Companies like Facebook, Google (Alphabet), Amazon, and Uber have long presented themselves as creative pioneers who collect and analyze massive amounts of user data to improve the human condition. Savvy marketing and personal acts of altruism have combined to create a calculated image of these companies as rebels and outsiders, doing no evil, working to leverage data analytics to disrupt tired and unimaginative incumbents in order to connect and empower the world. The tech community’s first major crisis occurred via the unbridled economic hype and enthusiasm presaging the , and current big tech companies may be similarly humbled by ongoing pricks to the veneer covering the structural deficiencies of their data-driven business practices. Recently, French President Emmanuel Macron has about the need to “dismantle […] these big giants” as a competition issue, and, here in Canada, there is a growing call for a that prioritizes domestic interests.

Facebook’s current time in the spotlight is just the most recent instance of big tech’s proclivity for moving fast and, unintentionally, breaking the wrong things. Zuckerberg may have inadvertently said as much himself in the immediate wake of the Cambridge Analytica revelations. In an interview with the New York Times, he , “If you had asked me, when I got started with Facebook, if one of the central things I’d need to work on now is preventing governments from interfering in each other’s elections, there’s no way I thought that’s what I’d be doing, if we talked in 2004 in my dorm room.”

Such a revelation may be an instructive lesson for a fresh-faced undergraduate student thinking through the implications of disruptive technologies for the first time. However, they are worrisome when the head of a global technology behemoth who has run the company for over a decade and has utters them.

But they’re not terribly shocking. Since the early 1990s, lawmakers and technologists have advanced the idea of increased connectivity through information and communication technologies (ICTs) as, what then-Secretary of State Hillary Clinton would call them some 20 years later, the . In with the New York Times, Zuckerberg echoed a similar sentiment to defend Facebook’s revenue model: “The thing about the ad model that is really important that aligns with our mission is that — our mission is to build a community for everyone in the world and to bring the world closer together. And a really important part of that is making a service that people can afford. […]Therefore, having it be free and have a business model that is ad-supported ends up being really important and aligned.” However, a from Facebook Vice President Andrew Bosworth that seemingly downplays “the ugly” side of Facebook’s activities effectively punctures this grandiose narrative. Today’s big tech firms have come of light-touch regulation from lawmakers and responded by giving normative and ethical concerns a back seat to connectivity and disruption.

More recently, though, legislators on both sides of the Atlantic have begun to rethink this arrangement. In the European Union (EU), next month’s enforcement date for the new will introduce heavy fines for companies that do not comply with harmonized data privacy regulations. And at a into Russian online disinformation activities during the 2016 Presidential election campaign, Senator Dianne Feinstein from Facebook, Twitter, and Google that “You created these platforms, and now they’re being misused. And you have to be the ones who do something about it—or we will.” Depending on the outcome of Zuckerberg’s appearances this week, the US Congress may begin to make good on Sen. Feinstein’s threat.

Regulating or, in the words of Macron, dismantling big tech will be no easy task. These companies have amassed large stores of data about our innermost feelings and have developed technologies that . These companies have also entranced governments with the promise of jobs and economic prosperity . It is imperative that any attempts to harness big tech for the public good are not done in a knee-jerk or . The challenges these companies and new emerging technologies pose require long-term and strategic thinking around the social, economic, ethical, and democratic impacts of our increasingly data-driven society.

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 �첥��Ƶ and Ryerson University (Toronto, Canada).

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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 �첥��Ƶ 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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Speaking to a room filled with representatives from the telecom, broadcast, and IT industries, the Minister thanked them for their ongoing investment in Canada’s technological networks, saying that because of these efforts “Canada has some of the most advanced and efficient telecom networks”. As well, Minister Bains highlighted the efforts of and to provide affordable Internet access to low income Canadians.

Calling Internet services “basic and essential tools for all Canadians,” Minister Bains stated that Canadians “need these services to do business, learn new skills, and more importantly, build communities”.

Minister Bains noted, however, that Canadians currently pay more for basic cellular phone services than consumers in the United States and United Kingdom. These price comparisons may be based off of a prepared for the Canadian Radio-television and Telecommunications Commission (CRTC) by .

The Minister said he is encouraging service providers to . Minister Bains also announced that the Government will be directing the CRTC to reconsider its recent decision on .

Minister Bains hopes the CRTC will rethink the decision, which effectively prevents Wi-Fi-based service providers from accessing roaming services. The Minister believes that such services have the potential to allow companies to use these technologies to create lower-cost wireless services for Canadians and would like the CRTC to reconsider the Wi-Fi-based roaming model.

At the Canadian Telecom Summit, Minister Bains stated that “raising the prosperity of Canadians depends on their access to high quality, high-speed Internet”. His comments were framed in the context of the government’s most recent budget, which included its .

According to Minister Bains, it is through telecom networks that it will be possible to turn “consumers into producers, observers into participants, and users into innovators”.

In his keynote, the Minister stated access to affordable telecom services can be a significant barrier preventing low income Canadians from fully participating in the digital economy and the economy, in general. “There is no difference to the digital economy and the rest of the economy. The digital economy is the economy,” Minister Bains said.

