Law Bytes

Law Bytes

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Law Bytes episodes

  • Episode 31: Is Canadian Media in a Financial Crisis? - Marc Edge With a Different Take on What the Data Says
    Is the Canadian media in a state of financial crisis? Stories on newspaper closures and journalist layoffs have become frustratingly commonplace in recent years, leading to increasingly vocal calls for policy reforms or public funding measures. But Marc Edge, a longtime journalist, editor, and professor at universities around the world, has studied the state of the industry for years and offers a different take. While he is quick to point out the crisis of journalism given cutbacks, he argues that a journalism crisis is not the same as a media crisis. He joins the podcast this week to discuss the historical development of the Canadian media and what the data tells us about the current situation in Canada.
    The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.
    Show Notes:
    Marc Edge website
    Credits:
    House of Commons, May 31, 2019
    25 min
  • Episode 31: Is Canadian Media in a Financial Crisis? - Marc Edge With a Different Take on What the Data Says

    Is the Canadian media in a state of financial crisis? Stories on newspaper closures and journalist layoffs have become frustratingly commonplace in recent years, leading to increasingly vocal calls for policy reforms or public funding measures. But Marc Edge, a longtime journalist, editor, and professor at universities around the world, has studied the state of the industry for years and offers a different take. While he is quick to point out the crisis of journalism given cutbacks, he argues that a journalism crisis is not the same as a media crisis. He joins the podcast this week to discuss the historical development of the Canadian media and what the data tells us about the current situation in Canada.

    The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

    Show Notes:

    Marc Edge website

    Credits:

    House of Commons, May 31, 2019

    25 min
  • Episode 30: "It's Only Going to Get More Important" - Amanda Wakaruk and Jeremy deBeer on Crown Copyright in Canada
    The Canadian copyright review conducted earlier this year heard evidence on a remarkably broad range of issues. One issue that seemed to take committee members by surprise was crown copyright, which captured considerable attention and became the subject of two supplemental opinions from the Conservative and NDP members as well as the basis for a private members bill from NDP MP Brian Masse. Why all the interest in crown copyright?
    This week’s Lawbytes podcast digs into crown copyright with two guests. First, Amanda Wakaruk, a copyright librarian at the University of Alberta and one of the country’s leading advocates on the issue joins me to explain the concept of crown copyright and why she thinks it needs to be abolished. I’m then joined by my colleague Professor Jeremy DeBeer to discuss the recent Supreme Court of Canada decision on Keatley Surveying v. Teranet, which was on the first opportunities for Canada’s highest court to grapple with the scope and implications of crown copyright.
    The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.
    Show Notes:
    Copyright Act
    Standing Committee on Industry, Science and Technology Copyright Review
    Library and Archival Community Letter on Crown Copyright
    Keatley Surveying v. Teranet
    Credits:
    Standing Committee on Industry, Science and Technology, May 30, 2019
    House of Commons, June 3, 2019
    Transcript:
    45 min
  • Episode 30: "It's Only Going to Get More Important" - Amanda Wakaruk and Jeremy deBeer on Crown Copyright in Canada

    The Canadian copyright review conducted earlier this year heard evidence on a remarkably broad range of issues. One issue that seemed to take committee members by surprise was crown copyright, which captured considerable attention and became the subject of two supplemental opinions from the Conservative and NDP members as well as the basis for a private members bill from NDP MP Brian Masse. Why all the interest in crown copyright?

    This week’s Lawbytes podcast digs into crown copyright with two guests. First, Amanda Wakaruk, a copyright librarian at the University of Alberta and one of the country’s leading advocates on the issue joins me to explain the concept of crown copyright and why she thinks it needs to be abolished. I’m then joined by my colleague Professor Jeremy DeBeer to discuss the recent Supreme Court of Canada decision on Keatley Surveying v. Teranet, which was on the first opportunities for Canada’s highest court to grapple with the scope and implications of crown copyright.

    The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

    Show Notes:

    Copyright Act

    Standing Committee on Industry, Science and Technology Copyright Review
    Library and Archival Community Letter on Crown Copyright
    Keatley Surveying v. Teranet

    Credits:

    Standing Committee on Industry, Science and Technology, May 30, 2019

    House of Commons, June 3, 2019

    Transcript:

    LawBytes Podcast – Episode 30 transcript powered by Sonix—the best audio to text transcription service

    LawBytes Podcast – Episode 30 was automatically transcribed by Sonix with the latest audio-to-text algorithms. This transcript may contain errors. Sonix is the best way to convert your audio to text in 2019.

    Michael Geist:

    This is Law Bytes, a podcast with Michael Geist.

    Brian Masse:

    I’m asking you about a specific crown copyright, and that is the protection and prohibited use of government documents, research materials. And I’m asking for your position on that. I don’t need the deputy minister’s position on that. It’s something we’ve studied extensively in this house here. It’s a well-known fact that Canada has a unique system of protection. And I’m I don’t want to know, you know, whether or not you support the status quo of Crown copyright. I think it’s a fair question.

    Kirsty Duncan:

    Thank you, Brian. Good luck. It’s an issue that’s raised with us all the time. We’re aware of the issue and we’re revealing it.

    Dan Albas:

    We believe the Crown copyright should be completely abolished. That view is shared by many witnesses and unfortunately recommendations in this report don’t go far enough. Content created by taxpayer money should belong to all Canadians, and governments should not be able to enforce copyright on those works.

    Michael Geist:

    The Canadian copyright review conducted earlier this year heard evidence on a remarkably broad range of issues. Probably the most comprehensive review of Canadian copyright law in decades. One issue that seemed to take committee members by surprise was Crown Copyright, which captured considerable attention and became the subject of two supplemental opinions from the Conservative and NDP members, as well as the basis for a private member’s bill from NDP MP Brian Masse. Why all the interest in Crown copyright? This week’s Law Bytes podcast digs into Crown Copyright with two guests. First, Amanda Wakaruk, a copyright librarian at the University of Alberta and one of the country’s leading advocates on the issue joins me to explain the concept and why she thinks it needs to be abolished. I’m then joined by my colleague, Professor Jeremy de Beer, to discuss the recent Supreme Court of Canada decision of Keatley Surveying vs. Teranet, which was one of the first opportunities for Canada’s highest court to grapple with the scope and implications of Crown copyright.

    Michael Geist:

    Amanda, welcome to the podcast.

    Amanda Wakaruk:

    Thank you. Thanks for having me.

    Michael Geist:

    So we’re going to talk about Crown copyright and I guess the starting point for people that don’t think a lot about these issues is what is Crown copyright.

    Amanda Wakaruk:

    Yeah. Thanks for making space for this topic. Section 12 of the Copyright Act provides the government with copyright control over any work that is prepared or published under the direction or control of Her Majesty. So that provision basically gives the government the exclusive legal right to reproduce, publish or sell a work that was created to support in some way the governance of our country.

    Michael Geist:

    So it’s giving the government control over the works that it creates. How long does this crown copyright last? So how long does the government get rights in its own works?

    Amanda Wakaruk:

    Yeah, if the work is published and I’m assuming the definition is the one used in the Copyright Act which is made available to the public if the work is published. The term extends for 50 years past the year of publication. However, interestingly, if the work is unpublished or put another way not originally intended for distribution to the public, the term is perpetual and and talk to any archivist and they will tell you that there are millions of unpublished government works sitting in archives across this country that are not being digitized because of fear of infringement.

    Michael Geist:

    That’s interesting. So the government that the term effectively unlimited if it if it’s not published, having a real impact almost immediately on archival access to some of those materials. I know this is a somewhat controversial issue. We’ve got a case for the Supreme Court of Canada that looks at it. But just how broad are we talking about in terms of government works for coverage of these in terms of its coverage?

    Amanda Wakaruk:

    Well, there’s one of the things that came out during the Copyright Act review and the witness testimony and submissions was that there doesn’t seem to be a strong understanding or agreement about about that scope. There are some claims that it may or may not protect primary law, although we have a reproduction of federal law order. So perhaps it does. I’m not an expert on those points of law, but I can tell you that it certainly covers anything disseminated by the executive branch and the legislative branch materials. So we’re talking about House of Commons reports. We’re talking about the debates of parliament. We’re talking about reports. We’re talking about royal commission transcripts. The things that we need to have access to do have a functioning democracy.

    Michael Geist:

    Sure. You’ve mentioned several federal institutions. Does this cover provincial governments as well?

    Amanda Wakaruk:

    They’re the copyright law. And Canada’s, as you know and I’m sure many of your listeners know, is under federal jurisdiction. But the enforcement of Crown copyright can be done at either the federal or the provincial level. So the provinces also have the exclusive right to reproduce, produce or sell works published or prepared at that level.

    Michael Geist:

    Ok, so we’re talking about a really broad range, not just at the federal level, but at the provincial level as well. So how does the Canadian approach compare with other countries?

    Amanda Wakaruk:

    You know, there isn’t a really good comparative study that we have access to that that tells us this in any definitive way, just from, you know, the little bit of research I’ve done on this topic. I think are our biggest trading partner. The U.S. is is the one to compare to really. They saw fit to remove any copyright protection for federal works away back in 1895. So from my perspective, we’re about a hundred and twenty years behind the U.S. on this particular issue. And as you well know and have talked about on the podcast, Canada is lining up some of our Copyright Act provisions and other areas with the U.S. policy. So we’re way out of step with our major trading partner there.

    Michael Geist:

    Are there open licensing alternatives to government works that that seek to ensure that there’s some amount of access?

    Amanda Wakaruk:

    I think I need to talk instead about the more than 40 years of requests to change the system. You know, it doesn’t take much work to stumble across things like a 1981 report titled Crown Copyright in Canada, drafted in 1981, as I said, by a government employee. We have a House of Commons committee subcommittee reports from the mid-eighties and white papers asking for the abolition of Crown Copyright, the abolishment of Crown copyright it. It goes on and on. And you know, in 2013, that Crown Copyright Licensing Unit was actually closed. That was a very useful unit. It gave us as librarians and as citizens and a place where we could ask for permission to use these works. But that was closed in 2013 and confusion sort of ramped up. About the same time the government did bring in an open government license. But by 2016, I want to say December 2016, only 53 publications had actually been assigned an open government license. The focus was really on data. Today, I think we’re closer to eight hundred, but that’s eight hundred publications that have been assigned an actual open government license, which is not without its own flaws. Separately, and I think the government was well intentioned here that they tried to bring in terms of use that would hopefully make it clear that people could re-use content and that was supposed to be adopted across all government websites that at least for the departments that fell under the Treasury board policy package. But but it wasn’t consistent. It’s not consistent to this day. It excludes commercial uses. And as you’ve already pointed out, our commercial publishers are a very important partner in the reproduction and dissemination of government information, but the terms of use on government websites excludes them.

    Amanda Wakaruk:

    And actually, if I can really go off off on a tangent here, there is a very recent and very important government report. The murdered and missing indigenous women and girls report that was recently distributed on the open web, which is fantastic. But if you look at it from a copyright perspective, there’s no information about re-use at all on that document. And it I was told someone reached out to me and told me that there was a publisher who’d actually approached the government to ask about copyright and the ability to publish and sell copies of the work because the demand for the print was so great. And those talks broke down. Now, I don’t have the details of that, but if if those works were in the public domain by default, as they are in the US, this wouldn’t be an issue. So, I mean, there are ways that the government has as shown intention to open things up. But unfortunately, the application of those policies, the implementation of those policies hasn’t resulted in real change on the ground from my perspective.

    Michael Geist:

    Why don’t we talk a bit about that? I mean, this is certainly the that that the decades of reports and concerns around these issues I think is striking as a set against the relative lack of action other than some of these open licenses that, as you say, have had relatively modest take up to date and has some impact. Can you tell me a bit more about why this is a problem? You know, in a sense, why should should people care. Do these open licenses or the existence of Crown copyright create significant restrictions to use, re-use either for the public, for archivists or for others?

    Amanda Wakaruk:

    Yeah, that’s that’s there are so many examples that came forth during the Copyright Act review. So I would encourage people to dig into that. I’ve also provided a list of the people who spoke to who gave examples on my Web site. Just, you know, there’s a redirect, fixed crowd copyright dot-ca. But to answer your question directly, there have been so many times where just as an academic librarian, I’ve had professors, students ask, you know, what happened to this link? Why is it dead? Things disappeared from the government Web site all the time and that content is not necessarily captured or reproduced. Did you give you a very recent and very important example? In 2012, the government saw fit to implement a web renewal initiative that was aimed at cleaning up the government Web sites. So I think the the the press release said, you know, consolidate the government websites from 15 hundred down to six. So that in itself doesn’t sound like a bad thing, except the work had already started. And librarians scrambling to try and capture this content were often hitting robot files, robotics dot-txt files with their web crawlers. And, you know, as as good responsible employees of universities, they would ask permission from the rights holder to make copies of that web content before it disappeared. And we’re sometimes told, yeah, you can make those copies. Actually, the common response was not a response at all. Nothing. You didn’t hear anything. And so that stops the work. But sometimes they were told no. And you cannot reproduce and make those works available. And that that’s a problem that resulted in pretty massive losses of government works. And I know many people will say, well, what about the Internet Archive? What about Library and Archives Canada and Library? Archives Canada at this point in time was itself going through massive reductions. I don’t know how many people realize that the head of the Library Archives Canada is a political appointment and they of course are sensitive to the political direction the government in power or the party in power is taking. So LAC was not in a position to jump in and help, but in that way at that time. And the Internet Archive Web crawling activities are incredibly important. And I still point, you know, journalists, students to those resources, but they’re also superficial. The kind of web crawling that librarians were trying to do is much deeper. We have access to quality assurance procedures that the Internet Archives Archive at a fee based service provides so we can make sure that those pdfs have are four pages down or actually getting picked up and preserved. So there was a lot of cultural loss, a lot of losses of materials, you know, everything from ministerial speeches, which is some of the more shocking losses to educational materials. I had not to point fingers to directly I love Parks Canada. And they had these wonderful educational supplemental guides for students to learn about their national parks and those disappeared and were not picked up by LAC or the Internet Archive. I’m still fielding calls from people who are asking for Revenue Canada documents.

    Michael Geist:

    The standing committee on Industry, Science and Technology, which conducted the copyright review, spent a fair amount of time both looking at it, and it’s certainly got addressed both by the report as well as by some of the opposition parties. So what did they find and what did they recommend when it came to the issue?

