Emily Chow is an��IPilogue��Writer and a 2L JD Candidate at Osgoode Hall Law School.

In the age of streaming, social media, and subscription-based entertainment platforms, critics have called for amendments to Canada's , which was last updated in 1991 – long before the internet we know today materialized. On February 2, 2022, Minister of Canadian Heritage Pablo Rodriguez , proposing sweeping changes to Canadian broadcasting regulation and policy directives. Referred to as the Online Streaming Act, this proposed legislation purports, among other things, to uplift and amplify Canadian creators by regulating online streaming services such as YouTube, Disney+, Amazon Prime Video, and Netflix.

Its predecessor, Bill C-10, was passed by the House of Commons but was unable to secure Senate approval before the dissolution of Parliament in 2021. Like Bill C-10, the proposed Online Streaming Act seeks to bring unregulated digital media platforms within the mandate of the Canadian Radio-television and Telecommunications Commission (CRTC). Currently, these foreign-based platforms operate outside the regulation of the CRTC as distinct from traditional TV/radio broadcasts, and thus are not required to invest significant resources in Canada's domestic creative industries. The Canadian broadcasting, film and television production sectors are substantial players in the Canadian economy, accounting for approximately $14 billion to Canada's GDP in 2019 and predicted to rise in the coming years. According to a poll cited by the Canadian Media Producers Association (CMPA),

The Online Streaming Act coins the concept of an "online undertaking," broadly defined as "an undertaking for the transmission and retransmission of programs over the internet," giving the CRTC wide discretion in determining what is considered a "program" under its framework. Furthermore, the CRTC would be empowered with the ability to order and impose conditions upon online services to advance various policy objectives, including promoting Indigenous and racialized community-produced content. ��

Reactions to the proposed legislation have been mixed. The CMPA, which represents over 600 independent production companies across Canada, have launched a They argue that the Online Streaming Act will redirect some of the streaming giants' profits back into Canada's creative sectors and make it easier for Canadian audiences to access Canadian and Indigenous content outside platform algorithms. Jennifer Brown, CEO of the Society of Composers, Authors and Music Publishers of Canada (SOCAN) told The Globe and Mail that she thinks .

Others are concerned with how the proposed amendments would affect user-generated content and individual rights to curate one's own media feed. Ramneet Bhullar from OpenMedia.org takes issue with , arguing that the threshold of "Canadian"-ness is inherently problematic and that the CRTC's expanded powers will only amplify "officially recognized content", rather than the content individual consumers want to see.

YouTube also spoke to CTV News, Youtube noted that arbitrarily promoting Canadian content could skew their algorithms. These algorithms take into account whether a video has been watched, ignored or turned off part way, thus affecting how the content is promoted.

Michael Geist, a law professor from the University of Ottawa that he believes “the starting point in the bill is that all audio-visual services anywhere in the world with some Canadian users or subscribers are subject to the Canadian jurisdiction and it will fall to the Commission to establish thresholds exempting some services from regulation. However, even with some exemptions, the Canadian approach will require registration and data disclosures, likely leading many services to block Canada altogether, reducing choice and increasing consumer cost.”

is currently at consideration in committee at the House of Commons, having completed its second reading as of May 12, 2022.

Further Reading:

Bill C-11 in its entirety:

CMPA's Campaign to pass the Online Streaming Act:

Global News: What’s a Canadian Film?

The post Regulating Netflix, YouTube, and TikTok: Reactions to Bill C-11 appeared first on IPOsgoode.