In a , analysts and academics , , and (the ), express similar findings and concerns, arguing:

.

In many respects, there is a general agreement around the importance of bridging the geographic and economic digital divides in Canada but questions remain about how to solve these problems. Telecom consultant , co-founder of the Canadian Telecom Summit, has and the Public Interest Advocacy Centre (PIAC) from the consumer rights and public interest perspectives.

With the Government of Canada reviewing both the and Acts, it will be important for Minister Bains and his Ministry of Heritage colleague to ensure that legislative reforms and forthcoming policies and allow all Canadians to benefit from the government’s Innovation Agenda.

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 �첥��Ƶ and Ryerson University (Toronto, Canada), where he focused on the roles that knowledge, information, data, and intellectual property play in knowledge-based and digital economies. He can be reached .

[1] The brings together the leadership of Canada’s telecom, broadcast, and IT industries. For its 16^th year, the Canadian Telecom Summit is focussing on “Competition, Investment and Innovation: Driving Canada's Digital Future” and features keynote presentations and panel discussions on the range of issues facing industry and public policy makers in Canada.

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Critics of the TPP have disparaged the agreement for serving the interests of large US-based corporations. World Bank chief economist, Clinton Administration advisor, and Nobel laureate wrote an denouncing that the working text was held “secret from the public (even though the details are accessible to hundreds of advisors to big corporations)” and that the treaty “proposes to freeze into a binding trade agreement many of the worst features of the worst laws in the TPP countries, making needed reforms extremely difficult if not impossible”. In Canada, innovative entrepreneurs including former Blackberry/Research in Motion co-CEO Jim Balsillie (who is now helping create a tech-focussed lobby group,��) argue the TPP IP measures are��.

The copyright and related rights sections of the TPP����largely cohere with existing Canadian law����and obligations under other international treaties. As indicated in Global Affairs Canada’s��, the TPP��“Provides protection and enforcement of copyrights and related rights, reflecting or building upon the World Intellectual Property Organization Internet Treaties. Canada ratified the Internet Treaties in 2014.”��As well, Global Affairs Canada notes that the TPP��“Reflects key aspects of Canada’s regime, including: Canada’s Notice-and-Notice regime regarding Internet service providers’ role in addressing online copyright infringement; protection and enforcement to prevent the circumvention of technological protection measures and the removal of rights management information; and Canada’s copyright exceptions and limitations framework.”

A close reading of the Copyright Act and the TPP IP��Chapter demonstrates that current Canadian copyright law will not need to be significantly altered to be in line with the TPP. Additionally, IP lawyer and adjunct Osgoode Law School professor Barry Sookman�� “the TPP leaves the parties with flexibility to maintain or establish exceptions”.

This flexibility is important, especially in situations where the TPP copyright sections and Canadian law differ, as these divergences could impact efforts to further develop a vibrant digital economy in Canada. If the TPP is ratified and goes into force,��Canada's digital economy will need to be designed to exploit the��flexibilities and exceptions built into the TPP to suit the needs of the Canadian public as well as the business sector.

Changes: Copyright Term Extension and TPM/RMI Enforcement

One significant divergence between Canadian law and the TPP is found in TPP��, which requires that the term of protection��“shall be not less than the life of the author and 70 years after the author’s death”.��This section would extend Canada’s current copyright term by 20 years. The only exception is found in the case of��“a sound recording in which the performance is fixed is published before the copyright expires”��,, a section of Canadian law recently changed to��“the copyright continues until the earlier of the end of 70 years after the end of the calendar year in which the first such publication occurs and the end of 100 years after the end of the calendar year in which the first fixation of the performance in a sound recording occurs”.

Canadian law would also need to change to adhere to the technological protection measures (“TPMs”) of the TPP. Existing Canadian law states no person shall circumvent TPMs or provide or market services to do the same . These anti-circumvention provisions prevent the��“manufacture, import, distribute, offer for sale or rental or provide — including by selling or renting — any technology, device or component”����designed, produced, or marketed primarily for the purpose of circumventing TPMs. Exceptions are made in the case of ensuring technological interoperability����as well as law enforcement and national security purposes��.

The TPP����reinforces and extends the provisions of the��Copyright Act��with respect to TPMs as well as rights management information (“RMI”)��. Similar to existing Canadian law, the TPP offers civil and criminal remedies and penalties for a person either��knowingly engaging in or��“having reasonable grounds to know” that they were engaging in the breaking the so-called digital locks. The Copyright Act����and the TPP IP Chapter����both provide for criminal penalties for willfully circumventing TPMs for commercial or financial gain, while excepting non-profit libraries, museums, archives, and educational institutions. In contrast to the Copyright Act, the TPP also extends these penalties to the protection of RMI��, which are information pertaining to the authorship and ownership of a work. While the TPP allows for domestically-tailored limitations to be enacted with respect to TPMs��“through a legislative, regulatory, or administrative process”��, this concession is not extended to RMIs, where legislated exceptions are limited to cases of��"law enforcement, essential security interests or other related governmental purposes, such as the performance of a statutory function"��. Restricting the ability to alter or remove RMIs for non-commercial purposes can prevent users to modify works even in accordance with fair dealing exceptions.

