Following the publication of the famous photo on Twitter, many groups and individuals weighed in on who might actuallyÌęhold the copyright in the photograph. Twitter is for users that, “You retain your rights to any Content you submit, post or display on or through the Services”, but did Ellen own the copyright in the first place?Ìę, American , and the felt the original copyright holder was Bradley Cooper, as he was theÌęsmartphone camera holder and operator. Photographers often hold copyright in their works because, in most cases, .

The Associated PressÌę that Ellen Degeneres held the original copyright as theyÌę for their editorial use of her selfie. American entertainment lawyer Eric Spiegelman Ìęthat Ellen holds the copyrightÌębecauseÌęshe is the ultimate producer of the selfie. “At that moment, the services of Bradley Cooper were employed by Ellen Degeneres for some non-financial compensation (the added fame of being a part of Hollywood history, perhaps),” states Spiegelman.

Legal Week brought upÌęan important point that few within the entertainment industry raised – defined in . In that legislation, it states that a work created within the scope of employment is the property of the employer. At first blush, it’s unlikely that a selfie wouldÌęfall within the scope of show-hosting duties; however, it’s in the realm of possibility that such works could have been foreseen and included within the contract between Degeneres and the Academy of Motion Picture Arts and Sciences. Others thought Samsung own the photo as part of its $20M advertising and technology supply with the Academy as one of the program’s sponsorship deals.

Ultimately, it doesn’t much matter for the average social media user. As an Amercian legal blogger in her post, commentators can use the image under the US’ fair use exception.

Fair use – as outlined in – provides a list of exceptions to what might otherwise be copyright breaches. Included in this list are situations where theÌęuse of the work is for criticism, comment, news reporting, teaching, scholarshipÌęor research. It also sets out the following four factors that should be considered to determineÌęif the use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
   
   

The coverage of the copyright debate provides a relevant example of what could fall into any of the criticism, comment, news reporting or teaching fair use exceptions. Many of the outlets have implicitly relied on this law when posting up a copy of the selfie alongside their coverage.

The Canadian Comparison

It’s my opinion that the laws in Canada are similar when applied to the "Ellen Selfie" case.

The initial question would be one of contract law – and specifically whether any of the clauses within Degeneres’ hosting contract with the Academy or Samsung’s sponsorship contract with the Academy assigned the rights to this work. emphasizes that works made under the course of employment can mean that the employer would be considered the first owner of copyright.

Barring this, then the debate boils down to whether the creator of the photo was Degeneres or Cooper. Both sides offer compelling arguments, and a potential outcome could be that the stars are co-authors in copyright as joint collaborators (particularly as two artists participating in live art creation at an industry event). It’s possible that the additional actors featured in the photo could make a joint authorship claim. But as participants further removed from the production and posting of the photo, the more interesting aspect of legal rights for them would be under the topics of privacy and personality/image rights, which are not at issue in this blog post.

Ultimately, as in the US with their fair use exception, fair dealing would cover most Canadians’ usage of the photo. Sections 29, 29.1, and 29.2 of the cover exceptions to copyright infringement related to research, private study, education, parody or satire, criticism or review, and news reporting. A generous interpretation – as argued by the Supreme Court in , and – supports Canadian news outlets and social media users wanting to share and comment on the Oscar photo. Similar to the US’ factors for evaluating fair use, the Canadian common law has six factors it considers, outlined in CCH:

1. The purpose of the dealing;
2. The character of the dealing;
3. The amount of the dealing;
4. The alternatives to the dealing;
5. The nature of the work; and
6. The effect of the dealing on the work.
   
   

Conclusion

As an avid follower of copyright jurisprudence, the most exciting part of the Oscar seflie debate has been the very existence of the debate itself. To see so many bloggers and mainstream news outlets covering the question of copyright in the photo has been incredible.

Copyright literacy is crucial, especially for countries and industries that fancy themselves knowledge based or rich in arts and culture. Copyright debates left exclusively to the domain of lawyers diminish the important social and cultural ramifications of such debates.

Because let’s face it, no selfie from a legal awards event has ever been retweeted three million times.

Denise Brunsdon is an IPilogue Editor, a Western University JD/MBA Candidate, and researcher supported by the GRAND (Graphics, Animation and New Media) NCE.

The post The Academy Awards Selfie Rights Debate appeared first on IPOsgoode.

Dispute Details

The Typo Keyboard is a $99 iPhone case that attaches an extended QWERTY keypad to the bottom of the phone. The accessory’s keypad closely resembles that seen on BlackBerry devices.

Blackberry filed the lawsuit with the US District Court for Northern California, the home state of Typo’s operations. The filing accuses Typo of infringing keyboard patents , , and . BlackBerry is asking for an injunction as well as an eventual jury trial.

”ț±ôČ賊°ì”ț±đ°ù°ùČâ’s Position

”ț±ôČ賊°ì”ț±đ°ù°ùČâ’s claims rely on two main points, namely that the Typo keypad is a clear and intentional misappropriation of ”ț±ôČ賊°ì”ț±đ°ù°ùČâ’s trade dress, and also that the trade dress is a key and distinctive part of Blackberry’s value proposition. (Trade dress is a term of art referring to an item’s visual characteristics which act as a source identifier. The concept is similar to the "distinguishing guise" in Canadian trade-mark law.)

“This is a blatant infringement against ”ț±ôČ賊°ì”ț±đ°ù°ùČâ’s iconic keyboard, and we will vigorously protect our intellectual property against any company that attempts to copy our unique design,” said BlackBerry General Counsel and Chief Legal Officer Steve Zipperstein about the suit. “From the beginning, BlackBerry has always focused on offering an exceptional typing experience that combines a great design with ergonomic excellence,” continued Zipperstein. “We are flattered by the desire to graft our keyboard onto other smartphones, but we will not tolerate such activity without fair compensation for using our intellectual property and our technological innovations.”

”ț±ôČ賊°ì”ț±đ°ù°ùČâ’s outlines in great detail, and with images, its keyboard’s intentional design functionality. Shapes, curves and frets are all included in the intellectual property rights that BlackBerry holds and argues Typo’s keyboard infringes.

Typo’s Response

Typo argues that the QWERTY keyboard is too long-standing to be patented, and that they put significant work of their own into creating their product.

Typo initially responded with this comment to :

“We are aware of the lawsuit that Blackberry filed today against Typo Products. Although we respect BlackBerry [sic] and its intellectual property, we believe that ”ț±ôČ賊°ì”ț±đ°ù°ùČâ’s [sic] claims against Typo lack merit and we intend to defend the case vigorously.ÌęWe are excited about our innovative keyboard design, which is the culmination of years of development and research.”

Author Analysis

I have to admit, even as a BlackBerry fan, I found Typo’s initial messaging compelling. It seems unrealistic for there to exist a patent on a QWERTY keyboard slapped onto a mobile device. Surely the degree of ubiquity is such that any specifications can’t matter immensely.