    Amanda Wakaruk:

    You know, I spent a considerable amount of time watching testimony that was made available through PARL View and reading submissions with an eye to monitor the Crown copyright scenario, and it was really heartening to see so many people spend so many time, so much time and effort talking about it and to see our m.p.’s from all parties and on to stress that: m.p.’s from all parties asked questions about Crown copyright and appeared engaged and interested and increasingly knowledgeable about the issue that was incredibly heartening. So when I read pages 43 to 46 of the report, which I’ve got here in front of me. I it it started out good. I mean the headings Crown Copyright and they rightly state that no witnesses supported its content continuation at least in current form. And I’m quoting here, “a rare point of consensus”. So there’s recognition here that the witnesses were pretty much on the same page in terms of asking for changes to the current crown copyright regimes. But then when you get into the section headed committee observations and recommendations, there is this to my eye anyway, a real disconnect between what the M.P.s asked and heard and and what’s on the page, because it dives right into the Keatley Surveying case. And it and I’m quoting here, the Keatley Surveying case reveals that Crown Copyright serves two distinct functions. Well, I didn’t know the case was finished, first of all, and I can only assume they’re speaking to what they heard through the intervenors statements, which seems odd to me, but I’m not a lawyer. So that’s odd right away. And I did go back and look, and I didn’t really see any witnesses refer to Keatley except Mr. de Beer and perhaps one other person in passing. So it was very odd that this is where the focus is. But they go on to say that because of that case, they now understand, I guess, that the first function of Crown copyright is to assert ownership over works. The second function allows Canadian governments to disseminate works they do not own. OK, a. If you jump down to the recommendations, the legislative amendment that’s proposed seems to be giving the government more power, not less. And quoting here that the government of Canada introduced Copyright Act to provide that no Canadian government or person authorized by Canadian government infringe copyright when committing an act and it goes on. So my read of that is that they’re giving themselves the you know, they’re indemnified themselves from being sued for using other people’s work, which has nothing to do with Crown Copyright. Why is it in this section of the report?

    Michael Geist:

    Now, I have to say this. This you mentioned some access to information requests earlier on. And this I think in some ways highlights the commonality between control of government and through information through crown copyright and then control of it through various other means of disclosure, such as through access to information. And I think what we often see is that when parties are in opposition, as we see even in the in this report, they’re all for greater openness and disclosure. Once they form the government, suddenly they kind of back away from that. And I submit that’s that’s how I read this recommendation. I read this recommendation say we’d like to see something take place. And so we’d like to move towards a more open license kind of approach. And that’s certainly part of what they try to adopt. But that was seen as a bit of a compromise position between what I take it are internal concerns about a more open approach or complete abolition. And on the one hand, and what they actually heard from witnesses, which was by and large a call for abolition, which I think speaks to ultimately one of the real challenges that we face with this issue. Because now I think as with access to information, we often get opposition parties calling for greater openness and transparency, greater use by the public. But once these parties come into government, suddenly they identify reservations or concerns. I don’t know how much of that is being driven by bureaucrats, how much of that is being driven by political considerations. But regardless, this is proven to be a more intractable issue than we might have otherwise expected.

    Amanda Wakaruk:

    Yeah, so. So where do we go from here? I mean, the other part of the recommendation that I did not read out is about managing Crown copyright. And and just to give people context, it says that the government of Canada improved Crown copyright management policies and practices, which sounds great by adopting open licenses in line with the open government and data governance agenda. And it goes on to qualify that by saying that things that are published in the public interest and for the purpose of public use, education, research or information, which are qualifications that that, you know, we never heard from any of the witnesses. And I guess, you know, it hasn’t come up yet on the podcast here. But the Access to Information Act includes pretty broad statements about things that are excluded from ATI and things that are accepted from that process. So the government has a lot of controls already through the Access to Information Act. And I think the control that the public deserves to use, the material that is created in the public interest also needs to be in legislation. And they’ve stayed away from that. They aren’t recommending legislative changes. My read of that first part of the recommendation on on the existing system, which no one said is working,.

    Michael Geist:

    Following up on that, the the Canadian library and archival community has written a response. I think they generally like much of what the committee had to say, but they quite clearly were disappointed. As as we’ve been talking about with the Crown copyright recommendations, what did they have to say in their letter to the government?

    Amanda Wakaruk:

    Yeah, the I want to first note that that this this letter is available on the Canadian Association of Research Libraries website, and it’s actually been signed by nine different associations, library and archive associations in Canada. And that I do I can’t remember ever seeing a statement come out with that many voices. I mean, this is representing a wide swath of of your cultural memory stewards Canadians. So they they did ask for the government to continue to study this. So further study on this topic. I would have liked to have seen further independent study, but further study by the government is what’s been asked for. And they want the government to address six points. I’m not going to list them. They’re quite verbose. But in general, they want an environmental scan conducted and that should include documenting what’s happening here in Canada at both the federal and provincial level. That should include documenting and considering what’s been happening around the world. And. And boy, do we need a comprehensive study of comparative systems so that those are the main asks and they make it clear that they want that process to include stakeholders for all the stakeholders, all the relevant stakeholders. And my read of that is that that would include government employees. I have heard from so many government employees over the year that say their work is hampered by Crown copyright and are frustrated because they’re trying to do good work and share that work and they’re bumping up against this. The process would include all stakeholders, and at the end of the day, what they what this letter is really asking for is legislative amendments, legislative amendments that will transform an outdated provision.

    Michael Geist:

    Amanda, thanks so much for joining me on the podcast.

    Amanda Wakaruk:

    It’s my pleasure.

    Michael Geist:

    So I spoke earlier in the podcast with Amanda Wakaruk, who explained what Crown copyright is and why she’s been very active advocating for reforms. But the open question when I spoke to her was the Keatley case. We had an outstanding case before the Supreme Court focusing on Crown copyright. That decision now been rendered. And I’m glad you’re joining me on the podcast to talk a bit about that case and what it means for copyright and in particular, Crown copyright. Why don’t we start there? Can you provide a bit of a background on the case itself?

    Jeremy de Beer:

    Well, sure. First, I’ll give you the takeaway. It puts the ball squarely in parliament’s court to act on Crown copyright and update what the Supreme Court highlighted was a century old provision and both the majority and minority opinions focused on the the need to reconsider this issue in the broader context. So what was the case about? Well, as you know, as your listeners will know, Keatley Surveying is a class action brought by surveyors against a partner of the government of Ontario called Teranet. Teranet is a company that digitized and provides access to digital copies of plans of survey plans, of surveyor, essentially maps that mark the boundaries of people’s property rights in the province of Ontario. So Teranet digitized these surveys and provided access to the public. The surveyors weren’t getting paid when Teranet sells access to these these surveys. And so they brought an action for copyright infringement. Teranet’s first defence or one of their key defences was that the surveyors don’t actually own their copyrights. The Ontario government does by virtue of this provision in the Copyright Act, crown copyright.

    Michael Geist:

    Ok, so we’ve got these land surveyors who make who file these land surveys with the government, the provincial government and Ontario proceeds to make them available to this company Teranet and they digitize them. I assume Teranet then goes ahead and makes that available on a subscription type service or electronically they’re profiting from it. The government presumably is making some money out of this by way of the licensing fees that I assume they get of the license they have with Teranet surveyors turn around and say where do the only ones, not anything, anything out of this? They launch a class action lawsuit. OK. So Teranet argues that they’re entitled to make these copies and make this available because of Crown copyright.

    Jeremy de Beer:

    Yeah. Teranet believes or submits to the court. Teranet argues that it’s allowed to provide these surveys to the public because the government of Ontario licenses it to do so. And the government of Ontario by virtue of Crown copyright, is the copyright owner. So that raises the issue for the Supreme Court. What exactly is the scope of Crown copyright? The controversy centered around the ability of the government to acquire somebody else’s copyright merely by making available the work on its own Web site or on digital platforms run by its partners. In this case, Teranet. So nobody doubted that when the government creates its own works, official government works that are prepared by the government employees or departments, that those will be subject to Crown copyright. Whether that should be the case or not is a different issue we can come to later. But the question was what about when the government merely publishes somebody else’s work? Can the government get your copyright in that situation? And the Supreme Court unanimously said yes, but split 4 to 3 over precisely how and why that happens.

    Michael Geist:

    Ok, so we’ve got a crown copyright provision in the law that says the government owns copyright in certain works. At arguing that this can be this. This will include or can include or does include I suppose works that are submitted in the way that the surveyors would be submitting it. The surveyors, of course, arguing that while Crown Copyright should not be covering those kinds of works that gets submitted. You just told us that the Supreme Court of Canada, two decisions, two written decisions, but unanimously hold the crown copyright does cover this. So how did they arrive at that conclusion?

    Jeremy de Beer:

    Ok, so the court sets out the test for when the government can acquire someone else’s copyright by virtue of publishing it. The court split over what is necessary for the government to acquire someone else’s copyright. The majority of four judges agreed with reasons written by Justice Abella, and she said it all depends on the degree of direction or control that the government has over the publication process. The more direction or control the government has over the process of publishing the work, the more likely it is that the Crown has acquired copyright. Now in this case, the Crown had complete control over the process of publishing the work according to the majority of the court there was a comprehensive statutory scheme in Ontario that set the rules requiring surveyors to comply with certain form and content obligations, saying that once a surveyor submits the property or submits the property survey to the land titles office, the surveyor can’t change it anymore. Only government officials have the power to change it, saying that property rights in the survey itself, the physical survey itself, vest in the crown. And so these and other factors led the majority to say that that the government had complete control over the plans of survey and the process of publishing them. And because of that, sufficient degree of control and direction control, Justice Abella said that the Crown acquires copyright.

    Jeremy de Beer:

    While the majority of the court said everything depends on the degree of direction and control that the government has over the publication process. There were three judges who agreed in the result but would have applied a different test. And those three judges in reasons authored by Justice Justices côté and Brown said that the idea of looking at the degree of control was too impracticable, impractical, that it would create instability in the law of Crown copyright because you never know how much direction in control is enough. So the concurring judges would instead say it really depends on direction and control over the worker, not the work over the person who’s publishing the works, not in this case, the surveys themselves. And so they would look at the relationship between the government and its partner, Teranet, who’s making the surveys available online. But they imposed an additional requirement that the Crown can only get copyright in so-called government works. And they defined government works as works that serve a public purpose where it’s necessary to use copyright to ensure accuracy and integrity and appropriate levels of dissemination, ensuring that it’s accessible where it needs to be but not improperly disseminated. Where where accuracy and integrity here potentially compromised. And so for the minority, it was all about whether these are government works or not. For the majority, it was about whether there’s direction or control over the process of publication.

    Michael Geist:

    Ok, so we’ve got a majority focusing, it sounds like very much on the plain language of the statute saying this is what the statute says about control. We think there is control. That’s good enough. The concurrence in the minority sort of recognize or come to are of the view that this is problematic because that’s pretty broad. That can be pretty broad in scope as this case would highlight. And so try to read in some limitations. And it sounds like their their core limitation is to talk about government works and create their own definition for what that means beyond what we would think is the obvious when it comes to government work. So that broader public interest side where government control seems or some would argue is appropriate.

    Jeremy de Beer:

    Ywo nuances. The complaint that the minority had was not about the breadth of the majority’s interpretation, but about the unpredictability of the majority’s interpretation. The minority concern concern was that the test is just unworkable in practice. It’s not that it’s too broad or too narrow. It’s that we don’t know when it applies to all kinds of other works. And so now we can imagine intellectual property applications filed with the Canadian Intellectual Property Office or Securities Prospectuses filed with provincial or federal regulators or pleadings from lawyers submitted to courts and then made available on court websites. In all of these situations and many others, Canadians now need to ask themselves. Does the government have, quote, sufficiently extensive and, quote, control over the process of making these available online and how that applies in any particular cases is really anyone’s guess. So there’s a huge practical takeaway here for Canadians that anytime anybody submits a document that the government later puts online or publishes now needs a legal opinion on whether there’s sufficient degree, direction and control over that process. Where the person might lose their copyright to the government. So that was the real concern of the minority.

    Michael Geist:

    And by the sounds of it, your you’d share those concerns about how workable the majority’s interpretation of Crown copyright is.

    Jeremy de Beer:

    I do share those concerns. And in our submissions for the Canadian Internet Policy and Public Interest Clinic CIPPIC, which I represented as intervenor in the court, we raised those concerns about the unpredictability or unworkability of this spectrum of degree of direction and control. And three of the judges really picked up on that and and saw the saw the concerns. The the second nuance is that the majority interpreted this provision not based on the plain language, but with some linguistic gymnastics, they actually sort of twisted the plain language of the act to avoid having an overbroad interpretation where the government would get copyright anytime they merely made somebodies work available online without direction or control. If you look at the words of the provision, they might suggest that the government can get your copyright anytime the government puts your work available on the internet. And and the court kind of ignored the plain language to say that would be too broad. They wanted to stick with a narrow approach.

    Michael Geist:

    So it sounds like we’ve got real challenges from an interpretation perspective, really. In either case, I mean, in a sense, the courts face facing a provision that I know you’ve noted and many others have noted, sometimes referred to as a legislative monstrosity. It’s been around for decades or more and many, many decades and doesn’t necessarily reflect the way that we think of information today, information submitted to government. And, of course, we’re trying to come up with something. Obviously, you, on behalf of CIPPIC, provided some possibilities, but both the majority and the concurrence try to find a way through this and an ultimately struggle to come up with something that is truly workable in kind of the modern world.

    Jeremy de Beer:

    That’s right, Michael. So where we’re at is we have a Supreme Court decision that split 4 to 3, which struggles with some very awkward statutory language. All of the judges aren’t able to interpret it based on the plain reading of the words, because that would be so problematic. And so both the minority and the majority reasons come up with a proposed test to limit the scope. But neither of those tests is really workable in practice. And so that’s why it’s so important that parliament takes this issue seriously and and follows through on the committee recommendation to change the law of Crown copyright.

    Michael Geist:

    So we had the copyright review as part of that review. Crown copyright, I think to the surprise of some members of parliament emerged as an issue was raised by a number of people in the committee, picked up on this and started talking about potential reforms. Does the court itself in this case pick up on the notion of we’re struggling with this provision, perhaps Parliament ought to take a closer look?

    Jeremy de Beer:

    When when a judge says explicitly in her reasons that the provision is a century old and invites parliament to reconsider it if it sees fit. That’s about as blunt a language as a judge can use in encouraging statutory reform. The parliamentary committee that just completed a thorough review of the Copyright Act in Canada said that the problems with Crown Copyright were a rare point of consensus in hearings where there was divisiveness over many issues. Nobody was in favor of keeping this legislative monstrosity the way it is. And so that the government recommended the committee recommended changing the law.

    Michael Geist:

    So we’ve got the committee on side with this. We’ve got the witnesses with a consensus on side with us. And now, based on what you’re reading from Justice Abella for the majority, even the Supreme Court of Canada is sending the signal that there’s value in taking a closer look at this and making changes to better reflect where copyright law stands today.

    Jeremy de Beer:

    Yeah, I’d go further than to say there’s value in doing that. I think it’s imperative that this become one of the key areas where the industry committee’s recommendations are actually implemented.

    Michael Geist:

    Now, as assuming we move forward with that reform, then you start going towards the principle principles that underlie copyright. And I know that Justice Abella opens her decision by really reframing or restating where Canadian copyright law stands. Can you talk a bit about that? Because that strikes me as yet another important signal coming from the court about how it views balance, copyright and issues surrounding creative rights and users’ rights.

