Anita Gogia is a IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

In , the Federal Court of Canada invalided patents for interactive program guide (“IPG”) technology and clarified a reasonable royalty as the appropriate remedy had the patents been found valid and infringed.

Rovi supplies , and Videotron is a telecommunications corporation providing cable services and . IPGs are interactive menus that you may have used to select/search programming listings rather than viewing them on a paper guide.

Rovi’s revenue model is to license a portfolio for a rate without consideration for the number of patents. Videotron did not renew its license which expired in 2016. Videotron claimed they licensed to avoid litigation, and later realized that Rovi’s portfolio is obsolete. Notably, Rovi wanted to double the royalty rate and when Videotron asked Rovi to “.” Rovi did not provide an adequate answer.

Rovi that Videotron infringed four patents, which Videotron were invalid. Rovi’s patents were held due to obviousness and anticipated knowledge in consideration of prior art and knowledge of the skilled person. Rovi’s patents were secured in the 1990s, one of which claims a “”. ��The Court held that it was obvious to the industry that IPGs would be prominent in the future and that 1990s were “.” Therefore, or obvious extensions.

The Court’s for denying the remedy of accounting of profits is significant, as not much caselaw has clarified this equitable remedy. Videotron’s products are classified as “complex products” since the patented technology is a small part of the overall value of the product —- not analogous to a pharmaceutical product. With standard patent cases, patentees can be granted ‘accounting for profits’ as a remedy. The availability of such a remedy is questionable with non-standard cases. The for awarding an ‘accounting for profits’ ��are as follows:

First, the Court did not find undue delay by Rovi in pursuing litigation against Videotron.

However, upon examining Rovi’s conduct, the Court found that Rovi operated in bad faith — that Rovi was using “” and not disclosing the list of infringed patents to Videotron to prevent them from designing around them. The recognition of “hard-ball” as a characteristic of bad faith conduct is a novel interpretation of a traditional equitable ground.

Second, the judge recognized Rovi’s “” into royalty deals and took note of Rovi’s delay in prosecuting patents which results in the problem of “holdup”. Granting an accounting remedy in this case would set an undesirable precedent contrary to the purposes of IPR as it gives patentees leverage in negotiations where the royalty would reflect the .

Third, Rovi that Videotron wilfully infringed their patents, however, the judge concluded that Videotron refusing to renew their agreement was actually based on a “reasonable assessment of the necessity of the patents”.

As the court considered the fourth factor neutral, it moved on to an interesting analysis of the complexity of calculating an accounting of profits — that inventors are entitled to that portion of which is causally attributable to the invention. However, patentees seeking an accounting remedy must provide a sound and reliable way to calculate profits. Here, the Courts found that Rovi’s proposal for calculating Videotron’s profits complex and unreliable, said to be based on “” evidence. The court noted caselaw describing that “.”

Instead, the Court accepted Videotron’s proposal of the appropriate remedy as a “.” It was a safer approach to argue a reasonable royalty cap of $150,000 per feature based on design-around rather than arguing that the royalty was zero, since the non-infringing alternative is to remove the IPGs all together.

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Amin Hosseini is an IPilogue Writer and an LLM Candidate at Osgoode Hall Law School.

On , Sisvel International S.A. announced its Cellular IoT , consisting of 20 patent owners. By establishing this patent pool, the participating patent owners will create an offer to license all of their Patents required to implement the LTE-M and NB-IoT standards. Interestingly, Huawei Technologies and Nordic Semiconductor have also entered into a patent license agreement on , related to a portfolio of standard essential patents (SEPs) for LTE-M and NB-IoT owned by Huawei.

and are radio communication technology standards created by for Internet of Things (IoT) applications. The cellular LPWAN IoT standards LTE-M and NB-IoT evolved from the 4G LTE standard.

LTE-M is a subset of LTE technology designed specifically for machine-to-machine communication. LTE-M enables IoT devices to send and receive enormous volumes of data without depleting their batteries. It has a latency of about 10-15 milliseconds and can enable cell handovers. On the other hand, NB-IoT employs shorter frequency bands, allowing this technology to exploit the more effectively. For NB-IoT, latency is roughly 10 to 100 times lower, and coverage is far broader.

Cellular networks exist to facilitate connection between devices. To keep the device connected to the nearest towers, they often ping cellular devices around them to acquire location. The battery is depleted by these constant . Thus, most IoT devices require substantially long-lasting batteries, and they consume a significant amount of energy.

LTE-M and NB-IoT provide IoT applications with effective connectivity. Batteries in LTE-M devices can survive ten years or longer because of features called and . IoT devices can employ their power-saving mode with these standards, allowing them to sleep when not in use. Additionally, they can prolong their sleep, so they do not have to wake up to send the location update. Devices can employ extended discontinuous reception with LTE-M. When the device is not in PSM mode, it frequently checks for downlink data. With extended discontinuous reception, the frequency of radio check-ins is extended, which lowers power usage.

In addition to the technological effectiveness of these standards, Sisvel’s patent pool helps makers of IoT devices by providing a clear structure for getting licenses under the pool's portfolio of LTE-M and NB-IoT SEPs. Generally speaking, bilateral licensing would be costly between a vast and rising number of businesses and holders. By setting up this patent pool, it is expected that transaction costs will be decreased for IoT projects.