Links to all of the platforms can be found here:

Liberal Party of Canada:

Conservative Party of Canada:

New Democratic Party of Canada:

Green Party of Canada:

Intellectual Property and Technology

CPC

• Review program that will examine whether innovation programs support Canadian companies which keep their benefits, profits and patents in Canada (as opposed to the subsidiaries of foreign multinationals), including forming an expert panel to look at policies that will strengthen Canada’s ability to capitalize on intangibles like IP and improve incentives to patent;
• Green patents – Income generated from green technology patented in Canada attracts a 5% tax break;
• Require businesses that emit greenhouse gases over limits to invest in research, development and adoption of emission-reducing technology relating to their industry (facilitated by green investment certification);
• Set up a green technology venture capital fund that will leverage up to $1 billion in private investment for Canadian green technology companies;
• Make sure that IP protection is at the heart of new trade agreements;
• Provide government re-training programs to make sure that Canada’s tech industry can continue to grow, and make sure that academic curricula reflect the demands of the labour market;
• Launch a “Canadian Clean Brand” that will allow buyers to know they are getting a product that makes a difference for the environment;
• Expand rural broadband.

GPC

• Invest in job training for the new green economy (including by eliminating post-secondary tuition);
• Establish a Guaranteed Livable Income to respond to automation disruption (among other measures meant to respond to automation);
• Establish a corporate tax on transnational e-commerce companies doing business in Canada by requiring them to register in Canada;
• Fund research for shifting from conventional to organic and regenerative farming systems;
• Protect the right of farmers to save their own seed and promote heritage seed banks and seed exchange programs;
• Support the transition of the mining sector to an innovation hub for greener technologies, including $40 million for a proposed Sudbury-based mining innovation cluster;
• Invest in scientific research and implement the full funding recommendations from Canada’s Fundamental Science Review;
• Establish a portal where all government science, including the evidence the government uses to make its decisions, is available to Canadians in a comprehensible form;
• Adopt policies similar to Europe’s to ensure that publicly-funded research is available on the portal or in open access journals;
• Invest $400 million per year into a universal broadband strategy;
• Strike a parliamentary committee to examine the implications of introducing 5G technology and make recommendations on if and how Canada should proceed;
• Guard against threats to net neutrality;
• Make Canada the global leader in AI development and regulation, including by striking a parliamentary committee to examine the range of issues related to AI and provide recommendations for a legislative and regulatory framework;
• Institute a substitute tax for large corporations that is equivalent to the income tax paid by employees who have been laid off by AI;
• Track automation on a sector-by-sector basis with the aim of funding job creation;
• Ban autonomous weapons and fight for a global pact to make them illegal;
• Enact “Right to Repair” legislation;
• Amend CRTC regulations to increase competition in the provision of cellular and internet services;
• Protect consumers and investors from fraud and theft in the cryptocurrency spheres, and direct Revenue Canada and law enforcement to develop practical methods to prevent the use of cryptocurrency for money laundering and funding terrorism;
• Create a bulk drug purchasing agency and decrease the protection period for drug patents.

LPC

• Greater labour protections for those who work through digital platforms (ride-sharing, etc.);
• Halve corporate taxes for business that develop zero-emissions clean tech;
• Universal high-speed internet (95% coverage by 2026, 100% by 2030);
• Set up a cleaner fuel technology and commercial support to connect farmers, researchers, agribusinesses, and energy companies;
• Ensure accurate labelling on fish and seafood products to enable a “boat-to-plate” traceability program;
• Invest in marine science;
• Support an international protocol to ban the development and use of fully autonomous weapons systems.

NDP

• Price caps for cell and internet bills, expand broadband internet to every community in Canada, and make sure that a basic plan is available to everyone;
• Introduce a Telecom Consumers’ Bill of Rights;
• Introduce a right to repair electronic devices;
• Ensure that Canadians have access to proactive training and retraining programs for the new economy;
• Protect Canadians against trade agreements that could increase the cost of pharmaceuticals, undermine privacy rights, or weaken cultural protections;
• Invest in driverless technology, hybrid and electric vehicles, with an emphasis on made-in-Canada cars;
• Invest in clean aviation technology development;
• Sector-specific investments in innovation and R&D, focusing on low-carbon technology;
• Review federal procurement to ensure that, whenever possible, Canadian bidders are encouraged (including projects supporting the expansion of digital government);
• Foster entrepreneurship and support Canadian start up culture, helping Canadian companies commercialize new technologies and scale-up;
• Invest in public agricultural research and data collection, and ocean science and technology;
• Support bringing innovative Canadian clean technologies to market;
• Provide support for provinces to introduce smart grid technology;
• Set up stand-alone legislation to regulate natural health products.