    Jeremy de Beer:

    One of the interesting things about this judgment was how emphatically all of the judges were about the principle of balance. Justice Abella said that it was so integral to the Copyright Act that it needs to be considered not just when we’re dealing with fair dealing issues, but when interpreting any provision in the act. The minority judges emphasize the concept of user rights, not just interests or expectations. And in fact, both Justice Abella and Justices côté and Brown talked about the importance of user rights and balance being at the heart of the act. So that provides a really useful not just restatement, but but actually framing for. Future cases and for for legislative reform going forward.

    Michael Geist:

    All right. So I know there has been debate at times over the commitment of the Supreme Court of Canada towards some of those balancing issues that came up before the before the committee, where some have tried to argue that it’s more rhetorical when they talk about balancing user rights. This this feels even beyond just the crown copyright side of the case, like a pretty emphatic statement by the court as a whole that it remains deeply committed to principles of balance and in fact, thinks of the user rights side of that balance in ways that extend far beyond even just fair dealing where much of the debate has centered.

    Jeremy de Beer:

    There’s no ambiguity about it. The unanimous judgment in both the majority and minority concurring reasons emphasized balance as being integral to the act at the heart of the act, and spoke about both creators and users rights, not just interests or expectations. So that’s now beyond doubt or debate, in my view.

    Michael Geist:

    It was a powerful statement. And as we think of the possibility of future copyright cases coming up before the Supreme Court, it’s pretty clear that that’s the lens that they are using when they seek to interpret the act and and issues that come up before them. One other thing that I just wanted to quickly touch on in this case was that there were a number of other interveners. You mentioned your role as part of CIPPIC to highlight some of the concerns, but there were quite a number of interveners that focused on primary legal documents. You had CanLII and some of the library associations recognizing that public access to legal information is critically important, that a podcast episode on this a number of months back, talking to Graham Greenleaf from Australia and talking as well with CanLII about the situation in Canada. And so there’s a lot of focus on ensuring that the public has access to legal information and concerns that if Crown copyrights interpreted too broadly, it might restrict some of that access. The intervenors talking about it, how did the court deal with this, if at all?

    Jeremy de Beer:

    The issue of ownership of the law, statutes and regulations and judicial decisions is one of the biggest problems with Crown Copyright. And the judges actually picked up on that explicitly, citing two intervenors arguments that raised concerns about anyone, whether it’s a private surveyors or the government or the government’s partners owning the law and surveys here. You have to be aware, represent legal boundaries. So they are, in effect, a statement of property law in the province of Ontario. The judges didn’t fully grapple with that issue. Justices côté and Brown said that they would have to leave that for another day, recognizing the seriousness of the problem, but also understanding that they didn’t have the the submissions to deal with the issue thoroughly and properly. Another invitation for parliament to address this question. And so as parliament considers how to implement the Industry Committee’s recommendations for fixing Crown copyright, this question of ownership of legal materials should be a right in the forefront. This is a question that’s coming up right now in other jurisdictions. Some of your listeners may be aware of a case in the United States involving the Georgia Annotated Code and a an online provider called public resource dot org, which is trying to make this law more accessible. The United States Supreme Court has agreed to hear arguments in that case. And so this is a great opportunity for us in Canada to, you know, fix our copyright law in a different forum through parliament. At the same time, as this issue is, is really gaining global attention.

    Michael Geist:

    So, I mean, it’s interesting, crown copyright isn’t something that I think those who don’t copy follow copyright closely would think of as a as a core burning issue. And certainly I think the m.p.’s and perhaps even some of the Supreme Court judges might not have initially appreciated the role that it can play across a spectrum of access to information related issues in the scope of copyright. But it’s pretty clear that we now have essentially a legislative branch by way of the review, copyright review, the judicial branch. And we’ve got the broader public saying this is something that needs fixing. And as we look to a new government post-election who may be looking for easy wins on issues like copyright, this seems like an obvious place to turn.

    Jeremy de Beer:

    That’s right. And crown copyright is not an obscure issue by any means. In fact, it’s only going to grow in importance as we move forward in an era of big data, much of it collected or disseminated by governments. Digitization projects involving public private partnerships. The question of who gets the copyright in these circumstances is enormously important and something that the Supreme Court has been clear. Parliament now needs to deal with.

    Michael Geist:

    Well, we’ll be certainly following closely and see if Parliament does accept that invitation in a sense to act. Jeremy, thanks so much for joining us.

    Jeremy de Beer:

    Thanks for having us, Michael.

    Michael Geist:

    That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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    45 min
  • Episode 29: Partisan Posts, Social Media, and Misinformation - Taylor Owen on What Actually Happened Online in the 2019 Election
    Coming into the 2019 federal election, there were widespread concerns regarding disinformation campaigns, foreign interference, social media advertising and manipulation, and fake news. The federal government enacted legislation designed to foster greater transparency on political advertising, but on the heels of elections elsewhere, the prospect of online harms to the electoral process appeared very real. Taylor Owen of McGill University set out to find out what was actually taking place online. He joined me on the podcast shortly after the election to discuss how social media was being used, political advertising trends, the role of fact checking, and the presence of misinformation and fake news.
    The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.
    Show Notes:
    Digital Democracy Project
    Credits:
    CBC News, Election Interference is Happening in Canada: What You Can do to Stop It
    CPAC, Are You Concerned With Fake News and Disinformation in Canada?
    Transcript:
    LawBytes Podcast – Episode 29 transcript powered by Sonix—the best audio to text transcription service
    LawBytes Podcast – Episode 29 was automatically transcribed by Sonix with the latest audio-to-text algorithms. This transcript may contain errors. Sonix is the best way to convert your audio to text in 2019.
    Michael Geist:
    This is Law Bytes, a podcast with Michael Geist.
    CBC:
    Distortion is a cer
    41 min
  • Episode 29: Partisan Posts, Social Media, and Misinformation - Taylor Owen on What Actually Happened Online in the 2019 Election

    Coming into the 2019 federal election, there were widespread concerns regarding disinformation campaigns, foreign interference, social media advertising and manipulation, and fake news. The federal government enacted legislation designed to foster greater transparency on political advertising, but on the heels of elections elsewhere, the prospect of online harms to the electoral process appeared very real. Taylor Owen of McGill University set out to find out what was actually taking place online. He joined me on the podcast shortly after the election to discuss how social media was being used, political advertising trends, the role of fact checking, and the presence of misinformation and fake news.

    The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

    Show Notes:

    Digital Democracy Project

    Credits:

    CBC News, Election Interference is Happening in Canada: What You Can do to Stop It

    CPAC, Are You Concerned With Fake News and Disinformation in Canada?

    Transcript:

    LawBytes Podcast – Episode 29 transcript powered by Sonix—the best audio to text transcription service

    LawBytes Podcast – Episode 29 was automatically transcribed by Sonix with the latest audio-to-text algorithms. This transcript may contain errors. Sonix is the best way to convert your audio to text in 2019.

    Michael Geist:

    This is Law Bytes, a podcast with Michael Geist.

    CBC:

    Distortion is a certainty and there’s no point declaring it can’t happen here. It’s already here. So what are we going to do about it? About misinformation and those who would mess with our minds and elections.

    CPAC:

    Are you concerned with fake news and disinformation in Canada?

    CPAC:

    Not really. It really comes down to are you willing to look into the information you’re trying to feed yourself in, the information that you’re trying to project out into the world? Right. If you’re constantly being told what to believe in, what to think and what to say, that’s more of a you thing than a Canada thing. So I don’t blame Canada. I blame the person or the people.

    CPAC:

    Absolutely. I think it’s a very important issue. It’s important to have reflective and accurate information and such. I think fake news is definitely misleading and can often construe mis interpretations of reality.

    CPAC:

    Well, I am concerned about fake news because there’s so much info out there already. With Wikipedia leaks and everything going online. You never know what kind of source is true. Like I’m in school and just source checking is a big thing. Like you have to check every every source that you have. So it’s fake news makes it harder now to know what’s true and what’s not.

    Michael Geist:

    Coming into the 2019 federal election, there were widespread concerns regarding disinformation campaigns, the prospect of foreign interference, social media advertising and manipulation and fake news. In fact, the federal government enacted legislation designed to foster greater transparency on political advertising. But on the heels of elections elsewhere, the prospect of online harms during the election appeared very real. Taylor Owen, the Beaverbrook chair in media ethics and communications in the Maxwell School of Public Policy at McGill University, set out to find out what was actually taking place online. He led the Digital Democracy Project, which studied the media ecosystem in the run up to and during Canada’s Oct. 2019 federal election by monitoring digital and social media and by conducting both regular national surveys and a study of metered samples of online consumption. The project released reports throughout the campaign on how social media was being used political advertising trends, the role of fact checking and the presence of misinformation and fake news. He joined me on the podcast shortly after the election to discuss.

    Michael Geist:

    Taylor, thanks so much for joining me on the podcast.

    Taylor Owen:

    Hey, my pleasure. I’m a fan.

    Michael Geist:

    Ok, well, that’s great to have you on it. You know, there’s been a few people that have been incredibly active during this election campaign beyond, of course, the leaders. And I think you’re one of them because your digital democracy project has put an enormous number of new reports and ideas out into the public sphere. So what do we start there if can explain a little bit with the project is about?

    Taylor Owen:

    Yeah. I mean, so the genesis of it was a sort of observation that in many of the other countries that have had big elections since the 2016 U.S. election, where there was substantial foreign interference, there was a community of scholars and sometimes non civil society and even for profit actors who were monitoring it, monitoring the information space during the election. And we didn’t see that community existing in a robust way in Canada in the lead up to this election. So we saw the that’s the genesis of the project. Was this in our perception that we could add something by doing some pretty wide scale monitoring of the media ecosystem during the election. So the way it kind of came together is we have a team at McGill that’s being run by a computer science professor, Derek Ruths, and they are they led and are still doing a fairly large data collection project on of the media ecosystem. So they’re collecting as much Twitter as possible. Facebook, public posts, all of Reddit, all news published and distributed during the election. So really just looking at all. What are the ways in which we can capture the public discourse during an election. Where we think maybe we added some mythological capacity to even what’s been happened in other countries or has been implemented in other countries is we tried to pare that online data collection activity with a number of survey mechanisms. And the reason for this is that in most of these other studies and other elections, they’ve been able to perhaps spot disinformation campaigns or say something about the narratives that were emerging during the elections. But they really didn’t get out behavioral change.

    Taylor Owen:

    So did exposure to those kinds of narratives or that kind of potentially problematic content, whether it be foreign influence or just fake news campaigns or ever it might be. Did that actually change the behaviour of citizens during an election. So that we worked with Peter Loewen, a political scientist in Toronto, and his team where they ran national surveys every week for nine weeks and they ran a what’s called a metered survey, which is a sample of Canadians that allowed us to collect all of their online data consumption, online consumption or web consumption. So we saw everything that they saw over the course of a period of time during the election and surveyed them on the front and back end of that. And we did a active survey sample where we sort of recruited Twitter users and Facebook users off the platform itself and brought them into a panel survey. So we had these these wide variety of mechanisms and really we were just trying as much as possible to, shed some light during the election on on what was happening in the media ecosystem.

    Michael Geist:

    I mean, it’s really, from a Canadian perspective, unique to see that this kind of mass data collection, at least by within an academic environment, taking a look at what people are actually doing, surveying them to a sense, get a sense of what they think they’re doing or what they say, and then being able to pull that together. And I know that over the course of the election campaign, you were putting out regular reports that touch on a pretty wide range of issues.

    Taylor Owen:

    We did, we did. So we we weekly tried to release some set of findings either from little experiments that we ran each week or just reflections on some of the trends we are seeing, it ends up being much more difficult than we expected. I think there’s a reason that there are not a large number of people doing these kinds of things in real time during the election. It’s it’s not easy to put out things that have a degree of academic rigour to them on that kind of timescale. And I think we’re probably and we also say a lot more after now really after period after the election or we can take this what is a really massive dataset of all this online behaviour and then take out the metered survey, all this all the data that this sample of participants, all the Web data and all the site content from the Web sites they saw and really start to make sense of that and hopefully tell some sort of relatively robust story about the election.

    Michael Geist:

    So the work will certainly continue. Why don’t we zero in on on some of the studies that you did put out as I think this is still fresh. You know, one of the things I know that you took a look at was, as you mentioned, social media use during election campaign. And do you have a sense of based on the data, what does it tell you about about Canadians usage and does it increase during these these kinds of activities?

    Taylor Owen:

    Yeah. Look, it seemed to spike quite significantly during the election, so we tried to create measures of political activity because we really we didn’t care about all activity on these platforms, but really what could be construed as political and that activity on Twitter sort of activity on the main hashtags, by partisans, by political journalists, by candidates themselves, that cumulative discourse grew by 800 hundred percent down from the pre, pre and post election writ period. And on our Facebook, it was 250 on public posts on Facebook, which importantly is what we can see, right. We can see the public post, not the private posts went up by 250 percent. So absolutely there was a spike.

    Michael Geist:

    That’s that’s a massive increase in news that being did. Does the data tell you that’s being fueled or do you have an idea whether or not that’s being fueled by the political parties and the politicians themselves, or is it the public that’s fueling the discussion or is it a bit of both kind of responding to what each is seeing taking place?

    Taylor Owen:

    Yeah, I’d say all you all of the above. I mean, all so we try on Twitter, for example, we clustered different users. So we had a general public user base, which were just people who posted in any of the election or political related hashtags. We had all political journalists in one cluster. We had all candidates in another cluster. And we had sort of kind of some thought leader type category. So on each of each of those, the usage spiked massively. But one thing that was really, really clear was that the overall discourse was highly partisan. So you could see very clear demarcations of partisan clustering across all of those groups where individuals with particular ideological or partisan affiliations were speaking largely to themselves and sharing content that confirmed broadly the narratives of those political parties. And so that that I think is is a key aspect to it. Yes, it spiked. But also we really did see on Twitter, particularly this partisan clustering.

    Michael Geist:

    So it’s super interesting you suggest that that we that we’re creating a large public sphere, but one in which you’ve got a series almost of echo chambers where people are just reverberating the same messaging with within wherever their partisan views happen to land. Is that is that the case or do you? Did you find some amount of crossover? Is there a sense is there the ability to persuade or are people just becoming more and more firm in their views when they venture into, say, Twitter or Facebook?