With this Cellular Patent Pool, licensees can finalize a single license for various licensor portfolios and prevent royalty reporting and payments for each licensor. And, with multiple licensees, a fair, reasonable, and non-discriminatory () license for such SEP portfolios is feasible. Moreover, by providing licenses with standardized, pre-established terms and conditions, we may lessen prejudice among licensees. Due to the fair total royalties provided by patent pools, the potential patent hold-up by individual licensors could not be a grave concern.

A large percentage of IoT projects do not produce the anticipated results, or simply put, they fail. Recently, in-depth research on IoT initiative failure has been published by . The research concludes that nearly three-quarters of IoT projects are not considered successful.

��However, this unsuccessful rate has nothing to do with the IoT concept. IoT businesses have to deal with many challenges and risks such as unanticipated costs including litigation, inaccessibility to required technologies, and failure to develop a properly-designed business model. This Patent pool, along with other measures, is a viable solution to such concerns. Sisvel’s cellular IoT patent pool is a giant leap for IoT businesses which is set to encourage competition, market involvement, and greater commercial and legal certainty in the IoT industry.

Further reading:

To read more about the transaction costs savings engendered by patent pools, please see Measuring the Costs and Benefits of Patent Pools, Available at

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The 5G network

The Next Generation Mobile Networks (NGMN) describes 5G as “an end-to-end ecosystem” that is expected to “enable a fully mobile and connected society”. The most prominent include fixed-wireless access, ultra-reliable low-latency (high volume of data messages with minimal delay) communications, enhanced mobile broadband and massive . The effective implementation of the 5G vision could translate into driverless cars, virtual or augmented reality experiences, , robotics and . However, the proposed 5G use cases rely on , pertaining notably to latency, throughput, reliability and transmission character.

To address all of these use cases, networks need to become more flexible. This is achieved through , a form of virtual network architecture built on common shared physical infrastructure. Each network slice consists of an independent set of logical (software-based) network functions that support the requirements of the specific use case. For instance, the driverless car will rely on vehicle-to-anything (V2X) communication, which requires low latency but not necessarily a high throughput, while a streaming service being watched while the car is in motion will require a high throughput and is susceptible to latency. are thus employed to optimise the use of the physical network. This can also enhance , by isolating attacks on the network slice, given that security poses the biggest challenge as these networks evolve, according to Ray Lahoud, Chief Operating Officer at Allstream.

Network slicing relies on and . SDN the data and control planes, which, along with the management plane, constitute the three basic components of a telecommunications . By removing the control plane from network hardware and implementing it in software, SDN enables programmatic access, making network administration much more flexible.��While SDN enables network slicing, the NFV architecture is employed to and its constituent resources, and orchestrating their allocation to realize the virtual network functions (VNFs) and network service.�� In a nutshell, NFV provides the ‘what’ (virtualization architecture) and SDN provides the ‘how’ (Application Programming Interfaces and control protocols) to .

SDNs can be deployed today leveraging existing Application Programming Interfaces ().�� APIs constitute a point of interaction between a number of systems. From the users’ point of view, APIs allow them to complete the action . APIs speed up the communication between apps and platforms, allowing service providers to deploy innovative high-quality services by bypassing one-on-one, costly and time-consuming proprietary integration. As Ibrahim Gedeon, Chief Technology Officer at Telus, described it, before embarking on any technological transformation journey we need to “speak the same language to talk about innovation”, which in turn translates to the need for a .

Network softwarization is paving the way towards X-as-a-Service (XaaS). XaaS refers to the concept that , including the functions that control a telecom network, notably Software as a Service (SaaS), Platform as a Service (PaaS) and Infrastructure as a Service (IaaS). With these resources made available by , telecom service providers maintain a major influence over the services they buy, while offloading the costs of Research and Development (R&D), security and optimization. XaaS extends , with Transportation-as-a-Service offered by Uber and Lyft, Grocery-as-a-Service by Safeway and Whole Foods, and Accommodation-as-a-Service by Airbnb.

New Business Models

According to the NGMN , 5G is expected to “empower value creation towards customers and partners, through existing and emerging use cases, delivered with consistent experience, and enabled by sustainable business models.” Essentially, this means that telcos will start shifting from their traditional Business-to-Customer (B2C) to a Business-to-Business (B2B) business model, by opening their networks to other stakeholders and allowing the latter to reuse their capabilities in order to deliver new services to customers.

Communication Service Providers (CSPs) can monetize new data-intensive Over-the-Top (OTT) services through partnerships with OTT providers or by charging them for access to their networks. In fact, operators have already started to leverage to deliver packaged services to end users. OTT players are expected to deliver more applications that require higher quality, lower latency, and other service enhancing capabilities, namely proximity, location, quality of service (QoS), authentication, on demand and in a highly flexible and programmable way.

In addition, as James Buchanan, Senior VP & General Manager of Ensemble ADVA Optical Networking, framed it, monetization of data is key to proving that it is worth investing in 5G. While telcos are now relying only on data to improve customer experience and QoS, with 5G network services combined with IoT and AI, new business models of monetization will arise, namely . New business opportunities will thus emerge for telcos not only through data monetization but also from the value delivered to enterprises via application and network intelligence layers.