”ț±ôČ賊°ì”ț±đ°ù°ùČâ’s filing, however, outlines the extensive thought and detail poured into its keyboard. Reading the filing is like catching a glimpse of the recipe for Blackberry's "secret sauce".

Lines like, “
 the Bold featured the use of curved bars (referred to as “frets”) above each row of keys. Each of the keys in the top three rows is a roughly square shape, and arranged like the keys on a piano, without any significant space or material between them horizontally,” and “The Q10’s physical keyboard continues to incorporate bars above the rose of keys having the distinctive sculpted appearance of the thumb-optimized ergo-surf design,” make it apparent that the BlackBerry keyboard was not a happenstance success, but rather a major consideration in ergonomics and design.

More to the point, to me it seems as if the Typo keyboard is a direct replication of this design. In that opinion, I am not alone; the tech community also the similarities.

Even Seacrest hinted at the genesis of the Typo keyboard in . When the interviewer commented, “So it’s the best thing about the BlackBerry, within the iPhone,” Seacrest's response was: “That’s kind of how this came to fruition.”

”ț±ôČ賊°ì”ț±đ°ù°ùČâ’s confidence in their claim is evident in their choice for jury adjudication. It takes a strong claim to believe that a citizen jury will appropriately comprehend the basis for a claim in a technology patent case. But again, based on the detail of ”ț±ôČ賊°ì”ț±đ°ù°ùČâ’s intellectual property rights and the initial response of tech commenters openly admitting the design similarities of the devices, the claim appears to have merit.

From a legal perspective, the most rational response is likely for Typo and BlackBerry to settle, with Typo paying a portion of profits to BlackBerry in design royalties.

From a business perspective, however, BlackBerry may wish to take this to court to permanently shut down Typo’s production. In the grand scheme of the smartphone wars, allowing the existence of any product that allows non-BlackBerry devices to sport a Blackberry-esque keyboard is a threat to BlackBerry's market share and profits. The smartphone market is intense, with companies involved constantly jockeying for positions better than the rest; BlackBerry could easily decide that committing to a legal battle and winning it outright is more important than ceding any ground that will undermine its competitive advantage.

Denise Brunsdon is an IPilogue Editor, a Western University JD/MBA Candidate, and researcher for GRAND (Graphics, Research and New Media) Centre and Commercialization Engine.

The post Would a Keyboard by Any Other Name Feel as Sweet? BlackBerry Sues Ryan Seacrest’s Typo appeared first on IPOsgoode.

In Justice Campbell found a clear infringement of the when the defendant Hernandez streamed and allowed for download an 700 episodes between his two websites “Watch The Simpsons Online” and “Watch Family Guy Online.”

As the judge stated in his decisions, this fine is meant to release the hounds on illegal downloading and streaming communities.

Statutory damages, elected by Twentieth Century Fox in this case, would be insufficient to achieve the goal of punishment and deterrence of the offense of copyright infringement in this case. Hernandez’s repeated, unauthorized, blatant, high-handed and intentional misconduct, and his callous disregard for the Plaintiff’s copyright rights, is deserving of the penalty of punitive damages.

The damage award breaks down into $10M in statutory damages under , $500,000 in punitive damages and $78,000 in costs.

Section 38.1 of the Copyright ActÌęoutlines that judges may consider three relevant factors in awarding statutory damages: the degree of good faith of the defendant, the conduct of the parties before and during the proceedings, and the need to deter other infringements in question. In addition to the deterrence motivation, the judge found that Hernandez violated the Copyright Act in bad faith and for commercial purposes through pay-per-click ads on the site. (And you don’t win friends with bad faith.)

As outlined in the judgment, Hernandez easily met the core technical requirements for infringement by doing the following with the video content: copying it onto a computer system, uploading it to a server, creating links to the server, and enabling the public to access the material through the internet.

For those saying, “What the deuce?” to this damage award, in my opinion, it is not completely outrageous on its face.

Justice Campbell provided a strong synopsis of copyright damage types, sizes and relevant factors in . There he reminds that the CopyrightÌęAct dictates a fine of between $500 and $20,000 per infringed work depending on various considerations.

Pursuant to s. 38.1(1) of the Act statutory damages may be awarded “in a sum of not less than $500 or more than $20,000 as the court considers just”, with the proviso that, pursuant to s. 38.1(3), even the minimum amount can be lowered on the basis of proportionality of damages to the infringing activity, “as the court considers just”. Pursuant to s.38.1(5), the following factors are to be taken into consideration in awarding statutory damages: the good faith or bad faith of the defendant;Ìęthe conduct of the parties before and during the proceedings; and the need to deter other infringements of the copyright in question.

At 700 episodes of evidence, a $10M statutory court awarded $14, 285 in damages per episode, is certainly within the legislatively prescribed range.

In an interesting approach, the plaintiff didn’t put forward a defence at trial. It doesn’t take a lawyer to know that this “If anyone needs me, I’ll be in my room” approach is a bad idea. Judging from , it’s unlikely his thoughts on the issue – that he didn’t think he was doing anything wrong and also offered links to purchase Fox materials – would have mitigated damages significantly. I don't think it would have hurt him much either.

Since Fernandez didn’t actively engage with the legal system, and seems to treat access to others' creative works as a right, I’m not prepared to side with him. Nor am I prepared to side with the judge in this case or creators' rights advocates. The extremism of this judgment reinforces the David versus Goliath archetype of copyright battles. Is it reasonable to expect a 23-year old to pay $10M in damages? I doubt it. Granted, it could be argued that the purpose of the statutory damages award in this case is to send a message rather than receive compensation. In my mind, awarding these symbolic damages sets a dangerous precedent. Without knowing how much money Hernandez made from the internet ads, or how much Twentieth Century Fox lost in sales, I think it would have been more reasonable to treat each season of each show as a breach. Perhaps I've been soured by the progressive decline of these shows in recent years.

Ultimately, there's a bigger problem here. We have a generation of young people who are drastically out of step with the law as it stands. It seems most of them, like Hernandez, know some of the contours of the law but disagree with it. The law's purpose is to protect creators - defending their income and sustaining their ability to create - but it is also to protect the interests of the public and further the public domain. When applying it against the interests of 23-year-old kids, it's no wonder young people think Goliath writes the rules. Any damage award would have sufficiently sent the message that infringing copyright is wrong. In my opinion, awards this extreme make one wonder if we're achieving the objectives of the Copyright Act and if we are, whether we need to rethink those objectives.

The post No Beer and No TV Makes Judge Levy $10M fine for Simpsons, Family Guy Streaming appeared first on IPOsgoode.

Whether you’re a law student interested in public sector law, regulated industries like banking or healthcare, technology trends or information management, this course is for you. IP Osgoode extends a warm thank you to Williams and Power for their time for the interview as well as their passion for the study of privacy and data protection.

What drew you into the privacy and big data field of law?