    Taylor Owen:

    So it was only when we saw this clustering that was one of the questions, right? Like is this. Is this a filter bubble or an echo chamber? Right. Is that’s the way the system is filtering content to people based on pre-existing behaviour, or is this people self-selecting into these kinds of conversations creating echo chambers? And so because we had these survey experiments running, we could test that, try and test for that. And one of things we do is we exposed people in a survey experiment to a broad range of news and saw and and asked them which ones they wanted to consume. And overwhelmingly, people choose content that supports their put their pre-disposed positions in that experiment up the really clear results. But then we can test if continued exposure to that kind of political messaging changes their beliefs. And we found it actually does. It actually strengthens their perspectives and their pre-existing positions. So that could be the spillover effect of this, is that we know people are choosing and self-selecting into communities both online and in these survey experiments, choosing content that confirms their pre-existing views and that over time their beliefs on that issue become more rigid and strong.

    Michael Geist:

    Right. So so rather than seeing crossover, we see a firming up of people’s positions in large measure, I suppose because they are hearing the same things, are reading the same things continuously that reinforce the views that they came in with to begin right at the start.

    Taylor Owen:

    Yes. I mean, that’s our perception now. Yeah. But we are really that those one final thing on that is that in this in this everything, there’s another element here, which is whether we as a society more broadly are polarized from one another and how we view people in other clusters, in other ideological clusters and some of the survey work. Peter was able to get out some of that, too, and actually found fairly high degrees of what they call effective polarization. Would just like all core dislike for other political parties or other supporters base just because they are members of an opposing group. And that is something that I don’t think people really thought existed to the degree it did in the Canadian political system. But it it came through pretty, pretty strongly.

    Michael Geist:

    So the you know, the aftermath of the election results where we’ve had a fair amount of discussion about polarization, more on a geographic basis between provinces or perhaps urban, urban, rural. You’re saying that you see the same kind of thing taking place in social media.

    Taylor Owen:

    Yeah, in terms of what people are sharing, who they’re following and the content they are consuming. It is polarized.

    Michael Geist:

    Yes, the one of the other areas that you focused on and had the opportunity to do so in large measure because of new legislation that required disclosures of political advertising on social media was to take a closer look at that kind of advertising of advertising, particularly, I know, on Facebook. What are the kinds of things that you found taking place?

    Taylor Owen:

    Yeah. I mean, that preface, I think it’s important that that this the our ability to see something inside is in part because of C-76 which mandated these ad archives. I think it’s we were able to see Facebooks because they’ve done a much better job at making that data public than the other platform companies. Remember Google, right, decided that they were not going to sell political ads rather than impose or develop the archive for the Canadian market.

    Michael Geist:

    But if there’s anything that’s worth exploring why that might be the case. But Facebook had already implemented this in the US to their credit and and then deployed that ad archive system to Canada in a fairly effective way. And so for this, we there are a couple of projects that we’ve partnered with that we’re kind of leading this. One was that team at the NYU Engineering School, which had been done some of the best ad archive work in the United States and the Ryerson Leadership Lab are their project on this, too. And I think it tells a few things about the ad system. And we we were they and we to a certain degree were able to see which what political parties were doing, how they were using that tool of Facebook advertising differently than each other. And there are some differences. I mean, the Conservative Party used it much more as an extension of broadcast advertising, where they were blasting similar messages to large clusters of people in across different areas of the country, whereas the liberals were using micro-targeting looks like to a much greater effect using custom lists, which it doesn’t look like the Conservative Party was doing. And you could see some of that third party activity. Right. So Canada Proud emerged as by far the biggest third party ad spender. I mean, more than the next seven, I think, combined or something. So there’s no question that they were using that tool to great effect. But it seems that that’s the one piece of it. But then because we had access and visibility to the ads and this is a new thing, right, that we can see not just who spent what, but actually what the ads themselves were that they spent on. We could do some experiments with the ads themselves. So we use this survey tool again to test whether some of those ads that the campaigns were running or working, whether they’re having a positive or a negative effect on voters, that could tell us something about the nature of this kind of advertising more generally.

    Michael Geist:

    And did the advertising target you coming back to the partisan playground findings: Are people advertising to reinforce the views of people who already have a particular view, or is advertising seen as an opportunity to see if they can’t pull some people away from one perspective into theirs?

    Taylor Owen:

    That’s interesting. We we don’t have that analysis yet. I think I certainly want to be looking for the most as I’ve weeded with around negative versus positive framing. So the experiment we ran was on whether these negative framings versus positive framings work and what effect each one has on people’s beliefs of the party and on the issue. And on that, we can show that that negative ads, just as we know, work better. But they make people angry at the people who posted them as well as the people they are. directed at. So they actually kind of increase polarization, I think, but decrease it. But they do get the message across. But no, I think on the micro-targeting stuff, we will we will be able to do more going forward on that. But it is a limitation of this, right, in that we only have access to very limited targeting data. And that’s something that many of us, civil society and academic groups using these data in the US in particular have been flagging that ad targeting legislation needs to broaden the mandatory requirements of data release there because it’s just too limited in what we can see right now. It’s a very general targeting information, right.

    Michael Geist:

    So a more transparent approach would really provide a great deal more insight. I just want to circle back just to make sure that I understood. So negative advertising is effective in terms of just reinforcing a negative view. But you’re suggesting that people also have a negative perspective on the person doing the negative postings as well?

    Taylor Owen:

    Exactly. It drives up negativity on both, but it works to get the the message of the ad transmitted. So people have a higher negative perceptions of the party at which is directed. But also of that, who posted that. The inverse is actually, to a certain degree, true too. That positive ads seem to reduce that variable of effective polarization that I mentioned. Just latent dislike for the other political group. But the parties just aren’t using it very much. So I think the parties could, if they had more positive ads, decrease effect of polarization. But they’re just not doing it.

    Michael Geist:

    That’s really interesting. As you know, the Herle Burly was a extremely popular and incredibly insightful podcast series that ran throughout the campaign. There was a lot of talk about negative advertising with the pervasive view, I think, of those of people like Scott Reid, Jenny Byrne that you needed to move towards negative advertising. But it sounds like you’re finding says, yes, they do work, but they also have real costs, which is, I guess, the tradeoff that campaigns have to make when they decide just how negative to go or to embrace a more positive approach.

    Taylor Owen:

    Yeah, I think that’s right. I think there’s some blowback there that I would think they would. Political campaigners would acknowledge that that’s the case and they see that risk as as worth taking. I think there’s a broader question, though, about what that kind of negative attack advertising does to our broader political discourse. And if it leads to just everybody disliking the opposing side more, that’s probably not a great outcome in the end of the day.

    Michael Geist:

    No, it’s not.

    Taylor Owen:

    But I think that what more working on political advertising isn’t worth framing here is that we started with the mentioned C-76. And I think looking at the who is advertising and what they were doing, it is highly likely that an a type of political advertising during an election was dissuaded by the very fact that it was going to be made public. I think we saw relatively clean digital advertising campaigns in the ads we’ve seen. And I think it’s an open question over who else would have used that tool had it remained secret. Counter-factual, obviously, we don’t know, but I think it’s worth reflecting on when we look at the effectiveness of these kinds of policies.

    Michael Geist:

    You know, that’s a terrific insight. It’s consistent with those that have pushed, of course, for more transparency in any number of different places where if you know that what you do may be revealed to the public, there’s greater transparency there. So you’re in the spotlight a little bit. It has it can have real effects on the way people behave. Whether that’s with your in your government or corporate accountability or in this context, knowing that the ad campaigns you run would be made available in this manner, might have some thinking twice about what they chose to do.

    Taylor Owen:

    Yeah, in particular, when you combine it with other elements of C-76 like limits on digital spending. Right. So there might actually be not just perception downsides to being made public, but actually penalties as well.

    Michael Geist:

    So the legislation is imperfect, as you’ve already mentioned, in ways that it could be improved. But it has has has did have some positive effects on this campaign. You know what, if the so that I think for those that we’re actively engaged in some of those policy issues, I think that that’s that’s a great takeaway. You know, one of the other ways, of course, that people become disheartened isn’t just through the advertising, but is through the range of the information itself, sometimes false information, sometimes active disinformation. I know that you took a look both at disinformation campaigns as well as fact-checking and the impact that that has if we could take a take a discuss a little bit. Those from a fact checking perspective. We’re seeing more and more groups I know engage in fact checking. Does it have much of an impact?

    Taylor Owen:

    Yeah. And so we wanted to look at that on whether exposure to correct information in response to potentially false information or a predisposition to believe something on a topic that wasn’t true, whether that could actually change people’s opinions on it. And we found two main things which one is relatively positive and the other shows its limits. I mean, for one, we found we did experiments on both climate change facts and immigration facts. And on both of them, we found that for people who believed false things on either of those. So for refugees, it was number of refugees coming to Canada. And on climate change, it was some basic facts around the Paris agreement and the causes of climate change. If people were presented with corrected facts, they would change their present, their their their own facts. Right. So they would update their knowledge on the issue and and agree to respond with those new facts. That’s the positive thing that the fact checking could work. Then the limit of it is that for partisans, it does not change their policy position on those issues. What I think tells us something really interesting about how people come to their policy positions. It’s a lot more than just the facts, right? So on immigration, it’s more than just how many absolute number immigrants they think we are. We we or refugees, we accept a year and on climate change. It’s not just about whether they think climate change is human induced. It’s about something more. And so, yes, we can change their knowledge on an issue, but we can’t necessarily those that fact-checking exercise doesn’t change their policy positions for partisans.

    Michael Geist:

    That’s pretty. It’s awfully discouraging, actually, when you think about it. If you’ve got people who who know from a factual perspective that the policy they’re advocating for, the underlying facts are inconsistent with the policy, but yet they still will advocate for the policy because it’s consistent with their broader partisan view.

    Taylor Owen:

    Right. And I mean I mean, in part that’s understandable because people support policies for this wide range of reasons might be values based. It might be identification with a particular ideology. Right. It might be the reason that the perception that other people have pushed of alternate policies in the past. Right. There’s also the reasons we might come to believe certain things, but it’s there supports certain policies. But it’s. But facts are just a piece of that, unfortunately. And then, look, there was another sort of really discouraging aspect that we found here, which was that discouraging. But I think offer some pause, particularly to the media and journalists, which is that it actually didn’t matter who is doing the fact checking and had the same level of effect. So we tested whether it mattered if a political candidate, a friend on social media or a news, a reputable news outlet, one of the top most trusted news outlets in the country. And it actually made no difference, which if I were a journalist or a media organization, that would probably give me pause.

    Michael Geist:

    It would suggest that people are people. People may be open to hearing new facts. But the the degree to which they look at what are otherwise viewed as reliable, authoritative media sources is just one of a number of different places where they can get their information and look at those sources as being roughly equivalent.

    Taylor Owen:

    Yeah, I think that’s right. And we did a number of tests around the perceptions of the media more broadly, and there’s some positive things in that I mean, people thought that people are pretty high levels of trust in traditional media. The country has much higher levels than we see in other United States, for example. We also found kind of surprisingly that the the more media someone consumes, the more likely they were to be misinformed on policy issues and election issues. So again, that would if I was a journalist, that would give me cause on the effect I’m having on the electorate when if I if I as I as a citizen consume more journalism, I am more likely to be misinformed on the main issues of the election.

    Michael Geist:

    I wonder if that just speaks to there’s so many different. We’re being bombarded with so many different issues and perspectives that would you the more you consume, sorting through all of those different issues is increasingly challenging.

    Taylor Owen:

    I think that’s right. And partisanship, when you layer that on, makes all these variables worse. And that’s really one of the things we sort of landed on here, is that partisanship really does have a its force in many variables. And so if you add partisanship on top of media consumption and if you add social media consumption on top of that, to the degree of social media coverage, it’s the worst. So the worst the most misinformed people we tested were partisans who consume a lot of media, mostly on social.

    Michael Geist:

    People who otherwise if you were to ask, I assume I tell you that they believe that that they are very well informed and here’s why they’re so well-informed.

    Taylor Owen:

    And that’s a nail on the head there. And that’s the variable that we tested, the difference between being uninformed and misinformed. Right. So uninformed people were actually very willing to be corrected because it actually might not be that a problem that would have a problem in terms of disinformation, which we’ll talk about because they’re OK at being me being corrected. It’s the misinformed people who think they know think they are right. The bigger problem.

    Michael Geist:

    So you you mentioned disinformation or misinformation online and as a good segue, that’s that’s, of course, one of the reasons we saw some of the legislative activity to try to expose activity, expose advertising online to address that issue. And what are the real concerns about interference with the campaign fuelled by disinformation. I know that you attempted to try to take a look at some of that activity as well to the extent to which to identify whether or not it was happening in Canada. What did you find?

    Taylor Owen:

    Yeah. So ultimately, the election, when sort of events emerged that people were suggesting might be disinformation campaigns or inauthentic activity. Representative of inauthentic activity, we took a pretty close look at it and will more so now get a bit more time. But the high level takeaway is that we did not see a large amount of either fake news, news and false news designed to appear like traditional journalism or regular journalism or the kind of inauthentic behaviour that we’ve seen in other countries, either domestic or international. So hashtags being fueled by bot activity, for example, or or false narratives and memes sort of spreading virally in an authentic way. We did not see a lot of it. There was some of that, absolutely, but not a lot. And for what we did see, it appeared to be in this kind of a perverse effect of an earlier thing we talked about, which was the clustering of the online discourse. That clustering, it looks like, provided a bit of a buffer for the spread and distribution of that problematic content. So if you look at something like the Buffalo Chronicle stories that kind of took off, two big ones which were sort of probably the clearest cases of fake news distribution and inauthentic behaviour that emerged. Those were just largely distributed amongst conservative communities on Twitter and Facebook. And that sort of to me implies that the problematic content we’re seeing confirmed existing biases rather than changed behaviour on voting. That does mean it’s not a problem, right? It still it probably made our discourse a bit more toxic and it probably led a certain partisans to feel more entrenched in their views and more negatively about other political parties. But it probably didn’t change your votes. And that’s that’s something we can pull out of this conversation.

    Michael Geist:

    And that’s, you know, I guess that’s encouraging on one level, too, that the fears of disinformation campaigns, whether foreign influenced or otherwise, didn’t emerge. The same time, though, I think the identification of the impact that that fake news has yet not to necessarily deceive or bring people over into one went from one camp to another, but rather to further entrench the kind of divide that it sounds like you you’ve identified across a range of different studies really from. Yeah. Who do you trust more broadly to misinformation to even the way people are engaging in advertising. The same trend keeps reoccurring in a number of different studies you conducted.

