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  • – 2021-09-20 –

    Titled Innovation and Balance, CIPPIC's submission to the Government of Canada consultation on Copyright and Artificial Intelligence and IoT offers a set of cautious and balanced recommendations for maintaining Canada's copyright framework in the face of new technologies. CIPPIC's articling students Yuan Stevens and Liwah Keller, supported by a team of CIPPIC interns, took the lead in drafting CIPPIC's submissions.

  • – 2021-07-30 –

    The Supreme Court of Canada today released its decision in York University v. Access Copyright, 2021 SCC 32.  The case addressed two issues: whether Access Copyright’s Copyright Board tariff is mandatory, and whether copying by York pursuant to its Guidelines constitutes fair dealing.  Both courts below had ruled the tariff not mandatory and the Guidelines unfair.

    In a unanimous decision penned by Justice Abella (in her last case on the bench), the Court found that the tariff was not mandatory and so was unenforceable against York, and in light of the absence of any real legal issue between York and Access Copyright, that it would be inappropriate to decide the fair dealing issue. 

    However, the Court cautioned that this result should not “should not be construed as endorsing the reasoning of” the courts below, citing “some significant jurisprudential problems with those aspects of their judgments that warrant comment.”  The Court went on to “correct” those “errors” [para. 87-88]

    Highlights of that analysis include:

  • – 2021-04-26 –

    supreme court of canada
    "supreme court of canada" by jacob earl is licensed under CC BY-NC-ND 2.0

    CIPPIC has filed its intervener factum in the Supreme Court in York University v Access Copyright, SCC No, 39222, an important case addressing the scope of educational fair dealing. CIPPIC argues that a purposive interpretation of fair dealing that embodies Charter values:/p>

    • recognizes that copyright is right to exclude, not simply be paid;
    • identifies the relevant perspective as that of the ultimate user;
    • recognizes universities’ unique role as cradles of authorship and innovation; 
    • appreciates educational institutions' role in society where truth is contested; and
    • appreciates that intermediaries and commercial actors are aspects of marketplaces that facilitate the socially beneficial exercise of both owners’ and users’ rights.

    David Fewer acted for CIPPIC.  CIPPIC was supported by a broad team of students, including articling student Bo Kruk and interns Sarah Crothers, Tina Dekker, Matthew Akl, and research assistant Courtney Wong.

    The hearing of this appeal is currently set for May 21, 2021.

  • – 2021-04-21 –

    In yet another of a long string of missed opportunities and short-sighted half measures, the CRTC has announced its regulatory solution for Canada's chronic cell phone market debacle. In adopting a regime that replicates, rather than overcomes, the most problematic features of Canada’s mobile landscape, the Commission’s regulatory solution offers slim hopes for Canada’s cell phone market.

    As anyone with a phone plan is aware, world-high mobile prices have plagued Canadians for years. Yet Canada’s dominant national providers (TELUS, Bell and Rogers) have persistently denied this reality through lobbying efforts, regulatory filings, and even active misdirection. It is therefore encouraging that the CRTC’s recent decision finally and definitively confirms the nature and scope of Canada’s pricing woes.

    The decision also correctly identifies several endemic problems in mobile competition that have caused this state of affairs: market entry is difficult, as upfront costs are high, spectrum is inherently limited, and dominant providers enjoy a substantial head start. As a result of these conditions, several stuttering attempts over the years to instill price discipline from new competitors have failed to make any meaningful headway into the national providers’ dominant market presence and globally high revenues. In response, the Commission adopts a two-tiered regime. First, in an attempt to provide more competition, it obligates dominant providers to let competitors operate 'virtually', without the need to build their own networks (the MVNO mandate). Second, to provide some relief for Canadians who simply cannot afford mobile data connectivity, dominant providers will be obligated to offer lower cost plans.

    Each component promises, in theory, to address long-standing problems in Canada's cell phone landscape, but both fall short in the implementation. The MVNO regime is crafted narrowly, and is only available to a small number of existing comptitors. The low-cost plans imposed by the CRTC will help some customers in some regions, but mostly replicate plans already offered by some regional competitors, and do so on outdated 3G technology.