Cultural Policies

GPC

• Increase funding to all of Canada’s arts and culture organizations including the Canada Council for the Arts, the National Film Board and Telefilm Canada;
• Restore anti-trust laws to enable the break-up of media conglomerates;
• Close the social media platform advertising tax loophole and ensure that all government advertising is in Canadian publications;
• Invest $300 million per year in the CBC/Radio-Canada until its funding matches the per-capita funding of the BBC;
• Ensure that foreign internet broadcasters are subject to Canadian Content regulations similar to those imposed on Canadian broadcasters.

NDP

• Make sure that Canadian talent can thrive on digital and traditional platforms;
• Ensure that companies like Netflix, Facebook, and Google have to pay taxes and comply with Canadian content requirements, just like other media outlets;
• Extend support to Canadian media to assist them in making the digital transition.

LPC

• Require CBC/Radio-Canada to open up its digital platform for use by journalism start-ups and community newspapers;
• Improve access to digital collections for national museums;
• Provide new legislation that will require internet content providers to offer meaningful levels of Canadian content, contribute to the creation of Canadian content, promote the content, and make it easily accessible on their platforms;
• Increase Telefilm Canada’s budged by almost 50% per year;
• Develop a framework for repatriating Indigenous cultural property and ancestral remains.

CPC

• Support cultural industries.

Privacy

LPC

• Empower the Privacy Commissioner and move forward with ;
• Provide the right to: data portability; withdraw, remove and erase basic personal data from a platform; know how data is being used, supported by a national registry on data use or sale, and include an ability to withdraw consent; review and challenge the amount of personal data that a company or government has collected; data security; be informed when personal data is breached, including a right to compensation; be free from discrimination and harassment online;
• New Data Commissioner to oversee and regulate large digital companies;
• New regulations for social media platforms, including requirements that they remove illegal content within 24 hours.

CPC

• Introduce a Cyberbullying Accountability Act that will prohibit the use of a phone or the internet to threaten or advocate self-harm; the location of the crime will be the location where the victim is at the time the offence occurred, and the Act will include civil liability;
• Consent requirement for data collection, and a plain-language agreement requirement;
• Provide regulatory, ethical standards for the secure use of AI and the Internet of Things, as well as for other critical infrastructure sectors (like banks);
• Create a “Canada Cyber Safe” brand to allow Canadians to make educated choices about the security features of their devices, applications and appliances;
• Test and reform government cyber security.

GPC

• Require the Communications Security Establishment and CSIS to get a warrant before intruding on Canadians’ communications;

• Prohibit the routine surveillance of Canadians who protest against the government and the sharing of protester and NGO staff information with the NEB and others;

• Significantly increase the powers of the Privacy Commissioner, in particular to protect identity and personal data, and to enforce privacy laws;

• Require companies to grant access to all information they hold on an individual, and a right to be forgotten and to delete information from company databases upon request;

• Establish a parliamentary inquiry to recommend modernizing privacy laws respecting the internet of things;

• Create mandatory data breach reporting for the government, companies, banks and political parties;

• Regulate social media platforms to ensure that only actual people, with verifiable identities, are able to publish on those platforms;

• Prohibit cyber surveillance and bulk data collection by intelligence and police agencies;

• Require that ISPs can only release data when required by a warrant or in an emergency;

• Require that political parties follow the Privacy Act.

NDP

• Convene a national working group to counter online hate;
• Enhance real-time oversight of security services, fully respecting the privacy and Charter rights of all Canadians, to deal with foreign interference and espionage, terrorism and cybercrime;
• Boost the powers of the Privacy Commissioner to make and enforce orders;
• Require social media platforms to flag and remove fraudulent accounts, and to respond promptly to harassment, threats and hate speech.

Please remember to vote on October 21^st if you are able!