IPR, RnD and Investment in 5G

The realization of the 5G vision, especially in terms of IoT-related applications, will require extensive R&D and investment. Robust intellectual property protection is an to this end. ��Based on the NGMN , the IP based business objective is to make 5G access affordable for all types of devices. The proposed NGMN recommendations include improving 5G Standard Essential Patent (SEP) Declarations, establishing Independent 5G SEPAssessments, and exploring and establishing Patent Pool licensing for 5G. All industry partners are expected to develop implementation plans for each of these recommendations.

Overall, this panel’s speakers strongly agreed on the fact that the 5G endeavor cannot be taken exclusively on by the private sector. This was consequently addressed by the Honourable Navdeep Bains, PC, MP, Minister of Innovation, Science and Economic Development in his , during which he announced the launch of ,��, the Evolution of Networked Services through a Corridor in Québec and Ontario for Research and Innovation, which is a 3P between the governments of Ontario and Quebec and private sector partners. Minster Bains described ENCQOR as “a 5G test bed that will advance the development of 5G networking solutions and next-generation technologies and applications”. In addition, he proclaimed the launch of two consultations regarding 5G deployment, one of which pertains to the . Based on the aforementioned, the plan toward the 5G seems clearly drafted and in line with the telecom industry’s mantra of “flexibility, scalability and cost”, as epitomized by Mr. Lahoud.

Yonida Koukio is an IPilogue Editor and an LL.M. Candidate at Osgoode Hall Law School.��

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All things smartened up

��5G is the next generation of wireless mobile networks. The speakers highlighted that 5G networks are primarily designed for increasing capacity and enhancing connectivity while operating at much lower latency values. These ultrafast 5G airwaves promise to through the sharing of information—as buildings, cars, people, and a myriad of devices will be able to communicate with each other. The new technology promises to further enhance the users’ experience with smart devices, smart cars, and smart homes. In addition, 5G networks will allow emerging technologies to operate at a much larger scale.

From connecting people to connecting things in real time

��For example, the panel on 5G networks remarked that, due to the myriad of new capabilities and disruptive applications made available using 5G wireless networks, virtually all industries will experience important changes in how they work and cooperate with one another. Industries will leverage real-time connectivity to the benefit of both consumers and businesses. New capabilities will allow segments of industries to experience real-time economic data, offering the potential to prompt the . To enable all of these features, 5G network communications will increasingly rely on artificial intelligence (“AI”) and big data to build new applications and create more services. As a result, interested parties will have to be attentive as a new regulatory landscape may develop to accommodate the demands of this increased data sharing reality.

How does society become 5G ready?

��In addressing this question, speakers at CTS 2018 remarked that putting the new technology to use will require several regulatory and policy discussions. Among other challenges, there will be massive amounts of data that can be quickly collected, mobilized, and exchanged across 5G networks. In the commercial and government space, several jurisdictions have engaged in devising regulatory frameworks for the deployment of the new technology (see examples and ).

Canadian policy makers know that this is an industry that needs investment as well as a modern regulatory landscape across municipal, provincial, and federal levels of government. For example, in his , the Honourable , the federal Minister of Innovation, Science and Economic Development, announced that the Government of Canada will be launching two consultations�� to support 5G deployment:��the government is to add an additional 1GHz of millimetre spectrum to support 5G and is beginning a in advance of the 3500 MHz auction.�� Minister Bains also discussed an initiative through a Canada-Québec-Ontario partnership, (“ENCQOR”),��which he described as “a 5G test bed that will advance the development of 5G networking solutions and next-generation technologies and applications”.

Other countries, such as the are taking a great leap towards leadership in the manufacture and operation of network infrastructure. In Canada, industry operators and other stakeholders are well positioned to develop relationships with different levels of the government with a view to speeding up the process of creating standards and laying out best practices for the operation of 5G networks.

Bottom line

5G networks promises innovation, disruption, as well as policy and regulatory discussions. Industry operators and other stakeholders should be attentive to the new opportunities arising from 5G networks, but they should also stay abreast of the impact the Canadian regulatory landscape may have in the industry — particularly by virtue of the challenges that may arise from the vastness amount of data that will be quickly collected, mobilized, and exchanged across 5G networks.

Bruna D. Kalinoski is a contributing editor for the IPilogue and holds an LLM from the Osgoode Professional Development Program at 91��ɫ.

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Starting with quality, he emphasized the importance of having telecom services that are fast enough to allow everyone to participate in a digital community. One of the efforts that have been made to improve quality is the collaboration with Ontario and Quebec to launch (the Evolution of Networked Services��through a Corridor in Québec and Ontario for Research and Innovation) partnership. This $400 million public-private partnership provides��access to 5G networks to SMEs, researchers and academia. Through ENCQOR, the federal government hopes to advance 5G networks and drive long-term economic growth across Canada.

Minister Bains also described the 5-year plan (to be implemented between 2018 to 2022), which has the objective of��maximizing the amount of spectrum that is available in order to avoid "" and ensure that Canadians have unhindered access to wireless networks.