MP: While with the Department of Justice in the 1990s I served as Coordinator of the Department’s Electronic Commerce Secretariat. I was one of the principle authors of the Electronic Documents Act. When that bill was merged with the then Personal Information Protection Act, literally at the last minute, I had to learn about that statute. Later, when I left government for private practice, the information security aspects of my law practice found me explaining privacy obligations to clients and the privacy law practice evolved from there. Privacy law represents the legal side of a juxtaposition of consumer/human rights/civil liberties law with technological innovation, which I find fascinating. You can literally “wait a moment” and see new legal issues arise as the consequences of technology deployment play out.

JW: I became interested in this area through taking a privacy law course with David Loukidelis and Murray Rankin. Privacy is a very broad (and to some degree nebulous) concept that has attracted attention from a wide variety of disciplines, including psychology, philosophy, economics and computer science. In addition to being notoriously difficult to define, it is intertwined with other areas of law, including constitutional and commercial law. There are some very deep problems in this area, both in terms of theory and practice. It also turns out that privacy is very fertile ground for computer scientists. There is a rapidly expanding body of work in both industry and academia that presents techniques to address privacy risks posed by data aggregation, data mining, ubiquitous computing, social networks and other technologies. While some areas (e.g., anonymization methods for data) have advanced rapidly, a lot of work remains.

How do you feel Canada is doing compared to US/EU re: data privacy?

MP: In terms of law, generally I think we’re in a better position that the US in that our comprehensive approach can deal with evolving issues. The American “sectoral” approach may or may not be able to address something new. However there are aspects of American law — genetic privacy, for example, that are further ahead of Canada. I also think the European approach, while also comprehensive, is more regulatory in nature and more problematic in operational terms. In some respects, governments in Canada think “privacy” as a legislative issue is “done” and I don’t see that in Europe or the US. I think the future evolution of privacy law in Canada will occur at the provincial level because of the constitutional limitations of the federal government in this area. For example, “revenge porn” can’t easily be dealt with under a PIPEDA/PIPA framework aimed at commercial exploitation of personal information.

JW: That’s a tough question. Canada has really drawn inspiration from the US, not only from its jurisprudence but also for some of the fair information practices. Nevertheless, our data protection regime was really crafted in response to developments in the EU. As Michael mentioned, we have a comprehensive approach that is applicable across industries. There are some gaps and weaknesses in our law, of course. Select sectors in the US are definitely ahead of their Canadian counterparts, and I think that the FTC likely inspires more terror than our privacy commissioners. Comparing the two systems is difficult, and perhaps fertile ground for a paper.

Is "big data" hype all it's cracked up to be? Do we have the person-power capacity in Canada to properly utilize it?

MP: Data analytics, which is what “big data” is all about, is fine in theory, with a lot of benefits both at the institutional and individual level. However, we’re far from achieving those benefits in that organizations in Canada, whether large or small, have immature data management regimes. I suspect those benefits will come but not before a lot of time, effort and money is wasted figuring out how best to get them. The “cloud”, as a concept, first arose in the 90s and is only gained traction in the last few years. Data analytics may follow a similar timeline.

JW: One has to be careful with buzzwords. Data aggregation and analysis has been around for decades, and a brief look at the work of Arthur Miller and Alan Westin shows that legal scholars have been concerned about these activities since the late 60’s. Since then, computing power and availability has improved significantly, the amount of data collected has grown, and there are some novel techniques that complement traditional methods of statistical inference.

I do think large-scale data analytics is going to be very useful as a tool for disciplines like medical research, materials science, biology, urban planning and ecology. However, a lot of the techniques are not easy to deploy. There are major issues with data acquisition, data quality/cleansing, choosing appropriate methods, and validating the resulting models. Some techniques work best with massive amounts of data and computing power.

The firms that have the requisite resources (both human and computational) and tacit knowledge have a major advantage. As a result, most of the people with the background for large-scale, distributed machine learning and data analysis are being drawn to the US.

I think it will be difficult for Canada to compete. Innovation is unlikely to arise from those large firms (e.g., banks and insurance companies) or government agencies that have experience with traditional data analytics. Startups in Canada don’t have access to the scale of funding available in the US, and it doesn’t make sense for promising ventures to stay. This also affects human resources; while Canada has a few world-class statistics and computer science departments, the small number of industry-oriented PhD graduates from those programs will likely be lured south.

How effectively are federal and provincial privacy commissions protecting Canadians' personal data? What are some of their challenges?

MP: The effectiveness of Privacy Commissioners is constrained by the legislation we have in Canada, which defines their roles, and their budgets. I think they do the best they can but there are limitations and we should ask ourselves whether we our expectations are too high and whether we should rely too much on them. As for challenges, I suspect the answer varies depending whether you’re speaking about the public, private or healthcare sectors. Each has their own issues.

JW: I think they have had a lot of influence, but their effectiveness is circumscribed by their legal powers and budget. Given their limited resources, I think they have been quite effective at promoting awareness of privacy issues and investigating complaints. The federal commissioner has been particularly active in sponsoring relevant research. Apart from obvious challenges like resourcing, it is difficult to keep up with advances in technology. Another challenge arises from the fact that they have fairly limited powers to make orders or impose monetary penalties.

"Young people don't care about privacy" is a common retort to proponents of ethical and contentious data collection. Do you believe this to be true?

MP: True? Not at all. That is a general statement concerning a complex subject. How I define my “privacy interests” may be different from that of a 16-year-old. “Young people” may have different, more nuanced notions of privacy but they are there. And for both of us, our requirement/need for privacy evolves as we age. I tend to believe that privacy — in all its forms — is an inherent aspect of the human condition.Ìę If we don’t have it when we need it, we’re somehow less than human.

JW: A fair amount of empirical research has been done on this issue, and while there are some pessimistic results, it is clear that young people do care about privacy. However, privacy is ultimately a social norm that is expressed through a variety of practices in a surrounding social context. The way that people interpret and achieve privacy differs according to such factors as culture, communication modalities and individual preferences. I don’t think young people care less about their physical privacy, but they do differ from older generations in the way that they think about online privacy.

The post An Interview with James Williams and Michael Power: Putting Privacy and Data Protection Under the Lens appeared first on IPOsgoode.

The internet is not a lawless wild west. Images on the internet are not automatically public property – copyright, personality rights and all other aspects of the law apply. This article will list out the most relevant areas of the law and then analyze the situations of international dating using Canadian headshots for dating or porn site advertisements according to the each legal point.

Relevant Canadian Law to Date – A Primer

Scraping in the Law

The issue of general material scraping arose in the 2011 Supreme Court of British Columbia case . The court struggled with defining scraping in order to apply the law to it.Ìę The judgment included the opinion of law Professor and copyright expert in explaining that scraping content was allowable if it was indexed and transformative. Indexing is a broad term for the interconnectedness of the internet through hyperlinks and meta data that web crawlers use for searching and organizing internet material. Because the judge found the scraping in the Century 21 case qualified as a form of indexing, the issue of whether scraping was transformative was not relevant to his decision. Professor Trosow’s comment directly quoted in paragraph 53 of the judgment remains helpful,

“The relevant question in my view is whether the materials are being utilized in a transformative manner in order to provide a usable and informative aid for the end-user searching for information about listings.”