    Taylor Owen:

    It doesn’t like so. So one thing that you probably saw that analysis on Twitter kind of took off mid-campaign around the potential foreign influence of Trump supporters in uncertain hashtags in Canada. So this researcher found a pretty high level of Make America Great ID on accounts, talking, driving the anti Trudeau hashtags that popped up. And so were suggesting that these bots are authentic, coordinated behavior. So one of the things we did do a little bit of a deep dive on on these anti Trudeau hashtags is about 40 that emerged during the election. So we looked at over a week, about seven hundred thousand tweets on those 40 hashtags, trying to see if like. Is that the case? Right. Is there? Is it because I think that that would be a significant concern. Right. There was a coordinated Make America Great Again community that were bombarding the Canadian election. And what we found was there were a lot of accounts that had these kinds of ID, but they didn’t look to the American look pretty clearly. They were Canadian. They weren’t necessarily tweeting in a manner that suggested they were bots or even inauthentic or even coordinated. But at what it looks like, they were were just a bunch of partisans who tweeted a lot. Right. Tweeted 100 times a day, largely things that confirmed their existing views or their hatred of whatever it might be. And we’re just sort of having this conversation, this collective conversation under these anti Trudeau hashtags. And when we looked at other hashtags that were pro Trudeau or pro NDP, we actually found very similar types of behaviour. These people who are just tweeting a lot with fairly toxic kind of memes and content, speaking to each other, can reconfirming their preexisting biases. And your point that tells us something important about our political discourse, right, that there are these toxic sub communities. They are highly polarized. They are not exposed to information that in any way challenges their their beliefs. But is that inauthentic? I don’t know.

    Michael Geist:

    What’s notable as well is, as you point out, that this is not a left issue or a right issue. Although each side, I think of it that terms you see the same kinds of behaviour you’re suggesting occurring, whether you’re on the left of the political spectrum or on the right.

    Taylor Owen:

    I should say we see the similar types of behaviour, but very different magnitudes. At least in the Canadian context, where the scale of the activity on the anti-Trudeau hashtags was radically disproportionate from the ones on the existing on the left. And and I don’t have a good explanation for why that’s the case.

    Michael Geist:

    Okay. So that so that while the types of behaviour are similar in terms of just the volume of activity, there are differences depending on which obstacle spectrum you look at.

    Taylor Owen:

    In the Canadian context in this election. Absolutely.

    Michael Geist:

    Right now, they’re thinking ahead before we close. You’ve talked about the impact of Bill C-76, talked about the prospect of some further research and the likelihood of the kinds of things you could do now that you’ve got that large dataset from a pure policy perspective. Do you have a takeaway or two about what governments ought to be thinking about as we look ahead? Next, elections obviously a number of years away. But these kinds of issues are going away.

    Taylor Owen:

    Might be another number of years away. A few months, I guess, to watch. Greatly hoping it’s not. But look, I mean, I think what we talked about in C-76 is that the far from perfect. Canada had the advantage of coming after a number of big elections where this problem was being analyzed. So just by coming 8th or whatever it was in a series of democratic elections since 2016. We had the benefit of hindsight, right, to look back and see what happened. The elections and the government, to their credit, I think did some things to try and alleviate the low hanging fruit that were the easiest mechanisms to interfere in election that we saw in other campaigns. The ban on foreign advertising, important money, I think is an easy. It was an easy one. The ad archives making some of the stuff visible also played a role. Some of the limits on third party advertising, though controversial, I think probably dissuaded a certain type of activity. The Foreign Interference Committee. I think that probably maybe, I don’t know, dissuaded certain foreign actors. Those are all counterfactuals and we can’t know. But we do know that we did more than what a lot of other countries had done in response to this perceived threat. And we had much less. I think we had a cleaner election in terms of the information space. So that I think is a broad reflection. The other piece of it, though, would be. Are we simply regulating and researching, I would say from our perspective, too, based on previous campaigns and the methods that were revealed in previous campaigns, and so are we studying, regulating for and studying the right things? And I’m not totally convinced we are. I think there’s there’s highly likely dark spaces that aren’t revealed by any of these mechanisms. What we are allowed to see from the research perspective or what is being limited on the regulatory side. And I think that there’s just a broader question about the nature of our political discourse in the online space. And is it the kind of discourse that we think ultimately benefits a democracy and that that’s obviously not a problem that will be addressed with necessarily more regulation. But I think its the question we need to ask ourselves, is this the kind of discourse we think is most beneficial for an election? I don’t have a great answer to that, but it’s a concern I have.

    Michael Geist:

    Well, I think it’s certainly a question worth asking and to sure that we get informed answers or at least an informed discussion around it. I think we’re reliant on precisely the kind of data and reports that you’ve been generating. So it’s, I think, a really important service that you’ve pulled together.

    Taylor Owen:

    Thanks so much.

    Michael Geist:

    Thank you. Thank you for joining me on the podcast today.

    Taylor Owen:

    My pleasure.

    Michael Geist:

    That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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    41 min
  • Episode 28: The Past, Present and Future of Open Access - A Conversation with Leslie Chan
    This week is open access week, an opportunity to celebrate and raise awareness of the emergence and continued growth of open access. Countries have been taking increasingly strong steps toward making their research openly available, with mandates that require researchers who accept public grants to make their published research results freely available online within a reasonable time period. Leslie Chan, a professor at the University of Toronto Scarborough and one of the earliest global leaders on open access, joins the podcast this week to discuss its past, present and future.
    The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.
    Show Notes:
    Chan et al, Contextualizing Openness: Situating Open Science
    Piwowar et al, The state of OA: a large-scale analysis of the prevalence and impact of Open Access articles
    Credits:
    Washington Post, Biden Unveils Launch of Major, Open-Access Database to Advance Cancer Research
    UC Berkeley, Nobel Laureate Randy Schekman on Elsevier, Open Access
    Transcript:
    Law Bytes Podcast – Episode 28 transcript powered by Sonix—the best audio to text transcription service
    Law Bytes Podcast – Episode 28 was automatically transcribed by Sonix with the latest audio-to-text algorithms. This transcript may contain errors.
    35 min
  • Episode 28: The Past, Present and Future of Open Access - A Conversation with Leslie Chan

    This week is open access week, an opportunity to celebrate and raise awareness of the emergence and continued growth of open access. Countries have been taking increasingly strong steps toward making their research openly available, with mandates that require researchers who accept public grants to make their published research results freely available online within a reasonable time period. Leslie Chan, a professor at the University of Toronto Scarborough and one of the earliest global leaders on open access, joins the podcast this week to discuss its past, present and future.

    The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

    Show Notes:

    Chan et al, Contextualizing Openness: Situating Open Science

    Piwowar et al, The state of OA: a large-scale analysis of the prevalence and impact of Open Access articles

    Credits:

    Washington Post, Biden Unveils Launch of Major, Open-Access Database to Advance Cancer Research

    UC Berkeley, Nobel Laureate Randy Schekman on Elsevier, Open Access

    Transcript:

    Law Bytes Podcast – Episode 28 transcript powered by Sonix—the best audio to text transcription service

    Law Bytes Podcast – Episode 28 was automatically transcribed by Sonix with the latest audio-to-text algorithms. This transcript may contain errors. Sonix is the best way to convert your audio to text in 2019.

    Michael Geist:

    This is Law Bytes, a podcast with Michael Geist.

    Joe Biden:

    We have to use every weapon at our disposal. We’re going to meet our goal to help patients even more than you’re already helping them today. And to be honest with you, it requires somewhat of a change in mindset, which requires a lot more openness, open data, open collaboration and above all, open minds.

    Randy Schekman:

    Corporations like Elsevier are avaricious. They they have the highest profit margin of any publisher and possibly of any corporation in the world because they they charge authors going in and they charge authors access to their own information.

    Michael Geist:

    This week is open access week, an opportunity to celebrate and raise awareness of the emergence and continued growth of open access. Countries have been taking increasingly strong steps toward making their research openly available, with mandates that require researchers who accept public grants to make their published research results freely available online within a reasonable time period. The basic principle behind open access is to facilitate public access to research, particularly the research that’s funded by taxpayers. This can be achieved by publishing in an open access journal or by simply posting a copy of the research online.

    Michael Geist:

    To help sort through the issues associated with open access. I spoke with Professor Leslie Chan, professor at the University of Toronto Scarborough and one of the earliest leaders on open access. Professor Chan was one of the original signatories of the Budapest Open Access Initiative, a historical and defining event in the global open access movement, and has long been active in the experimentation and implementation of scholarly communication initiatives around the world. He joined me to explain the basics where things stand today and how open access may develop in the future.

    Michael Geist:

    Leslie, thanks so much for joining me on the podcast.

    Leslie Chan:

    Thanks for having me, Michael.

    Michael Geist:

    Okay, that’s great. So as you know, this podcast is going to run at the start of Open Access Week, a week that’s been used for a number of years now to celebrate and raise awareness of the emergence and continued growth of open access. So why don’t we start there for those who are new to the issue? What is open access?

    Leslie Chan:

    Ok. So I guess it is simply it’s open access. Simply refer to mechanisms that allow the distribution of research outputs online that is free of costs and free of other access barriers. And the most common access barriers would be that of copyright. So a key reason for that access is to reduce the barriers to copyright. And so that people can not only access the material for free, but they’re allowed to copy them, who can we use them and to read and we distribute them. So generally, some advocates like to see open access materials with a clear, open license attached to it so that people can make use of them legally without having to worry about the legal implications of that.

    Michael Geist:

    So we’re talking about large amounts of research that typically available via subscription that’s certainly accessible to people who find themselves on university campuses or within the educational community who often buy these bulk subscriptions, which can be very, very expensive. Open access takes that same research and ensures that it’s openly available to anybody who wants to be able to access the access, the scholarly work.

    Leslie Chan:

    Yeah, that’s the intention. So as you know, the bulk of the academic literature, that’s a peer review research literature, is still largely under subscription access model. And so the goal of open access is to reduce the amount of subscription access and increasing the amount of all open access over time. So that’s really the goal because as you said, the subscription is really unreachable for many institutions. Even rich institutions like the University of Toronto can’t subscribe to everything that’s available. And so cost is certainly a big barriers, particularly to poor institutions.

    Michael Geist:

    Now, why don’t we take a step back before getting a sense of where things are at today and unpacking a little bit some of the terminology when we take a step back. Can you walk us through where where the movement, where the emphasis on open access began? How did all of this get started?

    Leslie Chan:

    Well, so as you mentioned, I mean, one of the key reasons the open access movement started was because of the rising cost in subscription over time. And in the last three decades, the subscription, costs have gone up exponentially in many cases. And so there’s been a lot of people or the scholars and librarians in particular has been very concerned about this sort of runaway costs. And think about different, different models, if you will, to access in the research literature. And then along came the the World Wide Web, which is what was kind of a big door opening for this opportunity, because the distribution costs through the well, I worked with the Web. This could be literally zero. And so the idea was that if we could get scholarly literature onto the Web and just use it as a mechanism for distribution, we could vastly reduce the cost of distribution. That was the thinking initially about the open access movement about 20 years ago. And so I would say coincide with really the arrival of the Web and the experimenting experimentation also began in a number of ways, including people putting their own material online, the so-called self-archiving movement that kind of went hand-in-hand or in fact preceded what we call the open access movement. And so some of these experimentation, again, were made possible by the Web itself.

    Michael Geist:

    So the Internet Internet’s transformative in the way that, of course, people access information. And it sounds like the scholarly community saw an opportunity there, particularly in light of increasing costs for subscriptions to say that they could take those same works, make them available essentially at zero cost from a distribution perspective by using by using the Internet. Now, there’s a whole series of different terms that get bandied about when we talk about open access, although we may try to unpac some of those so that we can explain a little bit better. Some of the things that we’re talking about, I guess one of the starting points is when someone wants to publish under open access, a researcher says they’d like to ensure that their work is available. Does that mean that they have to publish in a journal that is itself open access? Or are there different models that they can use so that they can publish in one place but make available their works, let’s say, through the Internet, as you’ve just noted?

    Leslie Chan:

    Yes, indeed. So the Internet allows a variety of options to be made available. So one of the things I mentioned earlier is, is authors putting their own work online to share. So one of the key mechanism of open access is so-called green open access. Is that motto of authors publishing and conventional subscription based journal. That is the journal put out. The official journal article itself may be still on a subscription license, but the authors put a copy of that articles on their institutional repository or repository that is publicly accessible. But it’s also under the agreement of the publishers because many publisher actually allow authors to self archive their paper after publications as well. So this is so-called green, the green models of open access. And then the other common mechanism is that born digital routes so that a lot of journals are now created as open access journals from the start. And so those are often referred to as Gold Open Access Journal, because in that case, the authors publish in this are journals is automatically open access through different business mechanisms. But it is born digital and freely available as soon as it’s available without having the author intervening in terms of putting a copy on their own servers or whatnot.

    Michael Geist:

    Right. So it sounds like, what, at least two different approaches to the latter. One that you just mentioned, the so-called gold open access where the work is born, digital in the sense that it is openly available from the beginning and the journal itself committed to that openness. So if you choose to publish with an open journal, a gold OA journal, you know that the work is going to be made available right from the outset. Whereas many others instances scholars may want to publish in a journal that is not itself open access. But you’re suggesting that publishers allow for the author, for the researcher to still make that article openly available on the Internet, either themselves through their own Web site or self archiving, or increasingly through their institutions who have these so-called institutional repositories who give a place to post those articles online.

    Leslie Chan:

    Right. That’s correct. So so different publishers have different agreement or licensing terms in terms of allowing authors to self archive. And so they they have varying period of what they call embargo periods. And some would have rather long embargo period. But some now very, very liberal embargo period, maybe six months and even no embargo period at all. And so there are a lot of funders and authors who are pushing for this zero embargo model so that they could publish in conventional journals, but also have an open access version available immediately to readers.

    Michael Geist:

    Ok, let’s unpack that just a little bit, because it may surprise some to hear that commercial publishers publishing these journals at the very high subscription costs that you just did, you mentioned earlier on also will build into their contracts with those authors, with the researchers, the ability to self-publish a version of the article online. How did that come about? Where where do publishers generally stand on open access and what are these kinds of contracts look like?

    Leslie Chan:

    Well, I think that it’s hard to kind of generalize across publishers, but I would say by and large, they that for profit commercial publishers are probably the least liberal in terms of the embargo period. That means they probably demand the longest possible embargo period, sometimes two years, sometimes one year. One year is fairly common. And their rationale is that by having that longer embargo period, they would be able to protect their subscription revenue. And then after one year, hopefully then the demand may drop. And so open access is not going to hurt their subscription. And that’s their rationale. But there are studies that actually show that open-access version of these articles actually do not hurt subs, hurts subscription because by and large, these commercial publishers make these package deals with big libraries around the world. And so libraries are committed to paying the subscription fee regardless of the amount OA contents of available through author self archiving.

    Leslie Chan:

    And so. So from a publisher standpoint, it really doesn’t hurt the bottom line. And there are more independent, smaller publisher that understand that. There are what I call authors friendly publishers that would make them available OA version in many cases now immediately open access along with their subscription version as well.

    Michael Geist:

    So we’ve got publishers increasingly recognizing that if their primary market is the academic library market, the academic libraries will continue to buy regardless of an embargo period. The attractiveness of a particular journal for subscription purposes isn’t really linked to whether or not the article happens to be available online or not, in part because all of this gets bundled together. It’s interesting to hear that the publishers have moved in that way. There’s, of course, two other big stakeholders as part of this process. The researchers themselves. And then there are what are called the funders, in a sense, the large granting agencies that help fund this research. When we take a look at what both of their both of their perspectives, where we’re in your sense, do do researchers stand today? Clearly, there are incentives to publish in what might be perceived to be the best so-called journal in their field. At the same time, presumably there’s a strong desire to be read and have an impact as part of my research. How does how does open access influence some of that decision making?