The Changes in Context

The TPP not requiring significant alterations to Canadian copyright law is both positive and a negative. The TPP reflects the priorities and interests of existing United States businesses and industries, restricting the ability of the Government of Canada and other parties to the Agreement to����in the future without re-negotiating the agreement itself. This will prevent the TPP parties from responding to changing technological circumstances and alternative business practices, which could help encourage future entrepreneurship and innovation or to reflect domestic priorities. The TPP establishes an international framework for copyright law and related rights based on existing corporate realities. However, the merits of these laws as written can be questioned according to whether or not they are desirable or designed for and in line with the interests of prevailing corporations and business practices.[1]

For example, the extension of copyright terms is controversial due to the fact that��longer rights periods delay the addition of content into the public domain, add burdens and costs to consumers, and help extend the transfer of wealth to rights holders at the disservice to the public good[2]. A����for New Zealand’s Ministry of Economic Development estimates consumer costs to be NZ$55million per year.

Similarly and with respect to TPMs, McGill University law professor��, now the new Parliamentary Secretary of International Trade,����that TPMs represent “a serious conceptual flaw or incoherence”, which “could overwhelm the copyright balances” (p. 327).

Lawyers and academics have����and that International Trade Minister����should look to��. Issues remain to��complicate the ratification of the TPP in the US and elsewhere. If or when the TPP comes into force, Minister Freeland and Parliamentary Secretary Lametti should be proactive and work to ensure that the Government of Canada has the domestic policy space to interpret international trade obligations and the ability to revise Canadian copyright law to foster a digital economic policy, which serves the best interests of Canadian citizens and stakeholders. The Copyright Act requires that the law is reviewed every five years��. With this in mind as well as the fast-changing realities of the digital economy, the Government of Canada should actively engage with partner Parties to amend the agreement as necessary and in accordance with the TPP's final provisions��.

The ‘Made in America’ approach of the TPP helps extend and reinforce the economic and market-based concerns of American companies and industries. Such a move threatens to fortify Canadian dependency on American copyright protected exports and limit Canadian corporations’ ability to disrupt the digital economic business practices of dominant American firms. As I have argued elsewhere, in order for Canada to continue to compete with international companies��and��develop a digital economy��that responds to and builds from the emerging realities of the 21^st��Century, the Government of Canada must be proactive and work to retain and utilize copyright and related rights flexibilities to serve the best interest of Canadians and the economic viability of innovative and domestically grown businesses and business practices.

[1] For further information, see the����from University of Ottawa��law professor Michael Geist, the Canada Research Chair in Internet and E-Commerce Law.

[2]��In a��,����finds that extending the copyright terms has an “insignificant impact on the number of works created in Canada,” may slightly increase the costs to consumers, and “will likely contribute in a small way to an outflow of royalties from Canada” (Executive summary, para. 2).

Joseph F. Turcotte is a Graduate Student Member of IPOsgoode and a PhD Candidate (ABD) in the Communication & Culture Program (Politics & Policy) at �첥��Ƶ. His research focuses on the role of knowledge, information, data, and intellectual property in the functioning of knowledge-based and digital economies. He can be reached via Twitter at��

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Since the rise – and subsequent fall – of peer-to-peer music sharing service , the recorded music industry has served as a canary in the coal mine for the digital economy and the disruptions stemming from emerging networked technologies.��Napster provided previously unrealized access to the creative labour and cultural resources of the recording industry’s collective catalogue at a rock bottom price: nothing. The “free” nature of this service – which still required often costly Internet access and��computers – , resulting in years of litigation as well as much-needed innovation in services offering legal distribution of music. Services, such as iTunes, and products, such as the iPod, moved into the uncharted terrain created by P2P��services, redefining ways that fans can access content.

In the subsequent 15 years, record labels, music publishers, recording artists as well as other industries and actors in content distribution businesses sought to in order to receive compensation for their music and creative commodities to further the creative endeavours and economic livelihood of artists, producers, and creators. However, in recent years there has been that the economic fruits of creative endeavours have been disproportionately “captured” by the technology companies that facilitate digital distribution. Artists and creators have complained that major record labels and digital distributors receive the lion’s share of compensation for the works they create.

This trend towards “economic concentration” in the hands of technology companies distributing licensed content and facilitating��transactions mirrors results of my own ongoing dissertation research, which examines how intellectual property law governs, incentivizes, and structures the emerging digital economy. For example, the so-called of the digital economy simultaneously enables new forms of capital accumulation for individuals – whether they are drivers offering rides through Uber or owners renting property through Airbnb – and the companies that facilitate, track, and leverage these transactions. However, these gains are largely concentrated at the top of the ecosystem with technologists, inventors, and investors receiving much larger compensation than the individual entrepreneurs on the ground. As my research argues, informational assets, such as trademarks, patents, and copyright supporting dominant brands, which allow companies in the technology industries to track and facilitate transactions, are becoming more lucrative than the copyright protected commodities themselves. The goods and services offered by creators and service providers feed into technological ecosystems designed and engineered to concentrate the bulk of economic gains for the benefit of the host��companies. Individual “entrepreneurs” in the digital economy must, therefore, increasingly act in hyper-competitive relationships with each other without the financial or social safety nets that existed in earlier times of technological and economic disruption.