Peter Werhun is an IPilogue Editor and a JD candidate at Osgoode Hall Law School

The post Where they Stand: The IPilogue Guide to the Federal Policy Platforms appeared first on IPOsgoode.

A 2012 acknowledged the growth of OTT services, but recommended that Canadian broadcasters respond by moving aggressively into the OTT space rather than creating a new regulatory category for internet media. Rogers and Shaw attempted this in the past few years with their OTT service Shomi, which has since failed, but Bell’s CraveTV .

At the end of 2016, Netflix and Amazon Prime announced that they were expanding their service into virtually every country in the world, with Netflix in 190 countries and Amazon Prime in 200. With OTT services now becoming truly global in scope, how will Netflix and Amazon simultaneously deal with the media regulations of every government in the world and how can Canadian content producers and distributors continue to compete?

by Brian Barrett, a senior writer at Wired and former Editor in Chief at Gawker Media answers the first question with two words: original content. If OTT services invest in creating their own shows, a significant amount of work around licensing the rights to stream movies and shows by other producers eventually gets cut out as more and more content is added directly by the provider. A previous example is Comcast’s in 2009 where a major broadcaster bought a major content producer to gain greater control of the media supply chain.

Over the past 5 years Netflix and Amazon have done just this, growing their library of original TV shows and movies. Bell has begun to produce its own shows through CraveTV, signalling an adoption of this model in Canada. The effect of a distributor owning its own content is that it makes licensing unnecessary, as a single entity now owns the rights to the content in perpetuity and therefore can distribute them without need for a license. This saves time and money and simplifies the supply chain of delivering content but it also signals a major shift that concerns media creators and distributors around the world.

If more and more content that people want to consume is produced by OTT distributors, then the ability of Canadian media companies to get licences for in-demand shows becomes far more difficult and will cut them out of the supply chain. Bell currently has licences for HBO and Showtime, two popular US content producers, but both have their own small OTT services, HBOgo and Showtime Anytime. The first is currently available in Canada with a (a subsidiary of Bell), the second is . If the big OTT’s gamble on content creation pays off, these content creators may try to grow their own OTT presence globally rather than keep selling licences.

While it is clear that Canadian distributors need to focus on content creation, it is also important that this content be marketable outside Canada. The federal government has affirmed a commitment to move from “focusing on growing the��domestic��market” to “capturing a greater share of��global��markets” in a recently commissioned Heritage Canada titled “Canadian Culture in a Digital World”. Heritage Minister Mélanie Joly told the in 2016 that the biggest challenge for content producers is “finding better ways to export the material on digital platforms around the world”. The article noted such a review of CanCon rules is a major upheaval not seen in 25 years.

The move to global OTT services signals an increase in demand for high-quality content and a reduction in the barriers to distributing content to other markets. Canada is well positioned to profit from this change, if it allows it creators and distributors the freedom to create shows that are compelling to global audience, not just a Canadian one.

Roger Angus is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

The post As Netflix Goes Global, CanCon Must Broaden Its Appeal appeared first on IPOsgoode.

As the Government of Canada has , "new business models and new market strategies will be needed if the Canadian digital media sector is to succeed in the global digital economy. " For example, "Over-the-top" service providers, such as��Netflix, as well as an array of companies offering on-demand or��à la carte��options, notably Apple Inc. via��iTunes, are��growing in popularity, ,��and demonstrating the shifting nature of the contemporary television landscape in Canada and across the world.

Due to these changes in how Canadians view television content, the country’s television regulator is seeking advice from the Canadian public to determine if and how television regulations must change.��For the CRTC, “making the right choices about how we shape Canadian television requires a complete and in-depth understanding of the Canadian television viewing experience.”

The regulator has, therefore,��asked Canadians to reflect��on the their habits and offer advice on three areas: “Programming: What do you think about what’s on television?;��Technology: What do you think about how you receive television programming?; and a so-called��Viewer Toolkit: Do you have enough information to make informed choices and seek solutions if you’re not satisfied?”