    Leslie Chan:

    Well, again, I think this there is quite a bit across different fields and disciplines. I think by and large, it seems to be stronger awareness about open access and in some of the life sciences and the biomedical sciences relative to the humanities and social sciences. Now, this is not to say that humanities, social sciences are not interested or aware of open access. It’s just that because many humanities research is still published in monographs instead of scholarly journals are so articles, which is primarily a lot of these debate and funding focusing on is not some of the mainstay of humanities scholars. And so we see this disciplinary differences in terms of awareness, but also in terms of their support for open access. And so it’s harder to generalize across disciplines, but I would say by and large, we’re seeing growing a growing number of people who are at least aware of the debate. But still, the level of awareness is quite different.T

    Michael Geist:

    The areas where there is a sense of of greater awareness and perhaps greater usage, like science as you mentioned. Do you have an idea of roughly what percentage of articles are made available in some of those disciplines on an open access basis? In other words, how just how big has this become in certain certain disciplines?

    Leslie Chan:

    Yeah. So I think there was a pretty large scale study that was done last year published in PLOS. And I can send you the link later to find that in the biomedical sciences is almost as much as 50 percent of published articles that are available through open access, either through repositories or through direct or open access. And so that’s pretty high number. And then you do have other disciplines like physics and mathematics that have very high numbers of self archives. OA versions. And then the number is dropped down a bit that when you come down to social science and humanities, I think somewhere in the 20 to 30 percentile at the maximum, some would say even maybe even less 15 percent.

    Michael Geist:

    But in some areas, certainly in some of the sciences, life sciences, we’re talking about quite literally half or perhaps even more of all emerging research is now openly available. I mean, it feels quite transformative in those fields to think that so much of that research is now freely and openly available.

    Leslie Chan:

    Very much so. And I think that the rate of growth, as you see, is very impressive, too. And and I think that a lot has to do with the fact that for a lot of the life sciences and the medical sciences, the funders mandates are a lot more explicit in terms of having a requirement of their grantees to make sure that there are there’s is open access version available. Well, that they, in fact, allow provision to pay or some kind of publication fees for open-access. So among those funders, there’s been a strong push to ensure that the research they fund is openly available, and that’s why you see a much higher percentage of open access publication in those areas.

    Michael Geist:

    That’s very interesting. Let’s drill down just for a moment on that. So in many disciplines, there is a strong correlation obviously between the research and funding that can come from granting councils or or other funders that that provide the necessary funds, the research support for the research to take place. What you’re suggesting with with these funder mandates is that increasingly funders are are effectively demanding that their researchers make their their work that they have now that they’ve funded openly available. Is that is that where these funder mandates are going?

    Leslie Chan:

    Yes. I think the reason funders are demanding this is that they understand that if they funded the research and the research is not accessible, then their funding is really not reaching their maximum impact. So so for them to invest in research, they realize that the research has to be read. That means has to be distributed as widely as possible. Otherwise, the research might just might as well have not been done because if it’s locked up and nobody can discover it.

    Michael Geist:

    Yeah. You mentioned that part of what funders may be willing to fund is part of what I think is often referred to as knowledge dissemination. Making that research available is effectively to pay publishers to ensure that work is is openly available, available under open access. Can you talk a bit about that side of the open access equation?

    Leslie Chan:

    Yeah. Well, I think that’s tends to be the thing where people gravitates towards what they talk about funder support for open access is funders paying for a so-called article processing charge that many publishers are have created as a model for providing direct open access. So there are many journals that are actually completely open access and they’re their business model is to have to pay to publish models so that authors will submit to the journals, pay a publication fee, and then readers are free to read. And so quite a number of journals have completely subsist on this particular pay to publish models. And we’re seeing more subscription based journals are actually combining this model with some of the traditional subscription base as well. And the reason they’re many of them are migrating to this model is because the funders, in some cases, big funders, are willing to say we’ll go. They will support the researchers as part of their grant. They can write in a publication charge for it so that at the end of the research they will be able to pay for publication fees to get their research directly available to the readers.

    Leslie Chan:

    So that’s why we’re seeing a particular growth in this area. But that I should underscore that this is only one mechanism by which open access journal could be supported. There are many, many journals that are supported by other kind of models, directly subsidized, for example, by the funder in terms of for the operating costs of the journals itself. And this is quite common in the humanities and social sciences where funders would actually support the operating budget for some of the journals completely subsidized in that sense so that the authors don’t have to pay for the gold access.

    Michael Geist:

    So it feels like we’ve got this you’ve got three main stakeholders as part of this process. We’ve got publishers who are looking for economic gains, commercial viability in a world where in some disciplines more than half of the materials are openly available online. Sometimes that’s through subscription, sometimes grants through these author fees. And sometimes I suppose it’s through a combination of all of those. There are the funders themselves that are funding the research who say, listen, if we’re gonna fund it, we want to maximize impact and are either willing to help pay for that through these fees or simply say if we’re going to take the money, you’ve got to publish and make it make sure that those works are openly available. And then, of course, we’ve got the researchers themselves. Do we have data on the benefits for the researchers? So researchers may say, if I want I need the grant support. So this is just something I’m going to have to abide by. But is it more than that? Do we have data that suggests that when something is openly available, the impact of their research, obviously the accessibility, their research increases as well?

    Leslie Chan:

    Well, I think in the early part of the open access movement there, there there was a so-called citation advantage of open access publications. And the idea is that if your articles is openly available, people are more easily able to find it and cite it. And therefore, you will have a advantage relative to that non open access journals in terms of citation rate and citation of causes, a common proxy that academia use in terms of measuring impact. So that kind of ideas citation advantage have been a bit of a motivation for a lot of people who want to make that work open access now. And the of course, in recent years we see the rise of social media. So a lot of use of Twitters and other kind of online social media to promote research. And so there is additional argument that if your work is openly available in the first place, these social media can also amplify the attention to your work and therefore translate into citation as well. So we are also beginning to see some research there are documenting these type of differences between open access versus not open access material. So this is where where we’re at.

    Leslie Chan:

    But I should add that you named three key players in this in the current scenario, but you’re missing another actually a very big set of players. And that is, of course, the library itself, because traditionally it is the library that pay the subscriptions on behalf of the researchers in order for them to access the materials that they need. And so libraries have always played a part in terms of mediating that access. And libraries are increasingly. I mean, as I said earlier, they were one of the earlier players in terms of thinking about open access because they know this kind of subscription just not sustainable forever. And so they have been very working very hard in terms of finding alternatives, working with scholars, creating alternatives, open access venues, infrastructures and so forth. The repository are, of course, supported by primarily by librarians. And so there are now also helping scholars to create independent publishing platforms to help them learn how to publish as communities and so forth. So I want to make sure that we include library librarians as a very, very important piece in this OA landscape.

    Michael Geist:

    I’m glad you I’m glad that you made sure that I was that was raised. They’ve my own. You’ve received the University of Ottawa played the lead role in the open access strategy that we have, that which includes support for those that want to publish under open access publishing program with the University of Ottawa Press and of course, raising awareness through things like open access weeks and the like. So you’re absolutely right to raise raise the importance that they’ve played, the centrality that they’ve played in terms of some of these debates, as well as advancing the issue.

    Michael Geist:

    Before we get to a sort of a look ahead just to ensure that we contextualize it from a Canadian perspective. We’ve talked about sort of funders and journals and researchers in the abstract from a Canadian perspective. We’ve got some major funders, particularly coming out of the government, the tri-councils.

    Leslie Chan:

    Where do they stand on support for open access to the Tri-Council, the Social Sciences and Humanities Research Council, the CIHR, the Canadian Institute of Health Research and NSERC, the Natural Science and Engineering Research Council, the three councils where some of the earliest funders, at least from major countries, to have what they call a harmonized open access policy studies. The three councils that agree that they would also require that fundees is to comply with open access provision. That is at the minimum they have to make a version of the publication available within 12 months of publication. But ideally they would like to see immediate open access in either then the green route or the gold route. But these Tri-council, even though they have the policies in place, haven’t really forced them in any strict way. So there’s really not a lot of teeth to these policies. So often researchers or grantees would say, okay, well, you have this policy and then they just go on and do whatever they constable to doing without paying too much attention to the requirements. But again, libraries has been playing a key part in reminding a lot of researchers that if they receive funding from the Tri-Council, they have to do something with their with their open-access compliance. And so they create open repositories in order for the researchers to deposit the work if there are some open access journals that are available in their field. So. So this is where we work mostly.

    Michael Geist:

    It’s interesting what you’ve described over the last bit. The movement on a number of fronts, the role the librarians have been playing, the increasing benefits for researchers and greater awareness depending on your discipline, publishers greater acceptance and of course the role the funders are playing. If you were to think about where we are, where we are likely to be when it comes to open access five, 10 years down the road, we’ve got a sense of just how much things have changed over the last decade. Where do you see the next decade heading when it comes to this issue?

    Leslie Chan:

    Well, I think I’m notoriously bad for predictions, because if we look back at the early open-access movement, I mean, we’re almost reaching the second well, almost the second decade almost over. And of course, even in the first, you know, first 10 years, we were very, very optimistic that in 10 years, fifteen years, much of the scholarly publication will be open-access and that awareness open-access will be will be great. And so on and so forth. But, you know, almost 20 years into open-access, we still see a lot of sort of business as usual. And in the sense that the big publishers actually have gotten much bigger in terms of both their size, but also in terms of their footprint and control of the scholarly publishing venues because they’re able to really dictate a lot of the terms in terms of the journal, ranking journal, impact factors and so forth. Because academics are still largely driven by these incentives of tenure and promotions and so forth, they felt obliged to publish in these commercial publications. And so in that sense, a lot had to change, in fact, that a lot of become even narrower in terms of what what researchers perceived to be their primary sort of goals. And so what I would like to see, rather than what I think would happen in the next 10 years, was that we like to see researchers in academia take back these kind of control over how they define research impact and research excellence and so forth. Instead of allowing the commercial publishers to define for them so that they have to kind of live by their rules. I’d like to see that we take back control of what constitutes quality research. What constitutes excellence? What constitutes community building as as central to scholarly communication and open access. So I’m not sure whether that will happen in the next 10 years, but that’s certainly a big on my wish list.

    Michael Geist:

    And I think it’s certainly obviously a worthwhile goal that many would share along those lines. You’ve just published a book called Contextualizing Openness: Situating Open Science, together with several other editors as part of a University of Ottawa Press and IDRC publication. I know it’s openly available. Can you tell me a bit about that publication? Because it’s a nice fit with what you’ve just been describing, but we’d like to see things head in the future.

    Leslie Chan:

    Yeah. Thanks for bringing that out. So that book is actually a collection of research. That work that was conducted over a three year period and has just ended last year was funded IDRC in Canada and DIFD in the U.K. And the reason we put together that research network was really to examine what we understood to be open access and open science, because I think increasingly we’re seeing a very narrow definition of open access rather than a broadening and expensive definition of open access. By that I mean that when often you mentioned open access, people just jumped to this conclusion. Oh, that means you publish in and pay to pay to publish journals, you have to have APC to publish in open access. Therefore, it’s not for me and it is and is unfair. And so on and so forth. But so so we want to set out to find out what people understand open access and what it mean for open scholarship around the world. And we found that people really have a much more nuanced understanding of what openness and open access means and in fact, than in parts of the world they don’t want to take openness for granted that they will often tell us, don’t impose your open access model on us, because this is not how we like to share our knowledge. There are other ways we would like to share according to our terms. So you can just impose one set of rules from one part of the world on the other part of the world.

    Leslie Chan:

    So that really make us think about open access as in a more critical and nuanced way. And then in fact, many of them reminded us that if this APC, the article processing models were to become more of the norm, it will further marginalize a lot of the poor resource community, particularly research communities in the global south. And in fact, open access, if that would become the norm, would become a mechanism for creating more inequality rather than reducing inequality. So that book was really an opportunity for us to reflect on these very critical issues. Is an open access by whose term and who’s actually going to benefit from from all these standard new new way of doing things. And should we be more thinking more inclusively about other ways of making knowledge and sharing knowledge that we haven’t yet consider?

    Michael Geist:

    Sounds like a really important contribution. We’ll put a link to the book and more information about it, as well as the ability to download it directly on the on the on this episode’s Web page. Leslie, thanks so much for joining me on the podcast.

    Leslie Chan:

    Michael, thanks for having me. And thanks to all the great work you have been doing in educating the public about the importance of all these policy issues.

    Michael Geist:

    That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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    35 min
  • Episode 27: Digital Policy and Election 2019: Laura Tribe of OpenMedia on Where the Parties Stand

    Digital issues were expected to garner attention in the 2019 Canadian federal election campaign. Over the course of the past few weeks, all the main political parties have had something to say about the high cost of cellphone prices in Canada and the prospect of implementing new taxes on tech companies. Laura Tribe, the Executive Director of OpenMedia, joined the podcast to talk about election 2019 and digital policies in a conversation that focused on wireless services and Internet taxes as well as privacy, intermediary liability, trade, and copyright.

    The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.

    Credits:

    Global News, Canada Election: Justin Trudeau Announces Cell Phone Cuts, Change to Taxes

    CBC News, Andrew Scheer’s Full Post-Debate Scrum
    CTV News, NDP Unveils Plan to Reduce Canadian’s Internet and Cellphone Bills
    CTV News, Elizabeth May Unveils Green Party Platform in Toronto

    Transcript:

    LawBytes Podcast – Episode 27 transcript powered by Sonix—the best audio to text transcription service

    LawBytes Podcast – Episode 27 was automatically transcribed by Sonix with the latest audio-to-text algorithms. This transcript may contain errors. Sonix is the best way to convert your audio to text in 2019.

    Michael Geist:

    This is Law Bytes, a podcast with Michael Geist.

    Justin Trudeau:

    Canadians shouldn’t have to choose between having a cell phone and heating their homes. So we need to get to a place where the cost of cell service is more affordable. That’s why a re-elected Liberal government will cut cell phone bills by 25 percent, saving the average Canadian family of four up to nine hundred seventy six dollars a year.

    Andrew Scheer:

    We believe in in ensuring that robust competition in Canada is that we believe that robust competition is the best way to make sure that Canadians have affordable services.

    Jagmeet Singh:

    This is one of the most frustrating things that Canadians go through. We pay the highest amount for our data, for our cell phone bills and for our broadband broadband in the world. This is incredibly frustrating when so many people rely on this. This is something that is necessary for work, for school. This is necessary for accessing services for so many people. So what we’re gonna do is finally take on this very important role that conservative liberal government have essentially neglected. They haven’t taken on making sure these rates are affordable. So our plan is going to make rates more affordable. It’s going to make your cellphone bills more affordable.

