´ˇ±ôľ±ĚýMesbahianĚýis anĚýIPilogueĚýWriter and a 2L JD Candidate atĚýOsgoodeĚýHall Law School.Ěý

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As part of a recent effort to modernize the Canadian data and telecommunications legal landscape, the federal government proposed Bill C-10: An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts (“Bill”). In a nutshell, the Act provides the (“CRTC”) new powers to regulate the internet. ”, the Bill proposes to expand the scope of “ to include online broadcasters such as (as part of new “online undertakings”), and impose regulations requiring these platforms to pay for Canadian content they air. Non-compliance will lead to large fines.

The Bill has legitimate objectives; Canadian creators (of music, movies, series, documentaries, etc.) ought to be adequately compensated for enabling streaming services to generate profits using their content; however, the surrounding the Bill signifies that its impact on civil liberties are just as important.

The Controversy

Essentially, the Bill seeks to “” by allowing the CRTC to subject online undertakings to similar regulations to traditional broadcasters. The glaring question for civil liberties advocates was whether user-generated content (i.e., media uploaded to Facebook, TikTok, YouTube, etc.) qualifies as an “online undertaking” under the Bill. If it did, this could imply the government has the power to oversee and regulate anything, from your online political expression to pictures of your cat.

In its initial form in November 2020, : “the Act does not apply in respect of programs uploaded by unaffiliated users to social media services for sharing with other users.” Yet by April 2021, the government unexpectedly revoked this exemption. ensued from the public, academics, The Canadian Civil Liberties Association (“CCLA”), and parties from across the political spectrum, compelling the government to once again change its position. In response, Canadian Heritage Minister Steven Guilbeault announced that upcoming amendments would make it that the Bill will not target user-generated content.

But according to Michael Geist, a Canadian law professor in Internet and e-commerce law, the proposed amendments will only make the Bill . While they limit the CRTC’s regulatory power, the amendments do not restore the original exemption. Moreover, the amendments add a new section specifically on the regulation of social media. The government therefore seems adamant to extend its regulatory reach to social media.

Implications for Freedom of Expression

The federal government’s refusal to restore the exemption may be understood in light of their broader effort to adapt to the realities and technological advancements of the information economy. Specifically, one of their goals is to combat . These extremely necessary and urgent objectives require a robust, evidence-based policy framework that systematically addresses numerous factors related to the technological infrastructure that gives rise to these problems. There are three main considerations.

First, as Geist points out, freedom of expression also entails the freedom “,” meaning that we ought to demand transparency from Big Tech with respect to the algorithms through which content travels to other users. As Yale law professor Amy Kapczynski highlights, a broader policy analysis in such cases would include paying attention to intellectual property and trade secrecy laws that from disclosing their algorithmic models.

Second, it is unclear what criteria will be used to judge what content is “Canadian”. Such absence entails regulatory discretion¾a slippery slope that may prove problematic. As warned by Cara Zwibel, director of the Fundamental Freedoms Program of the CCLA, the concern is less about what the government will currently do with these new powers and more about the ” this Bill opens in the future. With little guidance on regulatory criteria, “Canadian content” seems highly malleable. To implement regulations without explaining how to interpret them tends to grant the government sweeping powers that may detriment online expression.

Third, it is important to learn from the problems faced by other jurisdictions that implemented similar provisions, such as Germany and Australia. Their experience shows that corporations faced with regulatory requirements tend to by broadly taking down any content that may be construed to contravene applicable legislation, in order to avoid hefty fines. Especially with the new amendments in Bill C-10 providing specifically for the regulation of social media, we must stop and ponder if it is a good idea to outsource freedom of expression to Big Tech.Ěý

If the controversy around Bill C-10 points to one thing, it is that complex social problems require solutions that empower civil society, not ones that grant the government blanket regulatory authority.

The post Does Bill C-10 Target Big Tech or Civil Liberties? appeared first on IPOsgoode.