    Cross-posted & paired with a post by Erin Knight at Image Source: Georg Arthur Pfleuger, @knurpselknie, "Facetime between mother and son", Unsplash, June 20, 2020

  • – 2021-04-01 –

    CIPPIC’s submission (The Public's Domain) to the government consultation on copyright term extension places the public domain at the heart of Canada’s copyright system.  Given the costs of term extension to Canada’s copyright ecosystem, CIPPIC argues for a form of term extension that offers something back in the form of a registry of works.  Copyright is rare among forms of intellectual property in that protection arises automatically without the need to declare one’s rights.  This means that copyright lacks a functional registry akin to the Patent Registry or the Trademarks Registry.  A Copyright Registry would provide Canadians with greater notice of both protected content and content soon to join the public domain.

    CIPPIC articling student Bo Kruk co-authored the submission with David Fewer and with research assistance from CIPPIC interne Nadine Eltawdy.

  • – 2021-01-27 –

    Today, CIPPIC presented its intervention in a hearing before the Federal Court as part of a reference launched by the Office of the Privacy Commissioner of Canada. At issue is the degree to which PIPEDA - Canada's federal privacy law - applies to activities of commercial search engines.

    As noted in our written submissions:

    1. PIPEDA applies to commercial search engines.

    2. In order to determine whether personal information is collected, used or disclosed in the course of commercial activities under s. 4(1)(a) of PIPEDA, the Court must evaluate the relationship between that information and the organization’s business model. The commercial value of most Internet companies and social media platforms is derived by providing a free service to attract user’s time, attention and personal information, which is then monetized through advertising, tracking and profiling. A restrictive definition of “commercial activity” which includes nothing but discrete, revenue-generating interactions ignores precisely the kinds of business models that drive the digital economy and that PIPEDA was intended to regulate.

    3. Whether the collection, use or disclosure of personal information is undertaken for exclusively “journalistic” purposes must be determined with reference to Parliament’s intent and the constitutional rationale for the exclusion set out in s. 4(2)(c) of PIPEDA. This analysis must account for the particular role played by a free, adversarial and independent press in a democratic society—through newsgathering, source protection, the exercise of professional discipline and editorial judgement, and a commitment to communication on matters of public interest. The fact that an organization happens to permit the dissemination or discovery of journalistic content through its platform is not sufficient to immunize its activities from scrutiny under PIPEDA as a whole. The Act and the Charter provide other safeguards in this respect.

    4. The remedy sought by the Complainant has obvious implications for section 2(b) Charter rights and a conclusion that PIPEDA applies to commercial search engines may eventually raise other constitutional and policy questions. However, the rules of statutory interpretation do not permit the Court to preempt these debates by distorting the meaning of the Act’s application clause to exclude certain organizations from Canadian privacy regulation altogether. Appropriate and properly tailored constitutional remedies are available in the event that these concerns are well-founded in law and actually materialize.

    The reference is currently scheduled to be heard January 26-27. CIPPIC is being represented by Me Lex Gill from Trudel, Johnstone & Lespérance.

    Image Source: Learntek, "big-data-analytics", April 23, 2018, Flickr, CC-0 1.0

  • – 2020-12-09 –

    Last week, CIPPIC testified before the House INDU committee, outlining steps that could be taken to move Canada toward universal adoption of fast and reliable Internet. Substantial provincial and federal resources are being leveraged to connect households across Canada. Yet full and universal Internet adoption is an ambitious goal, one that will require a coordinated national effort and strategic mobilization of cross-cutting resources.

    Nor can affordability be overlooked — too many Canadians are priced out of connectivity, even as access to the Internet becomes an increasingly essential pre-requisite to participation in modern life.

    In a landmark 2016 decision, the CRTC adopted 50/10 unlimited connectivity as a long term objective for universal home Internet in Canada. As of 2019, however, only 45.6% of rural households have access to broadband Internet (which the CRTC defines as a reliable 50 mbps download and 10 mbps upload connection & unlimited data), and of these close to 60% of these are dependent on less reliable wireless technologies. Particularly troubling, only 35% of first nations reservations have access to broadband.

    Given Canada's constitutional and regulatory makeup, no single body can fully control connectivity efforts. However, entrusting either the CRTC or ISED to develop a comprehensive national strategy and adopt a loose but formal coordination role could drive a more integrated approach that substantially increases the efficiency of current funding allocation.

    UPDATE: INDU's report in tihs study was issued June 22, 2021: "Affordability and Accessibility of Telecommunications Services in Canada: Encouraging Competition to (Finally) Bridge the Digital Divide", June 2021.