The judgement includes a thorough legal summary of the concept of transformation – which I will summarize as any change that adds something new to the original expression, thus creating a new work. The concept is used primarily in American law, but was also referenced and described in the 2002 Supreme Court of CanadsaÌęcase, .

International Servers and the Law

The Supreme Court confirmed copyright liability for servers outside Canada. 2004’s stated, “A content provider is not immune from copyright liability by virtue only of the fact that it employs a host server outside the country.” This is a digital extension of of the ,

27. (2) It is an infringement of copyright for any person to [
]Ìę(b) distribute to such an extent as to affect prejudicially the owner of the copyright. [
] a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it. [emphasis mine]

Responsibility Regardless of Intent

The Small Claims Court of Yukon disregarded the “accident” defence in a 2012 digital website photo theft case that closely mirrors the Rehtaeh Parsons one at hand. A tour operator photo ended up on the website of its direct competitor. As stated by the Court in paragraph 12 of ,

“At the end of the day, it remains unclear how the plaintiff’s aurora photo found its way onto the defendant’s computer and website.Ìę However, it is not a defence to the present action that the copyright infringement was inadvertent.Ìę The plaintiff is still entitled to damages equal to the loss he suffered from the infringement."

Personality Rights and a Person’s Image

Identity exploitation is also a tort that is potentially relevant to photos on the internet. As I’ve outlined in a prior about a recent digital extension of personality rights,

The Ontario Court of Appeal’s 1997 decision outlined that the two requirements to satisfy the tort are identity exploitation for commercial purposes, and exploitation that clearly captures the personality of the plaintiff. The test for commercial purpose was solidified in 1996 in , which outlined the need for the likeness to be predominantly connected with the sale of the consumer merchandise.

At the root of this issue is the principle from the 1977 Ontario Supreme Court Decision that stated

". . . it is clear that Mr. Athans has a proprietary right in the exclusive marketing for gain of his personality, image and name, and that the law entitles him to protect that right, if it is invaded."

Photo Privacy in Quebec

is not within the digital sphere, but it is applicable as with regards to personality rights issues. Here in 1998, the Supreme Court confirmed, using the Quebec Civil Code and the Quebec Charter, that there is privacy infringement whenever an image is published without consent if the person is recognizable. It is unclear if such a ruling would hold Canada-wide, but it is a possibility.

Fair Dealing

The Canadian law provides for copyright violation in cases of fair dealing in .ÌęResearch, private study, education, parody or satire, criticism or review, and news reporting are all justifications for works use that do not infringe copyright. Some recent court interpretations of fair dealing law were recently released by the Supreme Court inÌę,Ìę andÌę. Taken as a whole, they confirm a generous interpretation of fair dealing that asserts the user right as a defence. This is particularly true of the enumerated education principle, which has now been broadly expanded to more closely match the US’ fair use exemptions for academic institutions.

User Waivers from 3^rd Party Photo Hosting

Some social media sites from which the photos are scraped require users to give up their personality or photo rights. There has yet to be a common law case in Canada or the US on the issue of personal social media site waivers. There are two closely related cases, decided divergently.

The 2012 US case , determined that website waivers are most valid when they require an affirmative acknowledgment of the contract. Conversely, in the 2011 Canadian case the Supreme Court of British Columbia determined that where there was an industry standard as such, proceeding into a website without express agreement could constitute a contract.

Application to Cases Like Parsons’

In my opinion, I don’t think dating or porn sites that use images of Canadian women have a strong legal case to defend themselves from potential legal action. Using the prior list of relevant legal issues, I will make a cohesive argument in favour of the Canadians whose images are used in these advertisings.

Scraping and the Law

The photos may be scraped off a prior website, but they are likely not indexed or hyperlinked to that prior website. The creators of these advertisements likely want there to be little link between the original source photo and the eventual advertisement featuring the photo. Thus, by the definition presented in Century 21, the photo reuse is a new type of non-indexed scraping.

Without indexing, the only remaining argument is transformative. The advertisement creators could argue that by adding in additional text – in the example of the Parsons case “"meet Canadian girls and women for friendship, dating or relationships” – that the addition is significantly transformative. I would argue that because the advertisement doesn’t change the photo, but just adds or overlays texts, the advertisement is arguably drawing attention to the original work rather than creating a new work.

International Servers and the Law

The Supreme Court statement fromÌę is helpful because it keeps open the possibility that Canadians whose photos are in circulation on any server around the world can potentially use the Canadian legal system to defend their rights. In the case of the Parsons dating site, which was based out of Vietnam, it means that Canadian courts could go after the Vietnamese infringers.

Responsibility Regardless of Intent

TheÌę case is an indicator of the direction courts might take in response to plaintiffs claiming ignorance. This is immensely important in regards to technology-based conflict. It’s important for court judges to demand parties in a conflict demonstrate a reasonable amount of understanding of and responsibility for their actions. In the case of dating site administrators, it’s my strongly held opinion that “I didn’t know it wasn’t okay to take photos of young women off the internet and put them in my Facebook ads” will not protect these parties as it is consistent with the general legal axiom that ignorance of the law is an unacceptable defence.

Personality Rights

Identity exploitation also presents a strong tort for Canadian victims of image scraping. To have one’s photo used in an advertisement without consent meets the Krouse and Gould threshold because the dating or porn site garners a commercial purpose. The advertisement facilitates traffic for new member signups on the porn or dating site. In the advertisement at hand, Parsons likeness is clearly captured; it is unmistakably her face.

Photo Privacy

Similarly there is a strong case when theÌę precedent is considered. That said, there is a chance it might not hold for victims outside Quebec, as indicated by the use of Quebec-specific law in the judgment.

Fair dealing

It’s my opinion that image scrapers would be hard-pressed to find any fair dealing justification for their activities in either the Copyright Act or even Supreme Court decisions expanding user rights via fair dealing.

I don’t believe companies trolling the internet for photos – with software or by hand – have the protection of a fair dealing defence. Writ large, I feel the culmination of all recent, major copyright cases in Canada makes clear this principle of application; whether the fair air dealing exception is applied broadly or narrowly based on the public good or commercial profits accrued. The more public good provided, the more broad the fair dealing exception. The more commercial profits provided, the more narrow the fair dealing exception. By this broad, over-arching principle, the use of Canadians' images by dating and porn sites provide us little public good but do provide the site administrators profits. Instinctively, the companies using these images would face a more narrow application of the fair dealing exceptions.