With nearly 70% of all schoolwork being connected to the Internet, access to the Internet is a necessity for our youth today, not a luxury. However, with 1.2 million Canadian children living in poverty, such access is unequal and incredibly limited for a large number of young Canadians. Minister Bains stated that it is important to correct this imbalance and ensure that these children have access to high speed Internet so that they can progress in both their academic careers and future endeavours. Similarly, measures have been taken to ensure that rural communities have access to high-speed Internet with the . Through this program, $500 million will be invested by 2021 into rural communities to help bring new infrastructure and provide coverage nationwide.

The provision of free computers to schools nationwide is one way the government is tackling the issue of cost by making telecom services more affordable and��allowing low income Canadians the opportunity to participate in the digital economy.

Minister Bains's key message is that this is all “... about the kids”. The purpose of these government initiatives is to help young Canadians who do not have reasonable access to the Internet – "every youth should have the means to stay connected in this digital economy to fulfil their aspirations."

In conclusion, Minister Bains lauded industry support has being integral to the success of these initiatives and encouraged the IT industry to “” and make Canada a global centre for innovation. Despite the efforts and consequent successes that have resulted from actively addressing the issues of quality, coverage and affordability of innovative technologies, Minister Bain's demonstrate that building Canada’s innovation ecosystem is a never ending work in progress.

Neda Foroughian is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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I. Preparing Canada for 5G Coverage

5G data coverage, which is the next generation of wireless data services, promises to make it possible for cities to become , as buildings, utilities, and people will be able to constantly share data. This connectivity can make cities more efficient by allowing businesses and government to mine this data, discover inefficiencies and redundancies, and correct them. Canada promises to be a major part of this initiative, with Google’s intention to build a , which will feature a fully interconnected neighbourhood.

The jurisdictions that can achieve 5G coverage will have a competitive edge in attracting new technologies and business opportunities that can take advantage of this new interconnectivity. , the CTO of Telus, noted that Canada needs a fully allocated 5G spectrum to take advantage of these opportunities. Mr. Gideon lamented that the Canadian Radio-television and Telecommunications Commission (CRTC) has not yet fully auctioned the 3.5 – 4GHz spectrum, where 5G will be broadcasted, and this puts Canada at risk of falling behind other jurisdictions. Not only have Western counties like the US, UK, EU and New Zealand allocated or planned out this spectrum, but so have Saudi Arabia, India, China, Japan and South Korea have as well. In his keynote, Mr. Gideon called on the Federal Government to create a clear strategy and timeline on how the 5G spectrum will be allocated and when; only once this is done can businesses seize on the new opportunities that 5G offers.

II. Big Data Firms – The Home Invaders

, EVP of , a major US business-to-business telecom service in the Internet of things (“IoT”) space, spoke of the need for telecoms to partner with large technology companies like Apple and Amazon so that Internet service providers are not left behind by the coming technology changes.

As major technology firms develop new IoT applications, like Amazon with Alexa and Google with Home, these companies are creating new interactions inside their customers’ homes, which are new opportunities to connect with their customers and build goodwill. Since these IoT devices rely on Internet connections to work, telecoms are a crucial part of this experience. However, Amazon and Google will reap the rewards of positive customer interactions and when they don’t work, the telecoms are blamed.

This leads to a situation where technology firms will benefit from the goodwill and telecoms will continue to be viewed as a necessary evil to facilitate online-based services. Telecoms suffer from as no customer loyalty is developed when IoT devices work, but when the devices don’t work the telecoms take the blame. One solution is for telecoms to partner with these firms, allowing them to piggyback off the brand building they are engaged in. If Rogers can offer a “Rogers + Google” service, there is more likely to be a positive customer association with the Rogers brand every time Google Home helps a consumer. This strategy is increasing with Fido packaging a with their phone plans and a in 2014.

III. Privacy and the Digital Footprint

While Mr. Weening’s presentation opened up many interesting possibilities for the future of telecom service, as a law student I couldn’t help but be concerned by the . The panel on privacy and information security focused on the implications for these new services and the need to evolve consumers’ digital footprint beyond a mere email and password combination.

, a Senior Fellow at Ryerson University’s Ted Rogers Leadership Centre and the former Privacy Commissioner of Ontario, noted that over the past two years, the percentage of consumer concerned about the privacy of their information has . Ms. Cavoukian pointed out that is more important and profitable for telecoms to build trust with their customers regarding the integrity and privacy of their personal information than to collect as much data as possible. She noted that when customers are informed that their data is private and only used for a specific purpose, they are more likely to consent to future requests for uses of their data in different ways.

Other panelists noted that since Canada adopted the Internet earlier than most countries, its and out of touch with the internet. Jurisdictions that were slower to adopt the Internet, like the EU, have observed the effects the Internet has on society and have had an easier time legislating accordingly.

A related panel, “Cultivating an Innovation Economy” discussed how telecoms need to help facilitate a revolution in digital identity. One of the biggest cybersecurity problems is that people protect their valuable data with an easily hacked email and password combination. However, smartphones are complex computers capable of acting as a digital fingerprint for online services. Telecoms that can create a secure digital identity for their customers could have a strong competitive edge as privacy and information security becomes a greater concern for consumers.

IV. Minister Bains on Connecting the Arctic and Rural Canada

The 2018 Canadian Telecom Summit ended with a keynote speech from the Honourable , Minister of , the department in charge of the Telecommunications Act.