    Image source: transCam, "Internet", October 6, 2005, Flickr, CC-BY-NC-ND 2.0

  • – 2020-10-07 –

    Facial recognition is a highly controversial technology that is transforming border crossings around the world by fuelling an unprecedented level of surveillance & too-often racially biased automated processing of travellers. In a report released today [overview], CIPPIC documents the rapid adoption of facial recognition technologies at borders while outlining its intrusive potential and propensity for being repurposed. Facial recognition can surreptitiously identify individuals from a distance and from any live or historical image, posing a serious threat to real-world and online anonymity. Facial recognition is becoming embedded in all aspects of border crossings driven by an attempt to process travellers more efficiently and securely. But members of marginalized communities are often most heavily impacted when the technology goes awry, as some demographic groups experience far higher error rates than the general population due to lingering biases. Around the world, facial recognition systems whose creation was justified in the border control context have been repurposed for law enforcement, national security agencies, traffic safety officials, administrative agencies and even the private sector.

    Our current legal framework is simply too outdated and lacking in clear safeguards to mitigate the more problematic elements of facial recognition systems. The report therefore recommends a moratorium on the adoption of facial recognition systems at our borders, and a publicly transparent reassessment of existing systems in Canada.

    The report, entitled "Facial Recognition at a Crossroads: Transformation at our Borders & Beyond", was finalized with assistance from Rachel Kuchma, William Burke, Ryan Mosoff and Emily Kim. An accompanying Overview document excerpts key aspects of the core report.

    Image credit: Josef Čapek, Hlava (1913), Wikimedia Commons.

  • – 2020-07-17 –

    CIPPIC and OpenMedia filed comments calling on the CRTC to adopt robust regulatory measures necessary to reverse Canada's broken mobile ecosystem. Canadian mobile service providers such as Bell and TELUS extract some of the highest revenues in the world, and the correspondingly high retail costs have prevented Canadians from realizing the full potential of mobile connectivity.

    As our submissions to this proceeding painstakingly document, Canada's mobile retail costs are prohibitively high by global comparative standards. Canadians pay more per GB of mobile data than almost any other OECD or EU country. The amount of revenues Canadian mobile providers extracts from each customer is also world leading, and this impacts heavily on Canadians, who do not make full use of their mobile devices or are priced out of mobile connectivity altogether. On that front, Canada has fewer mobile subscribers on a per capita basis than the vast majority of OECD countries, and Canadians use barely one half the amount of mobile data as the average OECD country. Canada continues to fall further behind in terms of both adoption and data usage.

    These trends have been indicative of the Canadian mobile market for years, and a robust regulatory response is required. In our final comments to this proceeding, we call upon the CRTC to mandate a wholesale regime that would allow Virtual Network Operators (MVNOs) to provide mobile connectivity over incumbent service providers networks. This will allow for an infusion of competition, while ensuring that incumbent providers are well compensated for the use of their networks. CIPPIC and OpenMedia also called on the Commission to mandate affordable mobile plans with at least 4 GB of monthly data.

    Image Source: Falcon Photography, "The New Golden Xperia Z5", Flickr, March 15, 2016, CC-BY 2.0

  • – 2020-07-08 –

    USMCA Report Cover CIPPIC and the Harvard Cyberlaw Clinic are excited to release a report today on the impact of the new United States-Mexico-Canada Agreement (USMCA) on intermediary liability laws in North America. Click here to download the report.

    Article 19.17 of the new USMCA contains provisions modeled on Section 230 of the U.S. Communications Decency Act that protect platforms like Facebook and Google from being held liable for harmful or unlawful content posted by their users. While the liability shield the USMCA provides is quite similar to CDA § 230, the provisions differ in that the USMCA permits courts to order injunctions requiring platforms to take down content.

    Given the ongoing debate in the U.S. regarding the future of CDA § 230, our report suggests that the USMCA’s approach to intermediary liability could serve as a model for amending CDA § 230, given the balance the USMCA strikes between addressing online harms and protecting platforms.

    Our report also outlines how current Canadian intermediary liability laws are inconsistent with the USMCA, as are some recent proposals advanced in Canada to hold social media companies liable for the content they host. Correspondingly, we recommend that careful consideration be given by federal and provincial parliamentarians to introducing legislation to align Canadian law with the USMCA, and that clarifies whether Canadian and third-country intermediaries are entitled to the protections provided by the USMCA.

    Our report is the product of an unprecedented cross-border collaboration between technology law clinics in Canada and the United States on a legal issue of significance to citizens of both countries. We hope to expand the coverage of our report to include Mexico in the near future.