The DEA, delayed until 2015, will create a graduated response to online copyright infringement in the UK, sending warning letters to alleged infringers and anonymous lists of those infringers to the holders of the copyrights. The brief, titled drew criticism from various members of the music industry and academics, including Radiohead record producer Nigel Godrich, legal academic Barry Sookman and the President of the Institute for Policy and Innovation Tom Giovanetti.

The LSE brief argued three main points to support reconsidering the DEA’s implementation: creative industry revenues do not show a general pattern of decline, the world has seen a beneficial surge in “collaborative digital culture,” and case studies of current graduated response regimes do not suggest that the DEA will be particularly effective.

Has online copyright infringement hurt music industry revenues?

The brief argues that, despite stagnation in the music industry, the perilous decline in revenue projected by lobbyists has not come to fruition. Rather, it suggests that the music industry has sustained profits by gradually transforming its revenue streams. For instance, the decline in CD sales has been offset by the increase in revenues from streaming music and global record sales actually increased in 2012 for the first time since 1999.

The brief seems to fall in line with Michael Geist's previous claims that musicians are responding to copyright infringement by innovating the way they gain revenue. In his 2007 , Geist notes that many high profile artists have abandoned their copy-controls in search of alternative revenue streams, such as merchandise and concert tickets. Not the least of these artists is Radiohead, who released their CD that year on their website without retaining copy-controls.

Ironically, Radiohead producer Nigel Godrich came out as being of the LSE brief. Godrich takes issue with the biases created by aggregating the data for entire industries, arguing that the brief ignores the reality that much of the revenue generated from concerts and merchandise can only be done from high-profile artists. In his words, “smaller artists who are not in the position to charge anything like the Rolling Stones or Madonna are not the ones benefit from these new incomes, and yet these are the very people who’s interest the report is claiming to serve.”

Barry Sookman takes issue with the brief’s logical reasoning. Among other points, Sookman that the LSE’s conclusion that the music industry’s stagnation implies no loss to the industry ignores the revenues that could have been realized in the absence of the copyright infringement. He also questions the LSE’s assumption that we should accept the status quo when it runs contrary to most country’s copyright infringement policies.

Should we embrace the benefits of the "Collaborative Digital Culture"?

The brief also argues that the surge of digital copyright infringement has fostered a beneficial culture of “inclusive collaboration.” The statistics show that the use of Creative Commons increased from 50 million in 2006 to 450 million in 2011 with the help of websites like Sound Cloud and Indaba Music. Marketing benefits and sales have derived from this growth of collaborative culture, as evidenced by the global branding of the “Gangnam Style” video following its thousands of YouTube parodies.

The benefits of this collaborative culture, however desirable, should be weighed against its possible human repercussions. argues that by looking only at the macro level, the brief does not consider the impact to individuals, families, and small/medium organizations. In doing so, it neglects distributive justice. What’s more, Sookman argues that the brief ignores the emotional impact that copyright infringement can have on artists. He uses the example of Kristen Henry, who “felt frustrated and violated when the database she spent five years compiling was slavishly copied and appropriated by the plaintiff’s using an online crawling tool and sold to others for a fee.”

Do current graduated response regimes suggest that the DEA will be ineffective?

The brief’s final argument is that the lessons from enforcement against individual infringers suggests that the DEA will not be as effective as predicted. Attention is given to France’s graduated response regime implemented in 2009 through .ĚýIt argues that while a by Dr. Brett Danaher et al. revealed an increase inĚýiTunes sales, the increase in sales had more to do with HADOPI’s education component than its enforcement component (For more information about the HADOPI study, click to read about Dr. Danaher's discussion of the study at a 2012 IP Osgoode Speaker Series).

Tom Giovanetti takes issue with the conclusion on iTunes sales. He argues that the Ěýmerely shows that iTunes sales increased on average by 90,000 units per week due to HADOPI’s enforcement and educational components. The HADOPI study also indicated that more research is required to determine how the educational components of HADOPI affect user behaviour apart from its enforcement components.