Minister Bains spoke of the government’s partnership with Bell to bring , connecting Inuit communities to the rest of Canada. The construction of over 15 cell towers across the Northwest Territories and Nunavut could also help stimulate commercial investment in Canada’s North beyond the traditional natural resource extraction industries.

Minister Bains also introduced the new , where the government is planning to extend data coverage to many remote rural communities in Canada that currently have no data coverage. This initiative will also provide up to 50,000 low income families with a personal computer and access to a low-cost public internet plan for $10 per month. The goal of this initiative is to help alleviate isolation and poverty in rural communities by connecting them with urban Canada and creating new opportunities in their community.

V. Conclusion

This year’s Canadian Telecom Summit showed that the commercial opportunities created by telecommunication continue to broaden and that Canada is far from a global leader in this area. At the same time, there is a clear sense that the current government wants to make Canada’s technology economy more competitive and ensure that issues of privacy and accessibility are addressed. There is great promise in the commercial opportunities in this space, but measures like a clear spectrum allocation strategy and more competition in the telecom space is needed to spur more growth in this area.

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Back in 2001, the Government of Canada—then led by Prime Minister Jean Chrétien—. In the sixteen years since, gallons of ink and plenty of bytes have been used to call for a domestic strategy to address the country’s . The release of the Government of Canada’s , which included and the , has changed the debate in the country, replacing recurring calls for action (for example, see , , , , , , , , , and ) with cautious optimism—.

It was against this backdrop of a renewed innovation impetus that Canada’s Minister of Innovation, Science and Economic Development, , gave the opening keynote for the in Toronto. Minister Bains used this forum to advocate for . In his speech, he commented that connecting Canadians through access to telecommunications services is necessary because:

In his speech, Minister Bains referred to enabling connectivity and bridging the “digital divide” between Canadians; however, doing so will require more than simply connecting Canadians through telecommunications services and digital technologies. Public and corporate policies must be updated to capitalize on the strengths and mitigate the negative ramifications of innovation-based economic activity. , Co-Director of the at the , described how at the same time that Israel has become a key supplier of new technologies, it has also experienced pronounced economic inequality. Canada’s Innovation Agenda, then, must look to address the many facets of our digitally-connected lives and work to promote inclusiveness and opportunity for all Canadians.

The segment that the IPilogue’s Content and Social Media Editor writes about describes how Canada’s telecommunications industry players are – and are not – preparing for the increasing adoption of digital and interconnected devices. Cerilli notes the vital role that telecom service providers play in providing the backbone of digital connectivity, and how consumers aYonida may become more, assertive about receiving higher standards of services.

Similarly, Yonida Kouiko’s piece, , focuses on another key aspect of interconnected Internet of Things (IoT) devices: users expectations of and their need for privacy. She notes how the European Union (EU) is working to update privacy laws to instill Privacy by Design (PbD)—an engineering approach that seeks to make users communications and data secure at the earliest stages. However, as Kouiko demonstrates, PbD requires investment and expenditure by technology producers and telecommunications providers—and she wonders whether consumers will be willing to pay increased prices for more secure means of communication.

Questions surrounding affordability arise again in IPilogue Editor As Shukla notes, concerns surrounding the affordability of telecom services in Canada and questions about the level of competition in the country’s telecommunications industry have been recurring issues for successive federal governments. Given the ISED Minister’s remarks, exploring new service delivery mechanisms and a continued focus on affordability for Canadians look to be prominent points of debate.

Yet, as , the Executive Director of reminded me , attaining inclusive innovation will also require digital skills and education. Organizations such as CFSC help provide the digital tools and skills necessary to increase the talent-level of Canadians in innovative sectors. While the federal government’s includes measures to address the faced by tech firms in Canada, developing domestic expertise and experience remain essential.

At the CTS17 , the Vice-President, Research at the , touched on one such area of expertise, noting that Canada currently suffers from problems with commercializing the ideas and knowledge generated by Canadian researchers and entrepreneurs. Part of this problem, Schwanen noted, is due to Canada’s poor track-record of utilizing intellectual property (IP) law to keep Canadian inventions in the hands of Canadian companies. Familiarity with IP law and commercialization strategies are important for attaining access to capital (through investment and licencing opportunities) and access to customers (through branding and the ability to prevent others from appropriating one’s technologies, goods, and services).

Enabling and are crucial to improving commercialization prospects and assisting with the growth of the country’s innovation ecosystem. IP Osgoode’s own – and a small number of other Clinics across the country (such as at the and the ) – help address gaps in Canada’s entrepreneurial support system by providing pro bono IP information and assistance to early-stage and under-funded inventors and companies.

The vast array of policy and commercial issues at stake in the development of Canada’s innovation agenda and national IP strategy are daunting but imperative. As the country is increasingly recognized for having its , the time is right for an inclusive Innovation Agenda that provides benefits for Canadian companies, consumers, citizens, and society at large. Positioning the country as an will require a strategy that lays the groundwork for that help Canada’s cutting-edge ideas become economically and socially beneficial products and processes.