    Elizabeth May:

    We’re going to deal with the problem of e-commerce. These companies that first came to us that seemed virtual and cool, and how could they be damaging? Not only are these companies, whether they’re Facebook or Google or Amazon or Airbnb or Netflix, they operate in this country, take billions of dollars of profits out of this country, pay virtually no tax.

    Michael Geist:

    Digital issues were expected to garner attention in the 2019 Canadian federal election campaign. As the clips that opened this episode suggest, all the main political parties have had something to say about some policies, notably the high cost of cell phone prices in Canada and the prospect of implementing new taxes on tech companies. With this episode scheduled to be released less than a week before voting day, I sat down with Laura Tribe, the executive director of OpenMedia, to talk about election 2019 and digital policies. The conversation focused on wireless services and Internet taxes, but we also found time to discuss privacy, intermediary liability, trade and copyright. Note that the episode was recorded in the afternoon on Thursday, October 10th. The Conservative Party had still not released its full platform, so to the extent possible, we relied instead on comments made throughout the campaign.

    Michael Geist:

    Laura, thanks so much for joining me on the podcast.

    Laura Tribe:

    Thanks for having me.

    Michael Geist:

    OK, that’s great. So as you know, we both know digital issues were expected to play a significant role in the 2019 federal election. And as we record this on Thursday, October 10th, we’re eleven days from voting day. I think it’s fair to say that the reality is, has that been a bit more hit and miss. Students on our campus here at the University of Ottawa have been able to vote for several days already. Advance voting starts tomorrow for everyone else. In fact, we still don’t even have a Conservative platform as we record this. So digital on its own may not have been a huge issue, but it does crop up in a few places. You can see it in the different platforms and even come up in a couple in a little bit in some of the debates, or at least the French language debate around things like affordability and wireless services, cultural policy and economic fairness. So I’m hoping that we can unpack some of those issues, recognizing that we’ve got platforms for everybody but the conservatives. But if you haven’t put something forward 11 days before the election, we’ll go with what we’ve got. Why don’t we start with wireless Internet services, which is of all the issues, certainly is probably attracted the most amount of attention largely through the prism of affordability. What are the parties that are saying something saying about the cost of Internet and wireless services?

    Laura Tribe:

    Yeah, I would say this is definitely the issue that’s gotten the most attention. For the longest portion of the election period to date, so far, we’ve heard things from the Liberals, the NDP and the Green Party who are all talking about affordability in their own right. The Green Party hasn’t put forward any really specific policies. It’s just that they want to address affordability and cell phone bills and increase competition. The two policies that have gotten the most attention are the Liberals and the NDP. The NDP who came out with their plan first is looking specifically at lowering cell phone rates for customers by an average of $10 per person. So they want to do that through rate regulation. That will actually require the providers to lower their prices and make sure that depending on the type of plan, it could come down $7 and $12. But across the board, it would be an average of $10 per person. And they’re also looking at introducing mobile virtual network operators or mvno’s, which are a different type of cell phone provider that will bring a bit more competition into the marketplace. The Liberals following suit promised 25 percent off cell phone rates, which, you know, depending on your plan is probably more than $10. But the way they’re going to do it has really been the thing that they’ve been slammed for. And essentially what they’ve said is they’re going to ask big telecom nicely to lower their rates by 25 percent.

    Laura Tribe:

    And I think that’s really something that they’ve been slammed for and deservingly so. They’ve been in government for four years. We’ve been asking nicely at open media and elsewhere for them to lower their rates for a very long time. And we’ve clearly seen that that’s just not going to happen. So that’s sort of the first piece around how they will lower rates. They’re sort of follow up threat if rates are not lowered is that they are going to also bring in mvno’s to try and lower cell phone rates and bring in more competition. But they’ve introduced it in a bit of a phased approach. So what they’re saying is they will bring them in to some extent if they meet certain criteria. Whatever those qualifications might be that the liberals have decided that include things like the infrastructure and the types of plans that they’re offering and a few other pieces, sort of the values they represent, which I think is problematic in that it’s hard for a company to necessarily match a political party’s values in the same way. But that’s sort of a really minimum entry. And they said that if in two years the cell phone prices have not come down by 25 percent, then they will look at fully mandating mvno’s. And so those are sort of the two biggest platforms. We’ve heard nothing from the Conservative Party other than I think in one article when they were asked. They said they would consider tax rebates with no indication as to what that meant or looked like or how that would work.

    Laura Tribe:

    But I think that fundamentally when it comes to cell phone affordability. It’s really good this is an issue and I will be the first to criticize the policies they’re putting into place to try and do it, but it’s something that people have been talking about for decades and it’s really good to see that it’s on the agenda. I think the problem is that the way the parties are trying to do it and in part it’s just because it’s an election cycle and they’re trying to make sure they can get to voters is by promising the end piece, which is how it will impact your cell phone bill. And really forgetting why our cell phone bills are so high in the first place, which is fundamentally because we do not have enough competition in Canada. And so, you know, the NDP understands there will need to be some government intervention, which is good. They’re talking about mvno’s, which is good. But there is a proceeding in front of the CRTC right now that’s reviewing all of our wireless services and trying to figure out if we do need mvno’s. And I think it’s in all cases really great to see that ? registered, but also raises some questions about if they actually understand why this is the case and how to fix it or if they just think it sounds like a nice promise.

    Michael Geist:

    Right. So, I mean, I agree with you. I think it is good that the issue clearly resonates. And I know that there’s been a number of political commentators have said this is one of the issues of all these issues the parties have been raising that they can see it resonating in part because people can really relate to high cell phone bills. There’s there there’s very little debate anymore as to whether or not we pay very high rates relative to other countries. And so promises to do something about it would intuitively seem attractive. I guess the question becomes, is any of this going to work? So let me ask you a couple of specific questions on the. From the NDP perspective, the rate regulation side, have they talked at all about how that would work, how if they were if we were to have government come in and effectively set rates or set maximum rates or set with the mandated reduction in the rate happens to be? It’s not clear. Have they specified how they would intend to go about doing that?

    Laura Tribe:

    There haven’t been a lot of details into how they would do it. I know they’ve been trying to demonstrate other countries that have had mvno’s mandated and trying to point to those as examples. Not so much in saying they would do it exactly the same way, but to try and say we know that intervention and regulation on mvno’s can work. I think the question in the way that they are approaching mvno’s and the way that they’re approaching affordability in general is that they’re coming at it from the end retail price. And fundamentally, mvno’s are about competition. They’re about bringing more providers in, hopefully lowering the rates themselves. And so I think, you know, getting really deep into the policy weeds of telecom, there’s two layers to that. Mvno’s need wholesale rates to be set, which are then indicative of what the retail rates can be set at. And so it sounds like the NDP is working in reverse. They’re actually saying, here’s it, we want the retail rates to be set at. And there’s an assumption that is not from what the NDP has said, but just in understanding how telecom works, that they will then have to work backwards and say, if we’re going to bring all the retail rates down by 10 percent, then any rates that are for roaming or wholesale will need to therefore be X percent lower to make sure that we can’t increase competition. It’s a pretty complicated approach to fix all those layers. It would definitely require the CRTC to be involved, although that hasn’t sort of how that would work together hasn’t explicitly come out from the NDP. A lot of it’s trying to apply what I know and we know about how telecom policy actually works in Canada to the promises that are being put forward and trying to reverse engineer how it would actually play out.

    Michael Geist:

    Right. Okay. So the NDP promise focusing on prices faces some real implementation challenges. The Liberals have both this notion of we can cajole or talk or talk to her, convince the the incumbents to lower their prices. And I think you’ve made it pretty clear, as most would, that that historically hasn’t didn’t seem to work. And there’s little reason to think that that it would work now. So it sounds like a lot of this talk is being placed in mvno’s as the source of competition. But it sounds as well that with respect to the liberal plan, even that isn’t an immediate solution. It’s kind of like will dip our toe in the water. And if it works, great. And if not, we’ll do more that kind of what they’re saying.

    Laura Tribe:

    Yeah, I think that the Liberals have set the bar for something that is probably going to be achieved with or without them. So their election promises that they can check off when it comes to prices coming down by 25 percent. If you look at your cell bill right now and I think you’re just going to get a 25 percent discount when the Liberals get voted in, I think you’re wrong. But what we do know is that the data that we have right now is so far behind in Canada that there are some that believe and I do not have the evidence to prove this, but there are some that believe that the prices have already come down enough that the liberals will be able to say that they did it just by virtue of when the data is published next. So that’s a, you know, bar they can say that they reached. And when it comes to mvno’s with the CRTC already looking at MVNO is already having them on the table. Essentially what the liberals have promised is the minimum viable product out of that consultation. Which again, doesn’t require them to do anything. It’s just predicting the writing on the wall from the CRTC, whose own consultation and then saying in two years if nothing has happened on those two fronts. Then they will take action, which to me reads like they’re not going to touch telecom for two years, which is why it’s pretty frustrating as someone who’s been working on this for so long to hear them say that we have to keep waiting.

    Michael Geist:

    And it’s a bit surprising, I think, from a liberal perspective, because it’s not as if they haven’t done anything on telecom or at least tried to do something on telecom. When we think of the policy direction or the requirement that CRTC re-examine some of these issues, you’re talking about MVNO’s. The Liberals have tried to push for that. So one would have thought they might have been able to say we’ve been pushing and trying to move in this direction. Here’s what we’re gonna continue to do. They seem to have sort of almost ignored much of what they’ve done in the past in favour of, as you’re suggesting, policy recommendations that they don’t really have to do very much about.

    Laura Tribe:

    Yeah, I think the the policy direction that now requires the CRTC to take things like customers into consideration, which is not the case before, to make sure that affordability is a consideration that they’re looking at for smaller providers like those are really big shifts that we haven’t had a chance to see if and how they truly play out at the CRTC. So there is a really good chance that by virtue of that policy direction, the CRTC is on decision on wireless actually is much better for customers, for smaller providers by virtue of following the policy direction. And there are a lot of pieces that have been put into play, but fundamentally this government’s approach to the CRTC has been like we will keep asking them and hope they get it right. So they have sent the decision on mvno’s back to the CRTC and then when they didn’t get a right kind of like, okay, next tactic and keep sending messages to this year ATC. And I think fundamentally what this platform shows me is that they are unwilling to just own it as a file, that they want to make sure that they are continuing to leave that to the CRTC to solve. And I think that it’s going to take a while to see if the policy direction actually works and where those decisions come to you. But the CRTC is not a fast moving institution. Their decisions understandably take a really long time and we’re not going to see change overnight no matter what the decision is that comes out of the CRTC is wireless proceeding.

    Michael Geist:

    Well, I mean, as you say, it’s good that the issue is is now risen to the level being a true political issue, but I suppose a little discouraging in the sense of some of the solutions that are being proposed because it doesn’t seem like they’re advancing things all that much. One of the other issues that has also attracted some amount of attention, although I think with a fair in a fairly confusing way, is what’s often described as a Netflix tax, which often is said to mean different things. In fact, just this week as we’re recording it, there was, I think, more confusion, where the OECD, advanced the ball a little bit in terms of dealing with corporate tax. And I noted at least one article that said that had at least a couple of political parties saying, well, we want to go further than the OECD. But what they were talking about was not necessarily what the OECD was dealing with to begin with, which is part of the challenge where there’s a catch all term and it’s taken to mean any number of different things. So can you tell us a bit about what are the parties have had to say generally about either a Netflix tax or perhaps even more broadly? We can unpack it that way. Taxation, digital services and I guess Canadian content gets thrown in there as well.

    Laura Tribe:

    If we could put the definitions of a Netflix tax and Internet tax, sales tax, all of the taxes to rest once and for all, it would be beautiful. But I think the Netflix tax is a catch all phrase that came up in the last election with Stephen Harper, which is fundamentally a tax on over-the-top streaming services like Netflix that would have to pay and to fund Canadian content in the same way that cable providers do. Now, in the last election, it was very clear that was off the table over the entire course of the Liberals last four years. Everything we’ve heard out of Canadian heritage was that everything’s on the table except a Netflix tax that was always the one thing that was off the table. And we’re seeing it start to creep up again in this election. But over the past four years, taxing things like Netflix to make sure that they’re paying into Canadian content has always been off the table. Other things that we have seen coming up since that all get looped into that Netflix tax bucket are things like an Internet tax or an ISP levy that would require all Internet service providers to pay into Canadian content the same way that cable providers do with the idea that people are cutting the cord and using the Internet. So therefore they must be using the internet to stream content and we must make them pay into Canadian content. That’s something that fundamentally OpenMedia does not support. We already pay some of the highest prices in the world for Internet, which is why we’re talking about cell phone prices, why we talk of Internet prices. And there is no question those fees would be passed on to customers.

    Laura Tribe:

    It also implies that the Internet only has one purpose, which is for streaming Netflix, which is not the case. It would require businesses who have servers to be paying into Canadian content by virtue of trying to host data for their own companies. There’s a ton of examples as to why it doesn’t work. We also have sales tax, which somehow never gets put into the conversation, even though it’s the most obvious solution for a lot of these. And that’s really around companies like Netflix, Amazon, International companies that operate in Canada with services that are not charging their customers GST or HST and therefore not remitting it to the government. That one is mostly not the case because it’s just been hard for governments to figure out how to enforce it, but there’s nothing fundamentally stopping them from doing it. And it does look like in this election the Liberals have put that back on the table. So it does look like sales tax will be in consideration.

    Laura Tribe:

    And then we also have the new tax that the Liberals declared around online advertising, which is a 3 percent tax on all of the major online advertisers. I don’t remember what the billions of dollars they have to make ad revenues to qualify for, but that would be an additional 3 percent tax. And depending on how you read the comments from the Liberals and the NDP and the Green Party, there’s a really good Q&A with them on big tech in the Toronto Star. Reading through their own platforms, they are all consistently vague and ambiguous on them, but it looks like the Netflix tax is very much back on the table to require everyone to pay into the Canadian content system, as well as requiring companies like Netflix, like YouTube in some cases, depending on how you read it, to actually produce the same amount of Canadian content that cable providers are as well. And so, you know, there’s we can get into as deep as you want any one of them. But fundamentally, the policies that seem to be on the table right now have taken us back to an era before the 2015 election and actually seem to be taking us back into an era of cable TV where instead of being able to look at what the Internet looks like now and how we want the world to look, instead of having these sort of forward looking, innovative policies, we’re just stuck and going back to how do we make it look more like the thing that we’re used to on TV because we don’t know what to do with us. So it’s pretty discouraging.

    Michael Geist:

    Fair enough. So just to make sure because, you know. Outlining the various tax proposals that are out there, but I take it on the sales tax issue. So applying it to foreign services that don’t have a presence here, of course, if when we’re talking about sales taxes are not paying sales tax themselves or merely collecting or collecting and remitting on behalf of their customers. That sounds like that’s on the table really for all the parties that have a platform at this point in time, they’re all willing to say we need a level playing field with respect to sales tax. Yeah. Okay. So we’ve got that on the.