Concluding Thoughts

The LSE brief is clearly not without critics. However, it seems that active criticism over the brief’s assumptions on revenue ignores its underlying message. The brief contends that the online world is transforming and that it is consequently improper to solely focus on the economic effects of the transformation. It concludes that an independent analysis of the DEA’s effects should be taken to include the political, social, and cultural impacts of the punitive measures for copyright infringement. This conclusion aligns with the 'Digital Rights' notion that humans possess the right to freedom of expression and that stricter enforcement of copyright laws will violate that right (For example, the Open Rights Group's stance on copyright reform). In fact, an by Nicola Lucchi discusses the constitutional concerns that the HADOPI law created and how its adoption led France's Conseil constitutionnel to tackle the issue of balancing freedom of expression with the property rights of copyright holders.

Where the brief errs is in its reliance on data to suggest that copyright infringement has not negatively impacted the revenue of creative industries without stating its assumptions. In my opinion, the brief should have clarified these assumptions so as to avoid data scrutiny from economists. Failing to do so let a brief with a solid message become overshadowed by procedural mistakes in its economic analysis.

Peter Neufeld is the Features Editor and a JD Candidate at Osgoode Hall Law School.

The post Caught in the Stat: LSE Receives Criticism for its Report on Copyright in the Music Industry appeared first on IPOsgoode.

The Copyright Pentalogy rocked the foundations of Canada’s media industries, and will have wide reaching repercussions for Canadian copyright law. The book, entitled “” is the first comprehensive scholarly analysis of the pentalogy. The text covers a range of topics, including the standard of review in the courts, the implications and evolution of fair dealing, technological neutrality, the scope of copyright and copyright collective management.

The book is edited by Prof. Michael Geist of the University of Ottawa and includes contributions from many of Canada’s leading copyright scholars, including IP Osgoode’s very own Prof. Giuseppina D’Agostino and Prof. Carys Craig. It is sure to be a must have resource for anyone interested in Canadian copyright law in the future.

Print copies are available from the and an open access PDF version is available as a .

The post New Book - The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law appeared first on IPOsgoode.

Editor's note: Thanks to those of you who joined us for the lecture! This page will now provide an archive of the lecture.

If you are unable to see the video above, please use the following link to open Windows Media Player on your computer: Link

Abstract:

In December 2007, the Canadian government planned to introduce new copyright legislation that was to have mirrored the U.S. Digital Millennium Copyright Act. A Facebook group was formed to advocate against such reforms and for balanced copyright laws. Within weeks, nearly 40,000 Canadians joined the group, with members writing and calling their elected representatives, educating their local communities, and staging public protests. In the face of this opposition, the Canadian government delayed introducing the legislation. The “Canadian copy-fight” attracted considerable attention from the mainstream media, with many wondering how copyright had emerged as a contentious policy issue. This talk will assess the Canadian experience in an effort to answer the oft-asked question – “why copyright?”.

Bio:

Dr. Michael Geist is the Canada Research Chair of Internet and E-commerce Law at the University of Ottawa. His articles and government reports on the Internet and technology law are published regularly in the Toronto Star and BBC. Dr. Geist is the creator and editor of BNA’s Internet Law News, editor of the Canadian Privacy Law Review, founder of the Ontario Research Network for E-Commerce, and is on the advisory board of several leading Internet law publications. Dr. Geist serves on the Privacy Commissioner of Canada’s Expert Advisory Board and has served on the board of several organizations such as the Canadian Internet Registration Authority and Canada’s National Task Force on Spam. In 2003, Dr. Geist received the Ontario Premier Research Excellence Award, was named one of Canada Top 40 Under 40, and received the Public Leadership Award from Canarie for his contribution to the Internet in Canada.

The post Facing Up to Facebook: The Fight for Fair Copyright in Canada appeared first on IPOsgoode.