In an era of ��that is arguably defined by increasingly higher levels of throughout society, this economic concentration emerging within the��digital economy is an area in need of attention and concern. As it was with the emergence of P2P and the distribution services following in Napster’s wake, the music industry may once again be signalling some ways forward.

In early 2015, , rebranding the streaming service as Tidal. He with a glitzy, star-studded affair featuring other recording artists including, amongst others, his megastar wife Beyoncé, Canadian rock group Arcade Fire, and pop-luminary Madonna. These recording artists are also investors and “owners” of the service, positioning Tidal as an ostensibly artist-driven distributor seeking to challenge the dominance of the music industry’s existing economic and technological order. Tidal��charges a larger monthly subscription fee (around $20 per month) than its rivals, stating that this extra money will flow more directly to the music’s creators and allow for better sound quality. The service��has subsequently been criticized on a number of price-related, PR, and marketing grounds, obscuring the owners’ stated goals of giving back to the music creation community. During a Jay Z positioned Tidal in this way, criticizing the digital incumbents and��specifically naming Spotify, Google, and Apple.

Two months later on 8 June 2015 Apple . Drawing from the vast library already on offer in its iTunes store, Apple Music will be launched and cost, at around $10 per month, half of Tidal’s fee but in line with Spotify’s. Apple����to its new service. However, Apple Music has already garnered criticisms and into whether or not Apple is using its dominant position in the digital economy to drive out competitors such as Spotify.

It should not be surprising that Apple is moving aggressively into the streaming music space. It was with music – – that the company’s resurgence began. What is surprising is that it has taken so long. Following the announcement of Apple Music, and now has 20 million paying subscribers and a total of 75 million active subscribes. As in other areas of the digital economy, a competitive position necessitates a large, active, and loyal customer base — which both Tidal and Apple Music will have to develop to compete with Spotify’s established status.

Streaming music services have come to be for the music industry. These services, as well as similar sectors in the digital economy, require licensed content in order to generate consumer uptake, however, how the licensing agreements and royalties are structured determines who are (and are not) the real "winners" of the digital economy. will be increasingly induced to negotiate agreements that serve their interests, while creators and smaller, independent labels will have to compete feverishly on the ��digital economy. Rights and compensation for creators, labels, publishers, and digital distributors will continue to be contested as these services evolve.

The goals of Tidal and Apple Music demonstrate how the digital economy continues to evolve and the economic imperatives drive its transformation. If you take their word for it (as licensing documents or rates have not been made public), Tidal is presenting a somewhat different future, where creators themselves are able to receive larger and more direct compensation for their endeavours. Apple Music, meanwhile, is looking to compete with Spotify by using a similar business model: by leveraging Apple’s already established user base and its relationships with major record labels, it hopes to shift users towards a regular, monthly subscription model and become the industry's dominant player.

How users react to and adopt these services will help to determine whose IP rights are most valuable as well as how the broader digital economy will evolve in the years to come.

Joseph F. Turcotte is an IPilogue Editor and a PhD Candidate in the Communication & Culture Program (Politics & Policy) at �첥��Ƶ.

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Politicians and members of the political press galleries each play fundamental roles in Canadian democracy. Politicians are elected or appointed to serve on behalf of the electorate and craft laws and policies ��Meanwhile, as the stewards of the historic , the members of the press are entrusted to fulfill their to hold elected representatives and civil servants to account. Contestation often simmers beneath the surface if and when these respective mandates collide. However, each group is ostensibly supposed to serve the public good and the citizens of the state.

On 8 October, on the leak of an internal Cabinet document suggesting a . This document, reported to be a presentation from the Minister of Canadian Heritage and Official Languages Shelley Glover, sought Cabinet authority “to amend the Copyright Act to create an exception for the use of ‘news’ in political advertisements without the authorization of the rights holder” in order to provide “greater certainty for ‘political actors’ who want to use copyright content in their advertisements” (). This report caused a stir as opposition and Government MPs took their respective sides while members of the press used their positions to comment on the appropriateness of the proposed exception. �Ѳ������𲹲�’s Paul Wells nicely summarized the situation, asking .

During , the Hon. Ralph Goodale (MP, Wascana, Lib.) described the move as a “scheme authorizing the swiping of television news programs for use in political attack ads” (14:24) and “expropriation without compensation. [The proposal] degrades integrity and freedom of the press” (14:26). Minister Glover, meanwhile, responded by citing Canada’s fair dealing copyright exceptions and the “public interest in ensuring that politicians are accountable for their actions and accountable for what they say in public settings. Major television networks should not have the ability to censor what can and cannot be broadcast to Canadians” (14.26).