Joseph F. Turcotte is a Senior Editor with the IPilogue and the Coordinator. He��holds a PhD from the Joint Graduate Program in Communication & Culture (Politics & Policy) at 91��ɫ and Ryerson University (Toronto, Canada) and can be reached .

��***

��The brings together the leadership of Canada’s telecom, broadcast, and IT industries. For its 16th year, the CTS focussed on and featured keynote presentations and panel discussions on the range of issues facing industry and public policy makers in Canada. IP Osgoode and the IPilogue team members thank the CTS’ organizers ( and ) and for their generous support to allow us to attend.

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The Minister’s comments echo Canadian and international research regarding the costs of wireless services across the country. For example, a 2016 (Nordicity is a consulting firm that produces an annual telecommunications services price comparison study), prepared for the Canadian Radio-television and Telecommunications Commission (CRTC) found that Canada ranks the highest out of 8 selected Organisation for Economic Co-operation and Development (OECD) jurisdictions in Level 1 service basket pricing of Mobile Wireless Telephony (the lowest usage basket) and second highest in Service Basket 3, 4, 5 and 6 (denoting higher usage). The OECD, , stated that to bring down the cost of mobile subscription, Canada needed more competition in the telecom sector by removing foreign ownership restrictions.

, Rogers Senior Vice President of Regulatory, argued that such reports and claims are flawed, because they only factor in the premium players and do not account for flanker brands like Freedom, Chatr, Fido and Koodo.

This claim is not entirely true; although the flanker brands were not used to calculate the national aggregate, they were analyzed in a to demonstrate the price difference between incumbent brands (TELUS, Rogers and Bell), the flanker brands, and new entrants such as Videotron (which recently ). Overall, these flanker brands were 14% cheaper than incumbents and the new entrants’ prices were a further 20% lower than those of the flanker brands. Thus, the new entrants were almost always cheaper than the incumbents. In certain price brackets (such as Level 4, that includes unlimited calling, 2GB data and 300 SMS), they would cost over 60% less than the incumbents. Consequently, competition from new entrants is good for consumers, as was re-iterated by , Executive Director and General Counsel, Public Interest Advocacy Centre, who bemoaned the lack of a fourth national carrier that could effectively compete against the incumbents.

Minister Bains also announced that the government has that route phone calls, texts and data through WiFi networks. Earlier this year, the CRTC ruled against WiFi-based providers, . These Mobile Virtual Network Operators (MVNOs) have had a fair deal of success south of the border; for example, Republic Wireless, which operates off the Sprint network, has had .

However, , the Senior Vice President of Federal Government & Regulatory Affairs at TELUS, argued that this approach works because Sprint is the weakest network in the US and has an excess network capacity. He argued that ninety-nine percent () of Canadians have access to LTE networks because Canadian telecom companies have been successful on the fronts of coverage, quality, and investment. He went ahead to offer cautionary advice against the WiFi first approach saying, “Don’t mess with success because that is actually what has got us here.” , Chief Legal & Regulatory Officer for TekSavvy Solutions, countered that MVNOs like Republic Wireless have at least been successful in stirring competition, bringing the prices down .

To end the panel, the participants were asked to place themselves in the shoes of the federal government , Chief Legal & Regulatory Officer and Executive Vice President for Corporate Development at Bell Canada, argued that Over-the-Top (OTT) services like Netflix should be treated the same as other broadcasters. For the , he argued that since there is a significant amount of facilities based competition, there should be less regulation. He was also in favour of keeping that stipulates carriers to charge a just and reasonable rate for their services.

Interestingly, Bibic was in favour of keeping , which provides the CRTC with powers to enforce net neutrality (the ). While Abramson batted for more transparency in the process, Woodhead was of the view that not much needs to be done in the Telecommunications Act. Woodhead also argued that , which deals with the objectives of Canadian Telecommunications Policy, needs to be looked at as it is conflicting and gives the CRTC broad powers and having a regulatory answer for everything is a bad macroeconomic policy.

Finally, Watt aptly summed up these conflicting opinions saying, “I think we can all see why the rewrite will probably take five years. I wish us all well.”

and the lack of competition from a fourth national player. It will be interesting to see how the CRTC responds to the call for review of its decision against Wi-Fi based MVNOs. Till then, .

Prasang Shukla is an IPilogue Editor and an International Business Law LL.M. candidate at Osgoode Hall Law School.

***

The brings together the leadership of Canada’s telecom, broadcast, and IT industries. For its 16th year, the CTS focussed on and featured keynote presentations and panel discussions on the range of issues facing industry and public policy makers in Canada. IP Osgoode and the IPilogue team members thank the CTS’ organizers ( and ) and for their generous support to allow us to attend.

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Included in these discussions were a keynote address by Sanjay Mewada (Chief Strategy Officer of Netcracker) on the shift to digital services and impact of tech giants expanding their territory on the competition telecom players will increasingly face. Companies like provide business support and operation support systems, software-defined networking, and network functions virtualization to help communication service providers meet the expectations of their customers.

At the CTS17, Mewada emphasized the importance of moving away from traditional communication services and towards the adoption of digital models in order to thrive in the modern telecommunications industry. He highlighted that emerging features, like being able to proactively control bandwidth allocation to optimize and enable active monitoring of usage by customers, are setting new standards for internet service providers.