    Laura Tribe:

    Haven’t heard anything from the Conservatives or. I haven’t heard anything from the Conservatives. I know definitely from the Liberals and it’s been implied from the other party.

    Michael Geist:

    Fair enough. I think actually Scheer may have, Conservative leader Andrew Scheer may have provided some indication that they’re willing to look at this as well. But you’re right, as we record this, we still don’t have a platform, so we don’t know what if that’s the case or what it looks like. And in a sense, it’s a good illustration of why it becomes a problem, because these issues become take on different mean different things to different people. It’s really helpful to get a clearer articulation to extend to which we get a clearer articulation of where things stand. So say it sounds like digital sales taxes are on the way pretty much regardless least of the parties that have put that forward. Yeah, the corporate tax, it sounds like the various parties are also at least entertain the possibility of saying we want to find ways to ensure that large international technology companies who have the ability to move dollars around more easily perhaps than others, that they pay some amount of essentially corporate income tax in Canada. By way of some sort of levy or something like that, although back I guess could be worked on internationally first. Or maybe Canada just jumps in and says, this is what we want until there’s an international solution.

    Laura Tribe:

    It sounds like all of the parties are on board for following the international solution and trying to figure out how to go further. But that’s about the level of detail you’ve been given. And getting into more specifics, I’d be trying to guess.

    Michael Geist:

    Yeah, no, that’s and then that’s fair in this part of the problem. Is it. Yeah. You know, there’s there’s there’s votes to be had at least the parties seem to think there is by saying that you’re going to prepared to take on Big Tech so to speak. But the specifics sometimes are missing. It’s that last one that becomes I think really relevant, this issue of whether or not there are mandated contributions, which was, I think the original thinking behind what a Netflix tax to Stephen Harper did that somewhat cheesy video about no Netflix taxes and how he was a fan of Breaking Bad. So it sounds like the parties have shift in that regard. So, for example, the current government, a Liberal government, Pablo Rodriguez previously and he’s been his predecessor, Melanie Joly seemed to be hedge a little bit when it came to these issues. Take it, Mr. Rodriguez and the party itself have kind of jumped in more aggressively about the prospect of mandated payments.

    Laura Tribe:

    Yeah, it looks like the line of if you’re benefiting, you have to pay, I think which you’ve dealt with previously and talk much about seems to be their underlying principle. And there’s ways to pick that apart for a whole other podcasts. But it looks like there there are multiple layers of how they’re trying to go about it. So they want financial contributions into the Canadian Media Fund to be coming from international over the top providers, which could include not just Netflix, but Amazon Prime, Disney plus if it comes to Canada and as it comes to Canada to paying into the system. But then there’s a second layer, which is also to require them to provide the same amount of Canadian content that TV providers are actually required to have, which I think raises a lot of questions around what would a Disney plus rollout in Canada look like when Disney doesn’t have a very large Cancon catalog? And what does Cancon mean? And I think that’s the piece that has really been missing in the conversation when we’re talking about Canadian content and then looking at something like YouTube, where there is a ton of content that’s on there by people in Canada who are Canadian made in and about Canada. But because they don’t meet sort of the industry’s qualifications of Cancon wouldn’t count. And so I think there’s a lot of questions around not just what does it mean to have them hosted, but if you’re Netflix and all of a sudden, you know, there’s been a lot of criticism about Netflix deal with Melanie Joly and how they said they would invest more in Canada. And it was a four year deal and they’ve already done it in two and they’re proud of how much they’re investing in Canada. But does it count as Canadian content? And if you’re Netflix and let’s say that 10 percent of your catalog is Canadian, but you have to hit 30 percent. Are you gonna go make 20 percent new Canadian content or are you going to drop part of your catalog that’s available to Canada? And so I think there’s a lot of questions around what that actually does to our access to content in Canada by making those contributions and really fundamentally threatens the idea of what it means to have an open Internet. When you’re mandating what people need to be providing and obligations of content being put online.

    Michael Geist:

    Right. So it really does get into that Internet regulation writ large when it’s early if you start getting into what you’re required to do. And I know that there’s been talk certainly of requiring promoting of Canadian content, perhaps having a certain amount of Canadian content as well as, of course, funding that Canadian content. What is all of this say with respect to the government’s broadcast and telecommunications legislative review panel? Because these are the kinds of issues that the government had, depending on your perspective, either punted or at least wanted to ensure got a fulsome review by an expert panel that struck this panel. We’ve now had at least an interim report from the panel. But it sure feels like at least when it comes to liberals and I suppose with all the parties that have at least put forward platforms, that they’re in a sense not even looking to wait to hear what this panel has to say, they’ve already decided what they want to see done.

    Laura Tribe:

    Yeah, it’s really frustrating. Minister Rodriguez comments in June when the butyl our panel put out their interim report was a real shot at the people who participated as an organization that funneled thousands of people’s comments into this and, you know, as an act of good faith took the government at its word to say, we want to let the experts think about it and we want a fulsome review to have halfway through the minister, who is in charge of half of this project say that’s great, we can’t wait to do this thing. We’ve already decided. So looking forward to your final report. It felt like a slap in the face. I think. All of the parties that have comment on this obviously have a position on what they want to see come out of the report. If any changes are made, the ones who actually seem to have the strongest view are the liberals who actually implemented the overhaul and the review itself, which seems the most confusing because they’re the ones who said we want to wait and see. And now they’re the ones who seem to have a vision predetermined. But fundamentally, even when the report is done and it’s due at the end of January, that will take into consideration recommendations for everything that needs be changed on broadcasting and telecommunications. That’s just the start. That’s just really the recommendations. And in the same way you got recommendations from committees back to government, it’s really up to the government of the day to decide what to do with it. And so as frustrating as it is to have political parties trying to predetermine an outcome, it is an election. And it does mean that at least we know who we’re voting on, who’s going to be picking up this ball when when it comes to them. But it looks like regardless of where you stand, people have decided this is something they need to have a really strong position on. And I hope that I really, really hope that the report that comes out from the BTLR panel does take into consideration what they heard. It does take into consideration where we need to go and does not take into consideration the political context, because that’s the second phase of the fight.

    Laura Tribe:

    And right now, this is really looking at a system that is the foundation of all of our communications in Canada. It’s how we talk to each other. It’s how we do business. It’s everything about how we operate now. And it can’t just be a political football that we’re using to toss around. So it’s it’s been really discouraging to see it politicized, but it’s also not that surprising. And hopefully over the course of this election, whoever forms the next government or takes into consideration that, you know, this was something that people went into in good faith.

    Michael Geist:

    Now, that’s really well said. And I suppose we will have to wait a few months to see what the report says, and of course, less than that to see what the government happens to be. But it is, I think, for a lot of people and I participated as well, discouraging to see the the government, at least the government. But it really almost all the parties sort of take a stake on where they want to where they want to see things go in effect without really taking into account this entire process. What do we do four Quick Hits on other on other issues we really unpack. I think these were the really the two biggest that have captured attention, the next four less so. But let’s just make sure we cover all of our bases. Privacy is an issue that people talk a lot about. Has there been much from any of the parties with respect to what they may do on privacy?

    Laura Tribe:

    Privacy is the one they’ve been the most quiet on. I would say when it comes to Internet issues, the Green Party has actually issued the most fulsome plans on privacy of any of the parties to date with a lot of ideas around strengthening the privacy commissioner and their powers, a lot of pieces around making sure that there are data protections in place. I think the one thing that is of concern in the Green Party platform is removing anonymity online for social media platforms. I think it’s well intended to try and curb bullying and a lot of harassment online. But fundamentally, anonymity is something that is critical for people who who are the most marginalized in a lot of cases. And so I think that’s something that, while well-intended, might not have come across correctly in the people they were trying to help. The conservatives have said that they will launch a new parliamentary committee around cybersecurity and data privacy with no details on what that looks like. The Liberals have talked a lot about privacy around innovation and data and what that looks like in it’s part of their new digital charter. But it’s really vague on what that actually means for me is as an individual and as a user, there’s not a lot of clarity around how we can minimize the amount of data being collected. And fundamentally, the biggest criticism I have of all of the parties on privacy is that not a single one of them, with the exception of the Green Party, thinks that they should be held subject to any privacy laws. And in an election when they are collecting data on us, when they are, you know, using it to try and target us and manipulate us to get our votes. The fact that they’re holding themselves to a lower standard than they hold anyone else is appalling. And someone who’s trying to uphold democracy. So I think that’s my biggest criticism across the board, with the exception that the Greens have said they would bring that. It wasn’t that fast for your rapid fire.

    Michael Geist:

    No, that was great. And no, and I and I certainly agree with you, have been a recipient of clearly targeted stuff, which raises some questions, too. And I think a lot of Canadians have. There is a long history of political parties of all stripes being willing to impose certain obligations on the private sector, but unwilling to take them on themselves. I mean, that’s that’s been the case for years. When it comes to political parties closely related to this is that question of platform liability. You touched on it a little bit with respect to the Greens, anything else in terms of hate speech or other sorts of rules when it comes to what.

    Laura Tribe:

    We have seen, the liberals say that they will require platforms to take problematic content down within 24 hours and they give a specific definition of what that problematic content would be. It includes hateful content, terrorism content, terrorism related content, incitement to violence. A few others that I can’t recall at the moment. But, you know, fundamentally trying to follow in the steps of some European models and following the German model of a 24 hour takedown notice. I think the questions that come up and it’s actually a little surprising that content, moderation and some of these issues haven’t been more central in the election. But I think the biggest question around that is whose job is it? Is it the governments or is it the companies? And I think that the government don’t want it to be theirs. They’re trying to incentivize the companies to do it, and the companies don’t want it to be theirs. They’re really trying to wait until the government makes them do it. And I think that’s where we’ve gotten into a lot of the mess that we’re in now.

    Michael Geist:

    That’s that’s perfect. That that fits well with the Quick Hits. Digital trade, digital trade policy, the USMCA. Obviously, there was a fair amount in that trade agreement we’ve had in some of the other trade agreements, a CPA TPP in the European deal as well. Are any of those digital provisions at risk, including copyright here? Of course, with copyright term extension. The party said much about what they would do with these trade deals.

    Laura Tribe:

    You’d probably know the answer to this better than I will. But fundamentally, what we’ve heard on the trade deals is if you’re the liberals, you think it’s a good deal. And if you’re not the liberals, you think it’s a bad deal. Not a lot of talk around the digital issues themselves. Not a lot of talk around the IP provisions. Most of it seems to focus on dairy and a lot of those issues, even though there’s a lot more free trade agreement than just dairy. But it hasn’t really come up in terms of what’s wrong with the deal. We’ve seen the parties really stick to their talking points around good and bad and haven’t seen a lot of detail on that.

    Michael Geist:

    No, I think that’s why I haven’t seen really anything either. It is rather remarkable for people who’ve been following Canadian politics for some years. I mean, we literally had full elections that were primarily about trade agreements. And here in those last mandate, we’ve had three trade agreements either closed or negotiated, which fundamentally transform our trading relationship pretty much with the entire world. And yet, as you suggest, there’s been practically no talk about it other than it’s good or bad without getting into any any level of detail. The one other issue that also is attracted at least some amount of attention over the course of the mandate, most recently with a year long review, was copyright law. The reviews themselves, the review itself coming from the industry committee and there was a supporting document that came from the Heritage Committee, came too late for the government to respond, or at least by the time it was released, the government wasn’t required to respond. And so it won’t. Has copyright come up at all?

    Laura Tribe:

    I haven’t seen much talk about copyright, and for something that took well over a year to study that had, you know, cross party examination. It hasn’t had much discussion this election. But I also think it was so thoroughly studied by the industry committee. That is a cross-party committee that actually put a report forward that had multiple parties saying we think this is a good plan, that it’s not an area of division. In the same way that I think a lot of the other issues that are coming up in this election are. And so without a really clear way to try and distinguish yourself in the other parties, it makes it really hard for it to be an election issue. So we’ll see what the next government does with the recommendations that came from the committee. But it it hasn’t been as divisive as an issue as it has been in the past.

    Michael Geist:

    I think that’s a great point, because you had that really extensive study. The committee representing all parties in the parties all came on board with those issues. And so perhaps that’s. Why it’s not. There’s not enough of a wedge there to make much of a difference. Laura, thanks so much for joining me on the podcast.

    Laura Tribe:

    Thanks for having me.

    Michael Geist:

    The Conservative Party released its election platform on October 11th, one day after this podcast was recorded. The platform does not discuss wireless or Internet affordability, limiting its communications policy to rural broadband issues. The platform also doesn’t discuss a digital sales tax or mandated Cancon contribution, often referred to as a Netflix tax. It does, however, envision a 3 percent tax on global technology companies such as Facebook, Google and Amazon. The conservative platform includes several new policy proposals, including rules that would hold parents liable for cyber bullying by their children and requirements for plain language privacy policies. There is no discussion on further Internet platform liability or copyright reform.

    Michael Geist:

    That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.

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    37 min
  • Episode 27: Digital Policy and Election 2019: Laura Tribe of OpenMedia on Where the Parties Stand
    Digital issues were expected to garner attention in the 2019 Canadian federal election campaign. Over the course of the past few weeks, all the main political parties have had something to say about the high cost of cellphone prices in Canada and the prospect of implementing new taxes on tech companies. Laura Tribe, the Executive Director of OpenMedia, joined the podcast to talk about election 2019 and digital policies in a conversation that focused on wireless services and Internet taxes as well as privacy, intermediary liability, trade, and copyright.
    The podcast can be downloaded here and is embedded below. The transcript is posted at the bottom of this post or can be accessed here. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod.
    Credits:
    Global News, Canada Election: Justin Trudeau Announces Cell Phone Cuts, Change to Taxes
    CBC News, Andrew Scheer’s Full Post-Debate Scrum
    CTV News, NDP Unveils Plan to Reduce Canadian’s Internet and Cellphone Bills
    CTV News, Elizabeth May Unveils Green Party Platform in Toronto
    Transcript:
    LawBytes Podcast – Episode 27 transcript powered by Sonix—the best audio to text transcription service
    LawBytes Podcast – Episode 27 was automatically transcribed by Sonix with the latest audio-to-text algorithms. This transcript may contain errors. Sonix is the best way to convert your audio to text in 2019.
    Michael Geist:
    This is Law Bytes, a podcast with Michael Geist.
    Justin Tru
    37 min

About Law Bytes

From the publisher's feed

In recent years the intersection between law, technology, and policy has exploded as digital policy has become a mainstream concern in Canada and around the world. This podcast explores digital policies in conversations with people studying the legal and policy challenges, set the rules, or are experts in the field. It provides a Canadian perspective, but since the internet is global, examining international developments and Canada’s role in shaping global digital policy is be an important part of the story.

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