Minister Glover’s fair dealing assertion counters Mr. Goodale’s claims of “expropriation without compensation”. While the proposed exception would make it legal for “political actors” to use “news” footage or content without compensation or consent, these uses might already be protected under existing Canadian law. As I described in an earlier , the Supreme Court of Canada (SCC) has affirmed that fair dealing exceptions are (2004 SCC 13(3a) para.48). The measure of the phrase “integral part”, however, is not entirely clear.

Under the Copyright Act, Canada’s fair dealing exceptions are restricted to the purposes of (Copyright Act, R.S.C., 1985, c. C-42. Sec.29). The SCC has affirmed that these exceptions (2004 SCC 13(3a) para.51) and, it could be argued that the user generated content amendments and exceptions in the Copyright Modernization Act (S.C. 2012, c. 20) allow for the use of copyright materials for other purposes. To date, though, political uses of copyright-protected materials via fair dealing exceptions have not been fully tested.��Importantly, the SCC finds that “fair dealing” should not appropriate content in order to compete with the material interests of the rights holder: “if the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair” (3(vi) para.59). Though this “is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair”, the fact that the use of “news” materials in political advertisements is unlikely to compete with the work of the press in reporting and selling their content suggests that fair dealing exceptions would apply in such situations.

The Government’s proposal to amend the Copyright Act for political advertising generated criticism from members of the press, as reported by��. In his weekly for the CBC, Rick Mercer equated the move to “stealing” (0:59) and mistakenly said that “there are no exceptions” (1:15) for legally using copyright-protected content. Meanwhile, Don Martin, the host of CTV’s PowerPlay, ��“any government which asserts unlimited access to the airwaves for propaganda purposes is more than into chronic copyright infringement. In some academic opinion, that could be seen as flirting with fascism”. Other media organizations were more measured in their responses.��An points out that “media don’t like to see their footage and other copyright-protected content in partisan ads, especially the negative type, since viewers might be left with the impression that a media outlet is complicit with a political party”. The Globe’s concern is balanced by the recognition that “there will be people who see it as a boon for free expression. Why shouldn’t people make unfettered use of news images and clips of public figures in order to advance their points of view and denounce those of others? Isn’t the news a public good?”

In an , , Associate Professor of Law at McGill University and a founding member of the , welcomed the idea of an exception for political discourse on the grounds that it could help spur political debate. Professor Lametti, whose describes himself as an “Aspiring Liberal Candidate in LaSalle-Émard-Verdun”, stated that “political discourse is to be valued above all other kinds of discourse, and it's up to political parties to make their claims and they use whatever elements they can use legally. And if this helps to foster political debate in Canada, then that's good.”

While it may be aimed at protecting the “public good”, the ��does seem needlessly restrictive. By prioritizing “political actors” over members of the general public, the proposed course of action deprives the public of a useful tool for engaging in political debates. During the , MP Alexandrine Latendresse (Louis-Saint-Laurent, NDP) argued that the exceptions under question appear to be “legislation that is only in [the Government’s] interest” (14:52). In response, Minister Glover cited a post from the to defend the Government’s position (14:53).��A vocal and public commentator on Canadian copyright, Professor Geist applied the SCC’s reasoning to to argue that “copyright law should not be used to stifle legitimate speech …[and]… attempts to use copyright to claim absolute rights over the use of a portion of a video clip is surely counter to basic principles of fair dealing (in Canada) or fair use”.�� His reasoning goes further, however. In a – – Professor Geist echoes Ms. Latendresse’s concerns about the narrowness of the exception under consideration, arguing that “the creation of an exception that only allows a select few to benefit is not a provision that can be defended on freedom of political speech grounds”.

Attempts to update the Copyright Act’s fair dealing exceptions should keep public interest concerns in mind. A narrowly framed exception applying to only official “political actors” does not serve the best interest of all Canadians. It would be more beneficial to include “political speech” as a separate category alongside research, private study, education, parody or satire in order to better clarify how all Canadians can use copyrighted content to express their feelings about elected officials.

Thankfully, this debate seems to have cooled for now. As Professor Geist , the proposed exception was not part of the latest . With a legislated review of copyright law scheduled for 2017, it will be important to reaffirm that Canada’s copyright law and its fair dealing exceptions are designed to serve all members of the Canadian public— and not just politicians and/or the press.

Joseph F. Turcotte is an IPilogue Editor and a PhD Candidate in the Communication & Culture Program (Politics & Policy) at �첥��Ƶ.

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As Dr. Hudson pointed out during her presentation, the��CCH��ruling is often regarded as a defining moment for clarifying the rights of users with respect to the fair dealing exceptions contained within Canadian copyright law. Writing on the tenth anniversary of the decision, legal scholar����stated that��CCH����(sic). However, Dr. Hudson’s presentation and on-going research calls into question the connections between legal and academic interpretations of the law and the effects that this “law in the books” has on the real-world activities of users themselves.