But this conceptual analysis is insufficient to discard fair dealing altogether. To dig into the heart of this legal matter, the companies engaging in this behaviour would have to prove that their dealing falls within one of the enumerated principles of fair dealing, and then would have to prove, by a contextual analysis of the facts, that their dealing is fair in accordance with the six factors as elicited in :

• the purpose of the dealing;
• the character of the dealing;
• the amount of the dealing;
• the alternatives to the dealing;
• the nature of the work; and
• the effect of the dealing on the work
  
  

It is my opinion that it is unlikely for the analysis to surpass the first stage of the fair dealing test, as the dealing does not fit into any of the (research, private study, education, parody, satire, criticism or review, and news reporting). However, if it were to pass this stage of the fair dealing analysis, it is my opinion that a contextual analysis of the facts would result in a finding that no fair dealing exists in this case. I would arrive at this conclusion by arguing that there are legitimate alternatives to the dealing (models could be hired and photoshoots done by the advertisers), that the amount of the dealing is unfair (pictures are being substantially reproduced), that the character of the dealing does not support fair use (pictures are being used for commercial gain), and that the effect on the work is prejudicial (the images and the reputation of those pictured are potentially harmed).

User Waivers from 3^rd Party Photo Hosting

Dating and porn sites may have a strong argument if they only scrape Canadians’ images from third party websites or social media networks with sign-up contracts that ask users to waive rights to their likeness. This legal reality may be unpopular in the court of public opinion. concerns about the tension between consumer rights and lengthy digital contracts. A movement is burgeoning to demand more proactive and legible terms to be disclosed to consumers. Services to of these contracts and rumours of apps in development to provide layperson translations to contract legalese showcase the problems that these contracts pose.

I would tend to agree. In my opinion, these contracts are unreasonable because they are extremely lengthy and overly legalistic. The majority of users are not able to understand these agreements, which is a big problem. It also points to potential invalidity due to the unconscionability doctrine.

To start, there are many seminal “ticket cases” in the UK that call into question contracts where one party does not adequately appreciate the terms of the contract such as the 1970 case . ‹

Similarly, Canadian contracts can be set aside for inadequacy of consideration or unequal bargaining power ( and ). contains a lengthy list of factors to consider in order to properly assess bargaining power: a plaintiff’s ignorance of business, illiteracy, ignorance of language of the bargain, blindness, deafness, illness, developmental disabilities, and other similar challenges. is another foundational case in Canadian unconscionability law. A more holistic approach to bargaining inequality, recently emerged in , where the Supreme Court said there is no definitive list of factors; courts should be alive to conditions of the parties circumstances, unique pressures and situational vulnerabilities. Meanwhile, focused on the “distress of the weaker”, and Ìęused the word “disparity” in its analysis of unconscionability.

Whether the highest ranking or recent cases lay out a definition of unconscionability that would cover third party website waivers is uncertain. I do believe – for some more-vulnerable users – our growing reliance on the largest social media sites and their ubiquity in our day-to-day lives may meet the power imbalance threshold required for unconscionable bargaining. The more users depend on a service for the function of their day-to-day lives, the more the potential for imbalance and disparity in bargaining power. Dependancy creates bargaining weakness.

Two Systemic Criticisms: Statutory & Social Failure

In my opinion, lack of political action and social concern are failing young Canadians who don’t want to show up in an advertisement for an online dating or porn site.

I.ÌęÌęÌęÌęÌęÌęÌęÌęÌęÌęÌęÌęÌęÌę The Statutory Problem: Not Going After the Scrapers

There exist easy alternatives to image scraping. There are to access free images. Governments should take steps to protect individuals – both by demanding websites only accept advertising from companies who agree to ethical photo sourcing standards and by establishing a regime to police and crack down on scrapers. Scrapers operate with software and servers from countries around the world, so it would likely be necessary to create a global framework of international agreements to combat this activity. It would be onerous, but I believe it’s worth the work involved.

II.ÌęÌęÌęÌęÌęÌęÌęÌęÌęÌęÌęThe Social Problem: Blaming the Photo Posters

In observing the aftermath, the Rehtaeh Parson’s case has caused a rash of victim blaming mirrored by that seen in many cases of sexual violence. For instance, the of the Parsons image scandal ended with an inappropriate call-to-action for increased conservatism in photo posting. A media professor from Queen's University says the unfortunate use of Parsons' image in an ad could be a "teachable moment" for parents trying to instruct their children to be vigilant about uploading photos to the internet.

"We are in a new day where people think that if they find something on the web it's free to use, and that's not necessarily the case," she says. "In this case, we're seeing the hurt that that can cause."

In another instance, the included a similar warning from the Ontario Privacy Commissioner.

"Ann Cavoukian, Information & Privacy Commissioner of Ontario, described what happened with Parsons’s image as a 'strong reminder that we can rarely control the use of our pictures once we share them online.[']

'The unfortunate reality is that people give out far too much information about themselves, believing that their information is ‘private’ and they are safe behind their screen. You are not!' Cavoukian said in an email statement to the Star.

'We all need to take steps to protect ourselves online, especially on social networks,' she added. 'Young people must be especially careful to consider the potential risks, and make it a practice to only post photos that they want everyone to see, including strangers and prospective future employers.[']

'If not, don’t post it!'"

Given that Canada has not acted to regulate against scraping of its citizens’ photos, it’s disappointing to me that the go-to response to the Parsons photo misuse was to tell people to be more careful about what they post online rather than condemn and go after the wrong-doers. I believe it’s a particularly insensitive approach when you consider the root of the Parsons case. Rape culture tells young women to avoid walking alone, to watch what they wear, and to restrict their own liberties in order to avoid sexual violence. Rarely does it focus on .

Here, where we should have a vigorous call to go after those social media sites and scrapers who expropriate and commoditize photos of young women, we are instead turning to young women and telling them to restrict the images they put online.

I conclude this post with , Rehtaeh’s mother, written in response to uncovering the dating site photo. It makes the link between photos and human rights better than I can.

"It is disgusting that even in death, my daughter's image is still being exploited. When I see these violations, whether it be the singles ad stealing Rehtaeh's photos -- or the people who contact me and to say negative things such as she should not have been drinking, she was a troubled teen, she was in the wrong crowd -- I sit back and reflect on the reality of who Rehtaeh truly was. Then I think: So what if someone is a troubled teen or was drinking -- as if their behavior or emotional state somehow give permission for others to abuse them."

Denise BrunsdonÌęis an IPilogue Editor, a Western University JD/MBA Candidate, and researcher for GRAND (Graphics, Research and New Media) Centre and Commercialization Engine. She is also the social media volunteer at Sexual Assault Centre London.

The post Dating Sites Scrape Internet for Women’s Photos, Including Those of Deceased appeared first on IPOsgoode.

The main update is the addition of Part V.1, a framework for the administration of an electronic health record (EHA). and have provided strong shorthand summaries of the legislative changes. The Ontario Hospital Association (OHA) has also created a breaking Part V.1 down into its composite parts and providing descriptions for what the legislation actually means. The update mandates:

• Privacy and security requirements that "prescribed organizations" managing EHRs must comply with, particularly in regards to collecting and sharing EHR data;
• The process for consent directives –Ìęknown in some cases as the "lockbox" request or opt-out, where patients may refuse to share their their personal health information (PHI)Ìę–Ìęand the limits of consent directives (i.e. where third parties may be at risk of bodily harm);
• An advisory committee be set up by the Minister of Health to provide EHR recommendations and guidance;
• A requirement whereby the Minister of Health must take all direction intended for prescribed organizations to the advisory committee and Information and Privacy Commissioner before directing any prescribed organization; and
• Increased breach of privacy fines of up to $100,000 for a convicted individual and $500,000 for a convicted organization.
  