With Google’s (allowing consumers to choose which device on a Wi-Fi network receives the fastest connection) and already on the market, Mewada asked if consumers “would really want to go back to not having any control over the allocation of your bandwidth?” Indeed, once these features become “a matter of priority and focus” in the eyes of telecommunication corporations, more and more consumers will “know what is possible, [and] no longer like to stay with the bare minimum,” he said.

So, what is the outcome of tech giants like Google, Apple, and Hulu introducing new features into the telecom sector? “Why did Google have to come in to show a cable service provider how to be a digital service provider?,” he asked.

Mewada noted, “it is not about coming up with a brand-new thing, it is about providing the consumer with the right digital experience.” This shift to focussing on the client experience is key in ensuring the success of the telecommunication industry and not losing substantial market share to tech competitors.

Of course, with any adaptation also comes challenge. Mewada emphasized how the need to accelerate the delivery of new services to market remains hurdle for services providers. With the expectations of clients constantly changing and the avant-garde of the home-digital experience being increasingly bombarded with new innovations, according to Mewada there “needs to be a retooling of the processes” behind moving products from conception to implementation.

Mewada noted that the innovations provided by Google, Netflix, and other tech giants are actually blessings in disguise because they “open the market to expect new things” from service providers. In response, service providers merely “need to be there to provide that” to stay competitive, he said.

One approach involves adopting a “fast-fail” model. The fast-fail model seeks to optimize the movement of a digital service from conception to market through the use of small sample sizes as a preliminary testing ground. If it succeeds, then escalate – if it fails, then forget it and move on. While fairly new to telecommunications, this model has been adopted by Alphabet’s X research division, which to everything from driverless cars to augmented reality eyewear.

Furthermore, he noted that part of remaining successful in the contemporary market will involve anticipating future trends and shortening the turn-around time for providing clients with the same quality of services and products competitors offer. When applications like can rise to billion dollar valuations in the span of a couple years, having an interdisciplinary team that is ready to roll out high-quality services is of the utmost importance for preventing clients from switching to a more up-to-date provider.

In the end, keeping pace with the rapidly evolving tech sector is paramount to remaining competitive and maintaining and expanding a telecom business’s market share. Accordingly, clients will consistently expect to receive the latest and greatest in home entertainment and utility without feeling left behind tech giants, like Google and Apple, who are putting pressure on the telecommunication sector to offer a higher standard of service. ��In a dynamic and fast-paced field, perhaps Netcracker’s slogan of a business’s “most important step [they will take being] their next one” captures the pressure traditional telecommunications service providers will feel if they do not approach the industry proactively.

Dominic Cerilli is the IPilogue content editor and social media coordinator as well as a JD candidate at Osgoode Hall Law School.

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��The brings together the leadership of Canada’s telecom, broadcast, and IT industries. For its 16th year, the CTS focussed on and featured keynote presentations and panel discussions on the range of issues facing industry and public policy makers in Canada. IP Osgoode and the IPilogue team members thank the CTS’ organizers ( and ) and for their generous support to allow us to attend.

The post Disruptive Innovation and Digital Integration appeared first on IPOsgoode.

Technology, though, is developing at such a pace that any proposed legislation, however foresightful, will soon be outdated. Thus, , the concept proposed by Dr. , Executive Director of the at (and former Information and Privacy Commissioner of Ontario), is an astute solution to privacy protection that does not rely exclusively on legislation. Dr. Cavoukian suggests that privacy be coded or embedded into the design of information technology, networked infrastructure, and business practices. This proactive and non-remedial approach is user-centered and promotes transparency, incorporating the objectives of legislative reform efforts.

PbD has already been adopted in foreign jurisdictions. For instance, the European Union (EU) is a pioneer in implementing an up-to-date privacy regime that takes the PbD concept into account. Article 25 of the 2016/679 (GDPR), effective May 25th, 2018 onwards, stipulates that data protection measures are designed into the development of business processes for products and services. Meanwhile, the State of California looks to be taking the lead in legislating on . In particular, will create a mandate under California law, pursuant to which all IoT devices will have built-in security features appropriate to the device, as well as the information collected.

Embedding security features into IoT devices also ensures protection from cyber attacks. Network-connected devices can . As panelist , Principal Security Technologist at , mentioned, the technology to allow carriers to stop these attacks exists; what remains is to understand how it works.

From a maufacturing perspective, IoTs can be designed to ensure both security and privacy. However, as ,��General Manager��of Network Security for ’ Enterprise Business Unit, observed, embedding these features into IoT devices will probably increase their cost. Therefore, in an industry where competitors often strive to have more affordable products, IoT manufacturers need to identify specific commercial benefits for being the most “secure” in the market. Eventually, the ultimate choice should be given to customers, who will decide whether they want to invest more in devices with embedded security, or in less expensive ones with add-on (albeit compromisable) security features.