Dr. Hudson’s research is based on ongoing fieldwork and interviews conducted at leading cultural institutions in Canada as well as Australia, the United States, and the United Kingdom since 2004. This research focuses on practitioners and their experiences in relation to copyright law and user-rights exceptions, such as fair dealing and fair use. The objective of Dr. Hudson’s research is to undertake an empirical and qualitative study of users experiences with copyright law and fair dealing exceptions in order to see if, and how, Canada’s cultural organizations have altered their practices and policies in response to the��CCH��decision. Dr. Hudson’s work examines if the CCH decision has contributed to greater reliance on fair dealing principles in their everyday work.

In the Canadian context, this research has found a significant gap between the academic and judicial responses to��CCH��when compared to the responses of cultural practitioners working at Canadian cultural institutions. For example, despite the��CCH��ruling, when compared to their counterparts in the United States, practitioners at cultural institutions in Canada demonstrate an “extremely limited reliance on fair dealing” and a “muted” response to��CCH��more generally.

For Dr. Hudson, this disconnect demonstrates that drafting legislation by primarily focusing on the “law in the books” misses the contextual nuances associated with how the law is understood and used in practice. Structural, political and economic conditions may be contributing factors to this, as her research shows that in the United States there are often a greater number of centralized and specialist copyrights managers than those found in Canadian cultural institutions.

Her research also points to how other factors, including the risk preferences of individual organizations, historical and philosophical factors, institutional factors, and government or funding mandates contribute to how different cultural institutions create and update their copyright management techniques.

In order for cultural institutions in Canada, and elsewhere, to benefit from the flexibilities provided by fair dealing or fair use exceptions, Dr. Hudson argues that there needs to be a “rethinking, dismantling, and rebuilding” of existing copyright management processes and not just “attitudinal shift”. She cautions that this rebuilding needs to��be realistic about the specific social and economic contexts and circumstances that cultural institutions are implicated in, in order to propose and implement appropriate levels of change.

Dr. Hudson’s research empirically highlights many of the so-called��“chilling effects”��that dissuade users from benefitting from legal exceptions to copyright law. Unfamiliarity with the nuance of copyright law as well as the actions and campaigns of rights-holders to discourage the use of their goods may deter users from exerting the rights they have been granted under copyright law. For example, even if the use of copyrighted materials accords with fair dealing exceptions, users may still have a fear of litigation from rights-holders and avoid putting themselves in such a position. In their recent volume, , Drs. , , and , argue that this subtle discouragement has the “tendency to control and contain culture is extending into all dimensions of Canadian social life” (p. 38). ��It is important to highlight the legal aspect of these exceptions and their role in Canada’s copyright system.

The CCH ruling finds that Canada’s fair dealing exceptions are (3(a) para.48). These exceptions are designed to balance the needs of users and creators for the betterment of Canadian society at large. However, the CCH ruling also rightly notes that it is not always easy to determine when certain uses are or are not “fair” and legal. The SCC maintains that we must therefore consider the purpose (3(a)i), character (3(a)ii), amount (3(a)iii), availability of alternatives (3(a)iv), nature (3(a)v),�� and effects (3(a)vi) of each use when determining its “fairness”.

The use of fair dealing exceptions raises other questions, including how these uses may or may not detract from future creativity and the strength of Canada’s content and culture industries. This IPOsgoode Speaks Series event ended with a lively debate on the role that academics, through their legal criticism and analysis, play in the Canadian cultural sector and media and content industries. Attendees discussed whether or not scholarly activities advocating for the use of fair dealing exceptions detracted from investment in commercial activities and undercut the livelihoods of the country’s artists and creators.

Dr. Hudson’s research helps to ground and illuminate such discussions by offering empirical evidence into how users and practitioners in Canada’s cultural institutions interpret and interact with the country’s copyright laws and fair dealing exceptions.��

Joseph F. Turcotte is an IPilogue Editor and a PhD Candidate in the Communication & Culture Program (Politics & Policy) at �첥��Ƶ.

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The CBC/Radio-Canada and its precursor – the Canadian Radio Broadcasting Commission (CRBC), established by – have been a part of the country’s cultural sphere since the early 1930s. Throughout , the CBC/Radio-Canada has been envisioned as a means of protecting Canada’s cultural sovereignty, in the face of American content to the South, while helping to establish domestic, Canadian media industries.

It has been over twenty years since the CBC/Radio-Canada’s mandate was updated by Parliament. The most recent states that the CBC/Radio-Canada “should provide radio and television services incorporating a wide range of programming that informs, enlightens and entertains” (3(1)(l)) and “contribute to shared national consciousness and identity” (3(1)(m.vi). In the intervening years, the CBC/Radio-Canada has increasingly moved into digital and Internet-based spheres in order to reach Canadians via the media of their choice.

The contemporary media and cultural environments must be adapted to in order to reach and connect Canadians from coast to coast to coast. CBC/Radio-Canada President and CEO describes the current situation as . Mr. Lacroix envisions the future of the CBC/Radio-Canada as (p. 1). With some creative thinking, the digital environments that the “A Space for All of Us” strategy seeks to capitalize upon can help foster these ‘public spaces’ and contribute to the stewardship and production of pluralistic forms of Canadian cultural identity.