  

Analysis

This is well-intentioned legislation. It is clearly aimed to provide much-needed privacy protections for citizens amidst the inevitable transition toward electronic medical data collection. My technical concerns centre on a few key issues, namely the ambiguity of a "prescribed organization", the opt-out limitations, the strength of the advisory committee, and the rigour of prescribed organization's accountability to the public. Not all of these need to be thoroughly addressed within the legislation. Certainly a technocratic bill can become impractical and quickly outdated, but it is my opinion that some of the issues could have been better fleshed out within the bill text.

Ambiguity of Prescribed Organization

Part V.1 is clearly a framework for EHRs, not regulatory guidelines for what bodies will be considered "prescribed organizations." It's conceptually difficult to agree on what powers prescribed organizations will (and will not) have without a conceptual understanding of which will fall under this term. eHealth Ontario is one group that will clearly receive "prescribed organization" status, but who else? In my opinion, the clear question that arises is to what extent private companies will be considered "prescribed organizations".

If there is no intent to allow private companies the designation, then why not draft the legislation more accurately and explicitly? The ambiguity of the term "prescribed organization" makes me uncomfortable.

The Opt-Out Limitations

Refusing patients to opt-out of PHI sharing is tricky. There are huge privacy and civil liberty concerns to allowing a health data collection group the right to override a patient's request for privacy. But, on the other hand, there are public safety implications that do merit some exceptions to the opt-out. In my opinion, the test for overriding the requested opt-out needs to be exceptionally high; to develop health care industry norms otherwise would be disastrous.

The OHA has also raised a valid point that the current wording of the legislation seems to imply that the opt-outs can only be made to the prescribed organizations (for example, eHealth Ontario). They rightly point out that health information custodians (HICs), such as doctors or long-term care facility staff, should also be allowed to take consent directives for patients wanting to opt out. This certainly seems to make sense from a patient care perspective; there is ease and intuitiveness associated with making your privacy requests directly to your health care practitioner.

Advisory Committee Strength

I believe in parliamentary committees, especially when they have teeth. Serious, legitimate, proactive, and credible committees staffed with a diverse mix of courageous and smart stakeholders are exactly what this province and country needs. Unfortunately, they are often susceptible to "committee-itus", passive rubber-stamping, or highly intellectual report-making. This advisory committee has a huge role to play in one of the most important public policy issues of the day. This committee needs to be implemented with immense focus and commitment by the Ministry. Also, the Privacy Commissioner should be involved in the committee structure and creation as a far more independent, less politicized body than the Government's health ministry.

Prescribed Organizations' Public Accountability

This legislation has a number of good public reporting requirements. It dictates that prescribed organizations must publicly account for their EHR safety and security measures, as well as other processes. One thing I noticed was missing - as did the OHA in their bulletin - was the risk management protocols for privacy breach disclosure process. What if a system is violated and information is shared? What onus is there on the prescribed organization to report the violation to the public? To the individuals whose information was breached? To the Ministry of Health? To the police? If they do need to report the breach, in how timely a manner does it need to be reported? Suffice it to say, there are a number of outstanding questions to be answered.

Increased fines are a strong incentive to prevent EHR privacy breaches but they are also a disincentive to report EHR privacy breaches. Realistically, there is a risk associated with electronic data. But the gains to efficiency and accuracy are so great, it seems as if we, as a society, are collectively agreeing to take on the increased risk. It's a logical, rational choice but we need to plan and manage that risk. In this legislation, the Government seems to say, "never allow privacy breaches." This is impractical. In my opinion, the Government instead needs to say, "do everything you can to prevent privacy breaches. If they happen, you must do the following..." Risk and crisis management protocols that make strong commitments to the public interest are a necessity.

The Bigger Picture

The more the world digitizes, the more important privacy becomes. With every piece of legislation of this nature, the Privacy Commissioner's office needs an adequate boost in funding and standing. The Ontario Privacy Commission is one of the best in the country, but it can only be so with apt resources.

We may need to think bigger. The public interest needs more than just a privacy watchdog, it needs government leadership on privacy. In the digital age, threats to our privacy civil liberties are coming from many more sides than ever before. On a daily basis, private corporations and the data they collect of us through information technology are one of the most important concerns for our privacy. They can collect and database our information about us when we write it and even when we play . If we're going to get serious about protecting our digital health information, I think we should get serious about protection.

Bill 78 is an attempt by the government to be proactive about digital privacy, but, in my opinion, it's only a drop in the bucket in the context of what we might need in the future. Is it time for ministries of public health to get more involved on privacy? Is it time to establish ministries of privacy? It's something to consider.

The concepts of ministries of privacy is a counterintuitive and controversial one, but I think something drastic needs to happen. Perhaps this is the way. The systems in place to protect citizen privacy need work. The current leadership in civil liberties and privacy offices are taking steps, but they are not keeping pace with developments in information technology. In the end, the solution isÌęmore information technology privacy legislation and only our governments can enact it.

Governments are now in an important and unique position to protect our privacy. We need a privacy commissioner to protect our privacy from intruding government action and we need a government to protect our private informationÌę– health-related and otherwise –Ìęfrom corporations that look to misuse it. Will they step up to the challenge?

DeniseÌęis an IPilogue Editor, a Western University JD/MBA Candidate, and researcher for GRAND (Graphics, Research and New Media) Centre and Commercialization Engine.

The post Diagnosing Ontario's Electronic Medical Records Bill: Healthier, but Not Out of the Woods Yet appeared first on IPOsgoode.

, the United Kingdom (UK) communications regulator, topical data on digital downloads that violate copyright regulation. This study, based on market research with a sample of over 5,000 individuals, is an expansive and reliable glimpse into the downloading habits of internet users. The key findings are:

• One in six (17%) UK internet users over the age of 12 downloaded at least one piece of illegal content over the three month monitoring period
• 4% downloaded exclusively illegal content
• The top 10% of infringers were responsible for 79% of all illegal downloads
• Men are more likely to download illegal content than women
• Those under 34 years of age are more likely to download than those 34 and older
• Movies were illegally downloaded more than any other type of content
• uTorrent was the most common platform used for illegal downloads
  
  

Context and Methodology Analysis

To provide some context, these overall rates are lower than some of the hype would have us believe. As someone who has been following illegal downloading trends since the inception of the technology, I was surprised and delighted that fewer than one in five people download illegal content.