Yet, PbD alone is insufficient to promote privacy, absent a stricter regime on how (online) service providers obtain users’ meaningful consent. Most online agreements to-date include terms of service (), which further permit service providers – along with the third parties they contract with – to keep, analyze and sell their users’ data. By incorporating click-to-agree clauses into ToS, users wishing to access the respective services are left with no choice but to agree to give away their privacy rights. The majority of users are not incentivized to they agree to, since they are not in a position to negotiate a new agreement. As Dr. Cavoukian posited, a drastic reform is required on this front: ToS should prevent service providers from using their customers’ personal data by default, unless opt-in consent has been obtained, also entailing specific conspicuous disclosures. For instance, provides that ‘consent’ of the data subject comprises any freely given, specific, informed and unambiguous indication of the former’s wishes, by which they, through a statement or a clear affirmative action, demonstrate that they agree to the processing of their personal data.

Dr. Cavoukian also pointed to other risks from privacy and security breaches, related to remote home health care, closed-circuit television camera (CCTC) or surveillance cameras in mass transit systems, smart meters and the smart grid, near field communications, radio-frequency identification (RFIDs) and sensor technologies, big data and data analytics, and internet protocol address location (IP Geolocation). Interestingly, the latter is expected to be addressed by the United States (US) Supreme Court in , notably vis-à-vis the .

Recent Canadian jurisprudence, on the other side, has attempted to strike a balance among privacy rights, and the investigative power of law enforcement, with particular regard to telecoms’ compliance with formal search warrants and production orders. In the Supreme Court of Canada (SCC) interpreted the meaning of the word “intercept”, as defined under , in a broad fashion. It did so to protect individual privacy interests in communications. In specific, assessing whether a general warrant power can authorize the prospective production of future text messages from a service provider’s computer, . maintained that Canadians have a reasonable expectation of privacy in their voice communications; these must not be intercepted without compliance with the due process provisions of part VI of the��Criminal Code. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications, which should be extended to traditional voice communications and text messaging alike.

Similarly, the Ontario Superior Court in examined, inter alia, if there is a reasonable expectation of privacy in the records to be produced�� in compliance with the police’s “tower dump” production orders to further an investigation into a string of jewelry store robberies; and if so, whether the telecoms have standing to assert it on behalf of their thousands of affected subscribers. While the Court both issues in the affirmative, it also formulated specific guidelines which respect the information needed to obtain production orders: a statement or explanation is required that demonstrates that the officer seeking the order is aware of the principles of incrementalism and minimal intrusion, and has tailored the requested order with that in mind; an explanation as to why all of the named locations or cell towers, and all requested dates and time parameters, are relevant to the investigation; an explanation as to why all types of records sought are relevant; any other details or parameters which might allow the target of the production order conduct a narrower search and produce fewer records; and a request for a report based on specified data instead of a request for the underlying data itself, are also required. The police should also include confirmation that the types and amounts of requested data can be meaningfully reviewed.

Ensuring privacy is more crucial than ever, especially in light of the coming from the United Kingdom’s current Prime Minister, Theresa May, that internet companies are providing a "safe space"��for extremism, and her proposal to "regulate cyberspace to��prevent the spread of ". However, neither regulating against extremism nor the familiar ‘’ argument are sufficient reasons to leave the door open for potential privacy breaches. Similarly, tech firms, privacy campaigners and academics point out that providing “” underestimates the entire purpose of privacy, while allowing both law enforcement agencies and outlaws to open and bypass these safeguards.

In Canada, ��the Anti-terrorism Act 2015��(former Bill C-51) was criticized for entailing numerous , as it provided several federal government agencies with almost to monitor and profile ordinary Canadians, with a view to identifying security threats. ��Notably, in a 2016 the Federal Court ruled that used by the ��Canadian Security Intelligence Service’s data-analytics program violates federal laws, namely the . Thus, on the 20th of June 2017 the Government introduced : An Act respecting national security matters, which attempts to clarify, among other Bill C-51-related : what type of activities the Canadian Security Intelligence Service (CSIS) could employ in order to comply with the , and the information sharing process between federal institutions for national security purposes under the SCISA. Bill C-59 aims at: strengthening national security agencies’ accountability through the creation of a new, comprehensive national review body, the National Security and Intelligence Review Agency (NSIRA); enhancing oversight through the creation of an Intelligence Commissioner; and increasing transparency through a commitment to share national security information with Canadians.

By way of conclusion, the imperative of increasing the privacy threshold both from a legislative and ��industry practice standpoint is highlighted from the vast number of compromisable interconnected devices that have��become an integral part of our everyday life. Additionally, storage of��private information obtained via these devices by big data companies for either commercial or surveillance uses, makes it obvious that a proactive approach is required. This can be best achieved by embedding privacy and security not only into the design of information technology, but also to every networked infrastructure and business practice. Failure to do so is not limited to merely jeopardizing business reputation and risks from class action liability; non-compliance with international standards may as well hinder commercial relations, similarly to the effect of the����, which has been found invalid by EU courts.

Yonida Koukio is an IP and Business Law LL.M. Candidate at Osgoode and an IPilogue editor.

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��The brings together the leadership of Canada’s telecom, broadcast, and IT industries. For its 16th year, the CTS focussed on and featured keynote presentations and panel discussions on the range of issues facing industry and public policy makers in Canada. IP Osgoode and the IPilogue team members thank the CTS’ organizers ( and ) and for their generous support to allow us to attend.

The post Privacy by Default: A Privacy and Cyber-security imperative in the IoT and Big-Data Age appeared first on IPOsgoode.