A common area of concern for many Canadian television viewers sits at the convergence of these first two topics: the relationship between programming — often of foreign content — and emerging technologies. Canadian consumers are often irritated to find that the content they wish to watch online is unavailable to them because of their geographic location.

Due to the nature and complexity of content licensing agreements, many popular programs are "" for viewers based in Canada or are otherwise unavailable to Canadian-based service providers. The frustrations surrounding Netflix’s��2010 entrance��into the Canadian market epitomize this. At the time, many Canadians were irritated by Netflix Canada’s relatively��limited selection��when compared to the service as offered in the United States. These sentiments continue today; have been created to track the differences between the Canadian and American services.

Geo-blocking and the unavailability of foreign content are distinct but related issues for Canadian viewers as well as service providers.��Geo-blocking��is a technological protection measure, allowing rights-holders to determine who can view content based upon the geographic location of a user’s Internet Protocol address. Rights-holders employ this technology in order to recreate traditional, geographically-based broadcast boundaries in the online environment. In , digital media consultant Alan Sawyer��argues: “since this is consistent with the realities of the physical world, it's a logical approach for broadcasters to take and makes a sensible foundation for enforcing territorial licensing agreements – and it preserves the effectiveness of the existing ad-supported model and helps broadcasters avoid disintermediation.” Foreign websites restrict access to the content that they host based on the territorial markets that they are attempting to serve and generate revenue from.

Territorial licensing agreements also determine what content Canadian websites and services can offer to their markets. Much of the television content offered by Canadian service providers as well as foreign companies operating in the country is produced internationally, primarily in the United States. Service providers in Canada must therefore negotiate����with particular rights holders in order to deliver this content to Canadian audiences. In certain cases, popular foreign programming is often unavailable to Canadian viewers.

The CRTC is not directly involved with what content service providers license from rights-holders. So while many Canadians may wish to discuss this topic during the CRTC’s��Conversation, the regulators hands may be tied in terms of addressing the problem.

Instead of attempting to solve the business model challenges of Canadian service providers, better results might be obtained if the regulator focuses on ensuring that Canadian content continues to be produced and delivered to Canadians via traditional and emerging media. As more and more content migrates to online platforms, the CRTC will need to explore whether or not Internet-based content providers need to be regulated so that they contribute to the creation of domestically produced content.

[Note: As part of the #TalkTV proceedings, (a non-partisan, student-run initiative of the York & Ryerson Joint , Politics & Policy stream), is hosting a ‘Flash Conference’ on December 4, 2013. More information is available .]

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at �첥��Ƶ, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.

The post Canadians #TalkTV: The Question Surrounding Digital Content Licensing appeared first on IPOsgoode.

In May of 2010, the Government of Canada launched a nation-wide consultation to gather ideas for moving Canada forward in the ever-evolving digital environment. It has now been over three years since this consultation and the implementation of these recommendations has yet to occur. As recently as 28 August 2012, then-Industry that he would “launch a Canadian-made digital economy strategy by the end of the year.”

As 2013 draws to a close Canadians as well as foreign investors interested in accessing and contributing to the Canadian market continue to wait.

Crafting a comprehensive strategy for capitalizing on the promises offered by digital technologies and network connectivity is a difficult task. This broad area overlaps a number of related and divergent areas including telecommunications, broadcasting, cultural heritage, international trade as well as various industry and economic concerns. However, a strategy for coordinating digital activities across these various areas is an important step for signalling to Canadians and the world that the country is looking and planning for the economic realities of the future.

Measuring and demonstrating direct causation between digital technologies and growth remains a��. However, international organizations and market analysts are increasingly recognizing the importance of the Internet and digital media for economic and human development. The (OECD) has that we “should expect that in the long term, the development of the Internet boosts knowledge creation and enhances per capita income growth across the economy” (p. 23).

Similarly, in their 2011 “Internet matters: The Net's sweeping impact on growth, jobs, and prosperity”, the found that the Internet’s worldwide economic impact, in terms of gross domestic product (GDP), is (p. 2). The report finds that over the past five years the Internet has contributed to 21% of GDP in ‘mature’ countries and places Canada at the average level (10%) for domestic contributions to GDP (p. 16).