But it's not all good news. The age bias could indicate a darker hypothesis that I've held for many years - that the more technical capability individuals have, the more likely those individuals are to download illegally. Torrenting or competing methods require a sophisticated knowledge of the internet that is statistically less likely to be held by older users. It's possible that baby boomers are purchasing their movies on iTunes simply for the ease-of-use and straightforwardness of the service. Unfortunately, this hypothesis is immensely difficult to prove. As a former market researcher, I'm cognizant of the response bias that surveyed populations have when it comes to answering questions about their propensity to participate in illegal activity. Regardless of how solidly the questions were drafted, people would under-report their likeliness to illegally download copyright protected material.

This is the brilliance of the methodology employed in the Ofcom study; monitoring actual behaviour rather than asking participants to report behaviour leads to greater accuracy. The study is also methodologically sound because it has a large sample size, and a sample size recruited in multiple different ways.

It also goes above and beyond traditional polling techniques in one other important way. Eighteen years and older is a common way to begin a population sample; however, as this study confirms in its decision to include participants as young as 12 years old, practical internet studies should include teens and pre-teens in order to be as accurate as possible. Teens use the internet extensively - both while mobile and at home - and so they should rightly be included to assess internet usage behaviour by the population as a whole.

One caveat to the sample, and perhaps an obvious one, is the regional bias. The sample is entirely drawn from the UK and as such, the data is only truly representative of that area of the world. While this data may also be directionally representative for Anglophone Western countries with similar internet penetration rates, it would not be a useful reference when looking at many other countries and regions around the world.

Conclusion

Ofcom's work is incredibly important here. There is simply no replacement for reliable, open, and accessible data. Moreover, this study is ongoing, which provides valuable benchmarking and trend tracking. For Canadians reviewing the research, this study raises the natural question: what exactly is the Canadian Radio-Television and Telecommunications Commission (CRTC) doing research-wise? The answer may surprise you. They do, in fact, provide some statistical information regarding .

But they can do more, and they can do it better. Canada deserves a high-calibre, internet-usage think-tank akin to the United States' . Up until now I've always envisioned it to be executed by StatsCan, but perhaps the CRTC is a better fit to take on and drive this project. Canadians need more accurate data collection about our internet penetration, usage, and most importantly, the way it is impacting our daily lives.

Ultimately, in my opinion, the important question isn't how many Canadians are downloading illegal material. The core question is: are we trending toward more or fewer illegal downloads? And if we are trending upward, such a finding is a fundamental starting point to launching a much-needed national debate on piracy in Canada.

The post Few People Download Illegally, But Those That Do, Do It A Lot appeared first on IPOsgoode.

The Guide’s primary author is Canadian . In the Guide’s acknowledgments, Pantalony recognized the instrumental help of fellow Canadian art IP expert . Art and law commenters the new guide, but that it fails to address what museums can do when faced with copyright law shortcomings born from the in counterfeit art facilitated by new technologies. The Guide openly states that it “does not argue for strong or weak IP protection” but rather focuses on how museums can manage IP while balancing their societal mandates to be centres of learning and intellectual curiosity.

Analysis: Guide Review

This 90-page document is a must read for anyone in the museum, art or cultural industries. It’s an accessible, straightforward read. Given the variability in copyright and intellectual property between countries, it acts to whet the appetite of anyone looking for a general guide to the issues of art and culture preservation within a legal context.

Moreover, the document flows brilliantly. The author takes the reader through introductory definition chapters; for example, how copyright and trade-marks are defined in a museum context. The author then goes into heavier issues such as best practices for a museum IP audit. It also covers digital rights management solutions and notes on social media and museums. It includes case studies of successful museum IP management models around the world. Finally, it lists out important commercial considerations such as distribution, licensing and co-branding with non-museum entities.

In regards to the Guide’s attempt to take a neutral position vis-à-vis the laws themselves, there is certainly no such thing as neutrality, especially when it comes to museum art and ownership. One need look no further than the or the to know that even where the law is clear, politics pervades. Additionally, WIPO in its entirety has for its western cultural and legal bias.

Another controversial issues is that assertive museum IP policies – aptly described in Canadian Heritage Information Network’s (CHIN’s) as the demise of the “” – can have a on museums as educative experiences for consumers.ÌęGrowing focus on IP laws by museums increases the tension between museums and the consumers of the content; copyright versus education is one of the most common debates in intellectual property law. One of the most obvious examples of this, one that touches all of us, is the way museums choose to restrict visitor photography. Some museums believe that photos violate intellectual property, while some and Ìęare advocating for more open photo policies.

Even with these tectonic issues underlying museum IP and WIPO, the Guide does do a fairly good job of being fair. It attempts to stand back from the fray and be as politically agnostic in its recommendations as possible. And it succeeds.

On a final personal note, it’s nice to see the Canadian authors and those that influenced the document comfortably promote our domestic museum management practices on the world stage. CHIN's Community Memories initiative for smaller Canadian museums and community centre archives is profiled. The Guide also outlines CHIN’s North America-wide studies of museum IP and management practices. And finally, the Guide profiles the Department of Heritage’s launch of the , an online museum of internet-based exhibitions.

So even amidst mild criticisms of the Guide’s neutrality in regards to the current IP laws, it’s hard not to be proud of this document, its authors, and the progressive work that Canada has done to support museums and their IP management.

Denise Brunsdon is an IPilogue Editor, JD/MBA Candidate at Western University, and researcher for GRAND (Graphics, Research and New Media) Centre.

The post Canadians Make Their Mark on Global Guide for Museum IP appeared first on IPOsgoode.

And as has been common in commentary, he also draws parallels to the demise of previous research and development (R&D) powerhouse Nortel. As Yakabuski wrote,

“If Blackberry is sold – as seems likely after the board announced a strategic review and hired investment bankers – it will most likely be carved into pieces. That stands to make Canada’s innovation situation worse. The company, which benefited from government grants and loans in its early days, has given back by nurturing the countless startups for which BlackBerry is a customer or mentor. Nortel played a similar role in its day. The loss of an anchor can compromise an entire ecosystem of innovation, making it even harder for startups to make the leap to commercialization.”

The Globe and Mail has been reporting extensively on the company’s future, seen in articles like “” and “”.

Breaking Down the Issues

A quick scroll through the on any of these articles – or casual listening across our country’s proverbial water coolers – makes it clear that the future of Blackberry is a hot button issue. There are camps, there is rhetoric, and there is emotion. But using Blackberry’s current situation as either a symbol of contemporary innovation challenges or as a canary-like indicator for the future of Canadian innovation is problematic.

In unpacking the link between Blackberry’s future and its impacts on Canadian innovation, there are two distinct arguments. From the perspective of critics, the hypotheses are that Blackberry is struggling because it lacks innovation; also, the sale of Blackberry will reduce the amount of innovation in Canada. In my opinion, both are logic leaps.

Is Blackberry Struggling Because it Lacks Innovation?

Ongoing , device operating system reviews and the controversial but creative idea to – as well as the decision to – are clear signs of innovation.