In a recent , Canadian ex-pat Cory Doctorow argues that the CBC/Radio-Canada should look to the British Broadcasting Corporation’s (BBC) short-lived as a means of opening up the Corporation’s archive of publicly funded cultural goods to the people of Canada so that they can combine and create from these public resources. For Doctorow, “there's nothing more ‘digital first’ than ensuring that the most common online activities – copying, sharing, and remixing – are built into the nation's digital heritage”. The that Doctorow describes has recently been given legal credence through the (2012).

The Copyright Modernization Act provides legal circumstances where the creation of��. In particular, the use of these materials must be solely non-commercial in purpose, the source of the materials must be attributed (where possible), is not derived from already infringing materials, and must not have a “substantial adverse effect, financial or otherwise” on the existing rights holder and/or the existing work.

As a new part of legislation, the specifics of the “Non-Commercial User-Generated Content” provision (29.21) – or the – have yet to be tried and defined via the courts. However, as the country’s public broadcaster, the CBC/Radio-Canada could be on the vanguard of this emerging cultural space by providing its archival materials to the public for their digital use and repurposing. Allowing Canadians to access and ‘remix’ publicly funded cultural resources in new and innovative ways could help create a CBC/Radio-Canada ‘space for all of us’ that reflects the dynamism of Canadian culture.

Of course, establishing such an archive is no small task and the CBC/Radio-Canada will need to exert human and financial resources to make this a reality. As Drs. , , and state in , cultural works often entail the use of overlapping works – such as the music contained in a soundtrack to a television program – that are protected and governed by embedded intellectual property rights (p. 31). The CBC/Radio-Canada will, therefore, need to ensure that the works available in its archives do not run afoul of the legal rights of other creators and contributors. These processes require technological and human infrastructure that may strain the Corporation’s already .

However, by more clearly linking and contributing to the daily and cultural lives of Canadians as a source of digital cultural resources, the CBC/Radio-Canada will have yet another means of defending its Parliamentary appropriation. As , Assistant Professor at the University of Windsor, argues in in Dynamic Fair Dealing, “the CBC[/RadioCanada] has an institutional history of taking risks, innovating, and connecting with Canadians in new ways. … given its mandate, funding source, and history, the CBC[/RadioCanada] is well equipped to set the bar for Canadian broadcasting” (p. 96).

Somewhat insulated from the commercial pressures facing Canada’s private broadcasters, the CBC/Radio-Canada has the ability to be creative and innovative as the Corporation works to fulfill its mandate. Opening up the public broadcaster’s archive to Canadians as a source of cultural resources may be challenging. However, the opportunities to further contribute to the country’s cultural heritage and facilitate a dynamic cultural future for Canadians, as well as the Corporation itself, is a space that the CBC/Radio-Canada should work to create.

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.

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As , partner with McCarthy Tétrault in the Toronto office and a Member of the IPOsgoode Advisory Board, , “Patent law is based upon the social and economic rationale of balancing encouraging innovation and the avoidance of monopolies which can stifle competition.” In general, these principles have been extended into the realm of software as a means of rewarding and protecting the fruits of the inventor's labour in the hopes of stimulating and fostering further advances and discoveries through public disclosure mechanisms. Patents, and software patents, are, therefore key elements of the contemporary economic system.

However, while software may be generally similar to other types of inventions, the nature of software industries and software itself make the application of existing patent laws somewhat problematic. Economist and former Non-Resident Fellow at the Brookings Institute argues, in , that there are three dissimilarities that must be recognized when dealing with software: 1) detailed descriptions of a software often constitute the program itself, making it hard to distinguish between ‘ideas’ and ‘implementation’; 2) software are pieces of mathematics, which courts agree are not patentable; and, 3) software is written and produced by vast categories of users and programmers, making restrictions to competition problematic (at pp. 4-5).

These three issues entail disproportionate levels of competitive and monopolistic advantage to whoever acquires a patent right first. For example, a patent holder is able to extract burdensome rents from a competitor who wishes to build off of the works of others or create interoperable technologies based on previously existing patented discoveries.

In the SCOTUS was tasked with determining whether the patents at issue in the case, held by Alice Corps', were eligible for patent protection or whether they were simply ‘abstract ideas’.

The case centered around a computerized process for limiting “settlement risk” during financial exchanges between two parties by employing a computer system as a third-party intermediary. This 'third-party' creates and tracks digital account ledgers that mirror the balances that the exchanging parties hold in their ‘real-world’ accounts in order to determine whether or not a given transaction can be processed and supported by the parties' assets. As states, "In sum, the patents in suit claim (1) the foregoing method for exchanging obligations (the method claims), (2) a computer system configured to carry out the method for exchanging obligations (the system claims), and (3) a computer-readable medium containing program code for performing the method of exchanging obligations (the media claims)".

In 2007, CLS Bank filed suit against Alice Corps in the hopes of obtaining a declaratory judgment that the patents at issue��were invalid and, therefore, not infringed by CLS Bank’s use of a similar business practice. Following a SCOTUS decision in 2010, (561 US 593), the parties filed cross-motions for summary judgments on whether the patents were eligible under the .