Countries, albeit those with larger overall economies, that have already developed strategies to benefit from digital activities — such as the United States and the United Kingdom (where the Internet contributes 15% and 23% to their GDPs, respectively) — are doing comparatively better at capturing growth advantages. However, the McKinsey Global Institute also noted that Canada has a great deal of Internet usage that can be leveraged to increase the country’s presence and benefits in the global supply ecosystem (p. 4). Formalizing a Canadian Digital Economy Strategy will assist in this respect.

Despite its absence from the recent Speech from the Throne, I think there is room for optimism about the future of Canada’s Digital Economy Strategy. This past summer and named the as the new Minister of Industry. Minister Moore is widely regarded as one of the Governments most effective communicators and skilled operatives at moving policy forward. In his previous position as the , Moore helped move the country’s long-awaited reforms to the forward.

Doing the same thing with the Digital Economy Strategy may prove just as challenging. The five areas during the consultation process—‘Capacity to Innovate Using Digital Technologies’, ‘Building a World-Class Digital Infrastructure’, ‘Growing the Information and Communications Technology Industry’, ‘Digital Media: Creating Canada's Digital Content Advantage’, ‘Building Digital Skills for Tomorrow’—are diverse and cut across a number of industries, policy areas and government departments.

Calibrating these economic, innovation, cultural, heritage, social, and intellectual property (IP) concerns will take political skill and the resolve to advance policy-oriented solutions. In my opinion, one of these areas will be comparatively easy, as Canada’s IP policies are largely set for the foreseeable future. The and Bill C-8 (previously known as Bill C-56),�� the '', purportedly aims to align Canada’s laws and priorities with its international trading partners. (Past IPilogue coverage on Bill C-8/C-56 can be found and .) A Canadian Digital Economy Strategy will need to take these priorities into account and position the country’s industries and citizens to take advantage of digital opportunities.

The intersection of IP and technology law with a number of other policy areas requires a principled framework for fostering Canada’s digital advantage. Minister Moore and those involved in this process should work to ensure that such a strategy fosters access to digital technologies and content, the ability to use these resources in innovative ways, and that it provides legal mechanisms that entrench the security and privacy necessary to legally use, develop, and exploit digital resources for economic and human development.

In my opinion, successfully steering this ship to port will help define Moore's time as the Minister of Industry and may also set him up nicely for any future endeavours he undertakes.

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at �첥��Ƶ, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.

The post The Ever-Present Need for Canada’s ‘Digital Economy Strategy’ 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.

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.

��

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.

The post CRTC Gives Rejection With a Silver Lining to Sun News appeared first on IPOsgoode.

In what is now dubbed the Supreme Court’s “copyright pentalogy”—five copyright judgments released concurrently by the Court in July 2012[1]—the unprecedented importance accorded by the Court to the principle of technological neutrality is clear; what remains unclear is precisely what “technological neutrality” means, why it matters, and whether or how it can (or should) ever be attained.

This chapter aims to critically assess the significance of the principle and its potential to guide the future development of copyright law and policy in Canada. In Part 2, I set out the various shades of meaning that can be attached to technological neutrality, first as a principle of sound regulation, and then as a principle of statutory interpretation by the courts. I review, in Part 3, the reasons delivered by the Justices in three of the five cases to examine the various and divergent ways in which the principle of technological neutrality was defined and rationalized by members of the Court. I proceed to explore the application of the principle and its role in resolving the legal issues before the Court, drawing connections between conceptualizations of the principle and its interpretive impact, and focusing on its capacity to support the extension and/or circumscription of owners’ and users’ rights.