There may be better reasons to explain Blackberry’s loss of market share and sinking stock price. These include that the innovations were not to maximize appeal with the , that , or that or product have faltered with growth. All of these claims seem to hold some truth to them. To say that Blackberry has lacked innovation, however, is, in my opinion, fundamentally inaccurate.

Will the Sale of Blackberry Reduce Innovation in Canada?

It’s difficult to predict whether any sale or breakup of Blackberry will result in quantitatively less innovation than if the company retains its current corporate structure. If we judge innovation by R&D investment, it would be hard to have mathematical certainty about what Blackberry would have spent over its company future in the event of a sale, and vice-versa. As a result, I would contend that outright, quantitative prediction is a mug’s game.

In my opinion, a more intelligent, nuanced response is that R&D is a blunt and sometimes indeterminate measurement of innovation. The Council of Canadian Academies recently completed an at the request of Industry Canada to assess innovation in Canada. Though it did find many benefits to industrial R&D (IR&D) investment, it’s not the same thing as innovation.

“IR&D and innovation are not synonymous. IR&D consists of any scientific research or technology development undertaken by Canadian businesses. Innovation, on the other hand, is the broader concept that can be defined as ‘new or better ways of doing valued things.’”

The panel listed four key areas of R&D strength in Canada, including:

• Aerospace products and parts manufacturing,
• Information and communication technologies,
• Oil and gas extraction, and
• Pharmaceutical and medicine manufacturing.
  
  

And here’s where the argument that a sale of Blackberry will reduce innovation in Canada begins to sound particularly weak. Even if a sale results in reduced R&D spending by the new corporate form or forms – which is difficult to prove – and even if a reduction in R&D spending guarantees a reduction in innovation (also difficult to prove), it stands to reason that a single company should never dramatically impact Canada’s overall innovation agenda. Blackberry is one company in one of the four areas of R&D strength in Canada.

The Big Picture

R&D and innovation in Canada have bigger problems than Blackberry’s future. A recent Conference Board of Canada shows that even by a broad array of 21 different indicators, Canada lags. According to their findings,

“Despite a decade or so of innovation agendas and prosperity reports, Canada remains near the bottom of its peer group on innovation, ranking 13th among the 16 peer countries / Countries that are more innovative are passing Canada on measures such as income per capita, productivity, and the quality of social programs.”

that, from a digital communications technology perspective, the temptation for entrepreneurs to sell out too early or join the brain drain to Silicon Valley is part of the problem.

“And the magnetic allure of Silicon Valley means people with qualifications are migrating en masse to the Bay Area. An estimated 350,000 Canadians live and work in the Valley – an entire lost generation. It’s no exaggeration to say that muchÌęof the world is in the midst of a global brain drain of engineering talent.”

Eli Lilly president and CEO John Lechleiter believes that, from a pharmaceutical perspective, .

Michael Bloom, vice-president of organizational effectiveness and learning for the Conference Board of Canada, believes that companies need to.

There are many key contributing causes of and prescriptions to Canada’s innovation lag, but none of them truly involve Blackberry. At most, Blackberry is the symptom - not the diagnosis.

Conclusion and Insights

Using Blackberry’s current challenges to strike up a national debate on R&D or innovation is thorny. In rifling through the waves of press coverage, it seems like media outlets are using an innovation angle to give legs to one of its favourite corporate narratives.

The obsession with Blackberry fortunes is natural because mobile devices are deeply personal products that are highly integrated into our daily lives, whether consumer, student, or professional. Also, Blackberry’s is a reverse underdog story, and some people love watching a former market leader struggle.

Unfortunately, when we bring larger public policy debates around innovation into heated discussion around controversial companies like Blackberry, it can unnecessarily politicize or bias the national discourse. As well, I worry that such politicization may allow other Canadian companies that aren’t doing their part on the innovation front, but are in less prominent or popular industries than mobile devices, to escape the same amount of media scrutiny.

The post What a Potential Blackberry Sale Says About Canadian Innovation appeared first on IPOsgoode.

In a and accompanying , the CRTC rejected Sun News’ application for a mandate to be carried by all cable and satellite providers ("must-carry status"). Granting of such a status guarantees television networks a revenue stream as the cable companies of mandatory carriage onto monthly customer cable bills.

Ìę

The CRTC did approve new channels that it found “meet a real and exceptional need”, such as providing French-language content or content for Canadians living with a visual impairment.

The CRTC, however, did not end Sun News hopes for must-carry status. The regulatory body has broad jurisdiction under to award the designation “on such terms and conditions as the Commission deems appropriate”. Consequent to some of Sun News’ arguments about the importance of access to Canadian news, the CRTC has decided to hold a review of its policy on the licensing of Canadian news channels. As said by the CRTC Chairman Jean-Pierre Blais, “television news channels provide an important public service by ensuring that Canadians are exposed to different opinions and perspectives on matters that concern all citizens. We are concerned that, under the existing rules, Canadian news services are not being given a pride of place in our broadcasting system.”

This review includes public consultation by or submission. Canadians are invited to comment on the following proposed changes to the current regulatory framework:

• Distributors must offer all Canadian national news services (not necessarily on basic service).
• Distributors must place Canadian news services in close proximity in their channel lineup.
• National news services must be available in a package and on a stand-alone basis.
• National news services should be offered in the most appropriate packages according to their content.

The deadline for citizen feedback is fast approaching on September 9^th, 2013.

Despite the fact it is operating in the red to the tune of $17M in losses in 2012, Sun News it until the CRTC’s review is complete. It will also be making a submission to the commission.

Commentary and analysis

Since the CRTC’s inception, through to the , and into today’s debate on must-carry for Sun TV, domestic news coverage remains a matter of Canadian public policy. Whether it is concerns about concentration or representation, what we watch on television reflects our social identity, norms and perceptions of the world around us.

But the burgeoning area of digital media has added a new layer to the debate during the last ten years. In my opinion, online television downloading and streaming is creating a tectonic shift in programming consumption that, if the CRTC isn’t careful, will nullify their reform efforts, and potentially one day, their existence.

I’m no fan of Sun News. In my opinion, it’s a country mile from providing any real and exceptional viewer need. But that’s beside the point. I think that generally, fighting for must-carry status on cable television is like . The time horizons for cable abandonment rates, however, that there remains justifiable revenue to be made between now and the sinking for those granted must-carry status. Ironically, the gradual addition of must-carry designations and the ensuing rise in cable rates may hasten the demise.

I would like to see the CRTC and the Government of Canada get serious about a large-scale revamp of Canadian content regulation and protection in the digital media age. Yes, I think supporting domestic news coverage is sufficiently important to warrant framework updates, but I would like to see it within a larger plan to address how to bring the CRTC's measurements and requirements to online programming.

Until there is a long-term strategic plan for incorporating digital content within the vision of the Broadcasting Act and its implementation by the CRTC, for any piecemeal revisions to must-carry, I will remain much wary.

Denise Brusndon is an IPilogue Editor and a JD/MBA Candidate at Western University.

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