Canada has remained quiet thus far.

We had been waiting for a solid approach from the Supreme Court on how to interpret fair dealing since Michelin v C.A.W. Canada, and more recently, Canwest v Horizon, , which employed a restrictive interpretation that contrary to the CCH decision. In both cases, the courts rejected the contention that parody does not violate copyright based on of the Act, which allows fair dealing for the purpose of criticism or review. Although the point may very well be moot with the passing of Bill C-11, which includes parody or satire as a new enumerated purpose for fair dealing, had these cases been heard today, they might have had a different outcome. For future cases, fair dealing will likely be hailed as a user’s right rather than a legal loophole, consistent with CCH.

How will this decision affect consumers? According to SOCAN, it won’t. In a released 13 July 2012, SOCAN addressed the question of whether music purchases can look forward to lower prices:

“A decision to take away the right of our members to collect royalties from downloads may mean that approximately three cents from a song will not be collected for the composers who made the work. If this is the case, consumers should not rejoice. It is unlikely that businesses would pass along those savings to consumers, rather than maintain the same prices and increase their own profitability. This was about big businesses trying to increase their profitability at the expense of the creative community.”

“To the best of our knowledge, there’s no significant difference in price point for business models in countries that do not collect this small royalty payment, compared with countries that do have it. In those instances, that means that consumers are not seeing a savings and composers are not receiving compensation. To us, that is unfair.”

However, while consumers may not necessarily see any decrease in prices, they may still benefit from the decision. Had the tariff been allowed, it is possible that “” Either of these options might have resulted in a decrease in sales. Since SOCAN charges a quarterly fee of per download, a reduction in sales might actually hurt them more than losing the preview tariffs.

��

Nancy Situ is a JD candidate at Osgoode Hall Law School.

The post SOCAN v. Bell: A Victory for Fair Dealing, Consumers? appeared first on IPOsgoode.

DPI technology is a tool which provides ISPs the ability to view information transmitted on Internet, such as e-mail exchanges, any uploads and downloads.�� The merits of this technology are in dispute since on one hand, it enables networks to manage traffic, but on the other, it is often used to help target advertisements on these networks. While the technology itself is old, it is being applied in new and creative ways. Bell uses DPI in traffic management by identifying peer-to-peer file sharing so that it can be slowed down. According to Bell, the congestion problems peak between 4:30 p.m. and 2:00 a.m.

While potentially the DPI technology can be used to re-create from Internet traffic a readable record of e-mails, web browsing activity, Voice-over-Internet protocol (VoIP) calls and passwords, that its use of DPI does not extend to other applications, such as streaming applications via Internet radio or You Tube. Bell had earlier also represented that the network does not use any personal identification information of an individual user or have any specific knowledge of a user's real identity or browsing history. This has been accepted by the privacy commissioner, despite the fact that with a simple change in the design, by a simple installation of a filter,

Essentially, of the initial complaints, the only one seen as a problem was the lack of openness about the DPI technology. The to change its service agreement and the frequently asked questions section to notify customers of the fact that it collects and retains personal information through the use of its DPI. What is problematic about this finding is the assumption that by merely updating the privacy information on Bell's website, the consumers will have a true choice- whether to be a part of Bell network or not.

However, the inequality of bargaining power and the reluctance of people to shop for new ISPs may prevent such information to be of any use to the end consumer. It is almost certain that no customer would even contemplate negotiating contracts with network giants, such as Bell. Although it is commendable that the privacy commissioner acknowledged this complaint and invested time and effort to reach its findings, what remains to be seen is whether accepting Bell's word as evidence for its non-involvement in inspecting content and recording private information is right in the long run.

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