Section 101 of the Patent Act defines patents as eligible for: “whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title” (). However, since 1972, the SCOTUS has held that "abstract intellectual concepts are not patentable” (, 409 U. S. 63, 67). As recently as 2011, in , the Court has upheld this principle out of concern that “patent law not inhibit further discovery by improperly tying up the future use of laws of nature” (Mayo, 566 US 16).

Using the two-part test set out in Mayo, the Court found that “because petitioner’s system and media claims add nothing of substance to the underlying abstract idea, we hold that they too are patent ineligible under §101” (Alice Corp., 573 US 17). In the concurring statement Justice Sotomayor, joined with Justices Gisburg and Breyer, agreed that “any claim that merely describes a method of doing business does not qualify as a ‘process’ under §101’” (Alice Corp., 573 US 1). The Court found that “there is no meaningful distinction between the concept of risk hedging in Bilski and the concept of intermediated settlement at issue here. Both are squarely within the realm of ‘abstract ideas’ as we have used that term” (Alice Corp., 573 US 10).

The decision in is careful not to extend this principle too far, which would run the risk of making all software patents ineligible. The Court recognizes that “an invention is not rendered ineligible for patent simply because it involves an abstract concept” (Alice Corp., 573 US 6). Applications of abstract ideas that are “to a new and useful end” (Alice Corp., 573 US 6) remain eligible for patent protection.

The SCOTUS decision in this case represents another step in the evolution of American intellectual property laws, in commercial contexts, in adapting to new technological and social circumstances. The Court has not defined what types of software and business practices are eligible for patent protection. Instead, it has reaffirmed long-standing principles about what types are not: those that monopolize the building blocks of human knowledge and invention, such as abstract ideas, and prevent further innovation.

In doing so, the decision in is another precedent in favour of competitive markets and the avoidance of the deleterious affects of excessive rent-seeking by patent holders that make overly broad claims on the tools necessary for human development and innovative creations.

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.

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The recent (Congress 2014) and the (CPSA 2014) highlighted some of the issues that will likely occupy the debates between interested stakeholders. As part of Congress 2014, three debates were held as part of the , which looked at how copyright law works in academic and social contexts. At the CPSA 2014, the (p. 66) analyzed the recent past and coming future of Canadian copyright law.

This panel included , , and , who presented different perspectives on the future of copyright generally, and specifically in Canada. Alternative and opposing responses to the historic and contemporary copyright environment��were also presented. [Ed. Note: the author of this post served as the discussant on this panel]

In his paper, which draws upon research done for his book , Dr. Haggart used an historical institutionalist perspective to describe the processes and activism behind recent reforms to Canadian copyright law. His paper demonstrates how external shocks – emanating from technological changes that��foreground processes of relational creativity and attendant public interest and advocacy – disrupted the pre-2000 status quo of Canadian copyright law. In particular, he argues that the and other actors affected the ideas and institutions of Canadian copyright and worked alongside the SCC’s (re)assertion of “user's rights” to make them a central component of Canadian copyright law. These ideas were eventually taken up by the Copyright Modernization Act.

Mr. Ribaric’s paper on the challenges facing academic librarians in the current digital and copyright environment demonstrated some of the problems associated with relying on fair dealing exceptions as��the primary means for accessing copyrighted materials for purposes that are designed to more explicitly benefit the public good. Mr. Ribaric describes a “chilling effect”, which occurs due to the uncertainty associated with the vagaries of copyright law and permissible uses as well as the fear of being the subject of costly litigation—. Mr. Ribaric’s paper also highlighted one of the less obvious trends occurring as technological, economic, legal, social, political, and cultural ideas as well as institutions change. During negotiations with university libraries, Mr. Ribaric discusses how requested that the institutions “monitor and determine (through electronic eavesdropping) if any copyright use transgressions were occurring ”. This represents an instance where the ‘responsibilities’ and needs of private and corporate actors are downloaded onto public institutions with limited resources—as well as mandates that are opposed to such actions.

The concerns and challenges faced by academic librarians echoes the sentiments and common values of the “non-commercial artistic digital communities” that Zeilinger describes in his paper—as well as in his edited volume , which he edited with Rosemary Coombe and Darren Wershler. Zeilinger advances a “moral economy” theoretical framework as a means of understanding the discourses and values of digital communities with respect to copyright debates. Zeilinger’s discussion of digital communities – as moral economies – recognizes the existence of pluralistic needs and interests of various groups, communities, and users. For example, digital artists often use existing materials for creative and non-commercial purposes. The so-called added by the Copyright Modernization Act can then be seen as an attempt to give legal protection to such actions.

However, relying on a “user rights” framework dependent on “fair dealing” exceptions helps perpetuate a dominant creator versus user discourse, which undermines public and private interactions that are not necessarily always opposed, and which copyright law has historically sought to calibrate. The citizens of Canada have pluralistic interests and values that transcend the mere access to and use of informational goods, which should be accounted for moving forward. This CPSA 2014 panel demonstrates that doing so will require sustained attention and debate in the coming years.

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.

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