In Part 4, I consider whether the role accorded to technological neutrality as a guiding principle is justifiable or appropriate in the context of Canadian copyright policy. Arguing that its justification is found in, and flows from, the concept of balance at the heart of the copyright system, I proceed to offer some thoughts on its potential significance in the future of Canadian copyright law and in light of the recent amendments to the Copyright Act.[2] Part 5 concludes that the new emphasis placed by the Court on technological neutrality as a guiding principle is an important and positive development for Canada’s copyright system. The caveat, however, is that the principle cannot perform this role effectively if conceived (or rhetorically invoked) as a limited principle of formal non-discrimination that merely justifies the extension of copyright’s reach. Rather, I argue, it must be conceived in a functional sense, shaping copyright norms to produce a substantively equivalent effect across technologies, with a view to preserving the copyright balance in the digital realm.

Featured here is the first part of a book chapter written by Carys Craig, Associate Professor at Osgoode Hall Law School. The full chapter is available for download . The book is entitled "The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law" edited by Michael Geist, and is available for purchase or download .

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Key Messages

There were three messages intertwined throughout Blais' presentation. He first discussed the CRTC having the courage to both step up and step back in regulating. He elaborated that it was the role of the Commission to intervene when market forces were insufficient to accomplish objectives in the public interest. With respect to telecommunications, he highlighted the recent release of the����as a need to interject in what he sees as a largely unregulated wireless��market. He also discussed the need to impose conditions on the CBC's broadcasting����to ensure it meets the needs of Canadians, and why Bell's proposed��acquisition��of Astral Media's assets was in the public interest. Blais then spoke of recent times when the CRTC relaxed regulation, presenting only one example - when minor specialty channels were����from regulation until reaching 200,000 subscribers. He did acknowledge, however, that regulation can sometimes become an end unto itself, and an ineffective instrument only creating needless complexity.

Along with his message of stepping up and stepping back, Blais next discussed the role of public consultation. He cited robust public consultation as an important contributing factor to the successes of both the Wireless Code and CBC's license renewal, while continually being able to balance the opinion of the majority with the needs of the minority. Blais ended his presentation outlining the next public consultation, which will begin this fall, concerning the future of television. He described this as an unprecedented opportunity for the Canadian industry and public, particularly to question the assumptions underlying the CRTC's regulatory policies. This led to his third key message - a recognition that broadcasting has changed and will never be the same. He stated further that the actions of the��Commission��need to evolve as technology has, in order to ensure the objectives of the��Broadcasting Act��remain fulfilled.

Positive Steps

It is refreshing to see Blais commenting on the new world the CRTC lives in, and that the one in which��the�������Ի�����were born in no longer exists. As YouTube channels proliferate and broadband����is as ubiquitous as����TV, Blais also understands the focus must shift from protection to promotion. Quotas for Canadian content and cable channel bundling are ineffective policies in an on-demand internet access world. This is underlined by Blais' suggestion of a shift from rules to outcomes, and an overall sentiment that protecting Canadian interests requires a new perspective.��It is good to see the chief regulator understand the need to change tactics in the new world to ensure the objectives of these two acts remain relevant. This also highlights Blais' understanding that the new issues challenging the mandate of the CRTC cannot be addressed by an outdated paradigm of thinking.

Future Opportunities

Blais' presentation leaves two major areas of concern. While stating the need to sometimes step back, he was hard pressed to find substantial examples of reducing regulation. Also, he focused��heavily��on the role of the CBC, particularly in creating creative content to serve the needs of Canadians. Given that the presentation was made to content creators, it was natural for him to focus on the role of regulating the CBC.

There was little discussion, however, that the needs of Canadians could be better served through other mechanisms. While publicly funded content through the�������Ի�����may have been needed in the old world of media production and distribution, there are a myriad of alternatives now available, which seemed to be noticeably lacking in Blais' speech. Barriers to entry have fallen with the rise of the internet and high-quality, low-cost recording hardware and editing software. Producers can now create content at a vastly lower cost, and easily distribute them through avenues such as YouTube and Twitter, which feature built-in monetization systems. While Blais did stress the role of public consultation, he failed to explain why the free market is failing in creating the content��Canadians��need. He also referred to a statistic of higher conventional television consumption than internet television, but overlooked many other forms of��.

Looking Forward

While it was refreshing to see Blais express sentiments about the evolving world of media, it seemed there are still further opportunities for the CRTC to embrace the new world of media. More encouraging was his commitment to public consultation and an input from ordinary Canadians, whom Blais��describes��as often having extraordinary insights into the industry. We can only hope that this��extraordinary��insight will come through, and the CRTC can pave a path for Canadian media well beyond the model that has pervaded until now.

Alex Buonassisi is an IPilogue Editor and a JD Candidate at Thompson Rivers University.

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For a comprehensive, entertaining, pun-filled and generally geek-tastic video primer on the two sides to the Game of Thrones piracy debate, please see by Mike Rugnetta.

The Cultural Buzz Argument

The dominant pro-piracy narrative has focused around the concept of “cultural buzz” and the promotional value of piracy and its residual impact on sales. :

“No, it's great. It really helps the show's cultural buzz, and it does not impact the bottom line because HBO has more than enough money to keep making the show… this makes HBO the center of a cultural conversation about illegal downloading, about streaming content, about the production of content and distribution of content, which is probably somewhere they really want to be."

Even HBO’s programming president Michael Lombardo these positive sentiments about privacy,

"I probably shouldn't be saying this, but it is a compliment of sorts… The demand is there. And it certainly didn't negatively impact the DVD sales. [Piracy is] something that comes along with having a wildly successful show on a subscription network."

 

The Moral and Legal Retort

But not everyone is happy about this historic record. Anti-piracy advocates fall into two camps: those that believe piracy is wrong and those that remind piracy is illegal. The distinction is subtle, and there is some overlap, but the latter argument seems far more prevalent in online discourse. ��Blogger John Birmingham politely that they’ve got their understanding of criminal law wrong.

“Specifically, there was one argument that kept coming up again and again. That unauthorised downloading is not theft; at worst it’s a copyright violation, which somehow sounds less serious. Almost admirable and kinda Robin Hoody in fact... And sure, in a strict literalist interpretation of most statutes in the various jurisdictions which take seriously the protection of intellectual (as opposed to ‘real’) property, theft and copyright infringement are treated separately. But both are usually defined under criminal law, and both are punishable with fines and jail terms.”

The more moral argument is furthered by ,

"What you hope is that even though people watch it online, they will still buy the DVD. You can always hope…At the end of the day it's stealing. I know it doesn't feel like it but it is and it's not right."

 

Analysis

Market failure is being touted as a for the piracy; delays in the availability of HBO shows around the world have been argued to lead to fans downloading out of necessity. This doesn’t necessarily explain why the US was the country responsible for the highest percent of illegal TorrentFreak Game of Thrones S3E1 downloads. is a born-and-bred US channel that is more accessible domestically than anywhere. So it seems that the math to this argument doesn't add up. Moreover, I’m unclear why market failures would justify breaking the law. If the capitalist claim were that piracy effectively hurts Hollywood enough to be an appropriate bottom line motivation, then I believe we’d see some kind of adjustment in content distribution on the part of HBO. That doesn't seem to be happening in any short order.

And even if it did, it likely wouldn’t matter. Laws don’t serve at the pleasure of the market; the market serves at the pleasure of the rule of law. Citizens who have problems with anti-piracy law should be voting with a ballot, not a cursor. From this paradigm, illegal downloads starts to look a lot more about laziness than consumer rights. Finally, these statistics are shaky ground for the foundation of any debate. There’s a definite English bias – 4 of the top 5 countries on the list are English-speaking and it’s an English-speaking show. Sure Game of Thrones could be the most downloaded show of all time. Or it could be the most downloaded English show of all time.

In honesty, I don’t know what the most popular shows are in India and China. But if they’re not English and BitTorrent has an English show bias, then the data set starts to look particularly weak. And in addition to factoring in language, a truly fair comparison would weight downloads by country population and broadband internet penetration.

In conclusion, excitement about Game of Thrones piracy is noble fantasy.

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

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