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Law Bytes

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Law Bytes episodes

  • Episode 16: The Copyright Review Report: Carys Craig on the Roadmap for the Future of Canadian Copyright Law
    In December 2017, the Canadian government launched its much-anticipated and much-lobbied review of Canadian copyright law, tasking the Standing Committee on Industry, Science and Technology to lead the way. After months of study and hundreds of witnesses and briefs, the committee released its authoritative report with 36 recommendations earlier this month. Carys Craig, a law professor at Osgoode Hall Law School and one of Canada’s leading copyright law experts, joins the podcast to help sort through the report and to consider what it means for the future of Canadian copyright law.
    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.
    Episode Notes:
    Standing Committee on Industry, Science, and Technology, Statutory Review of the Copyright Act
    The Authoritative Canadian Copyright Review: Industry Committee Issues Balanced, Forward-Looking Report on the Future of Canadian Copyright Law
    Credits:
    House of Commons, June 3, 2019
    Transcript:
    Law Bytes Podcast – Episode 16 | Convert audio-to-text with Sonix
    Michael Geist:
    This is Law Bytes, a podcast with Michael Geist.
    Dan Ruimy:
    Thank you Mr. Speaker. I have the honour to present in both official languages the 16th report of the Standing Committee on Industry Science and Technology entitled statutory review of the copyright
    39 min
  • Episode 16: The Copyright Review Report: Carys Craig on the Roadmap for the Future of Canadian Copyright Law

    In December 2017, the Canadian government launched its much-anticipated and much-lobbied review of Canadian copyright law, tasking the Standing Committee on Industry, Science and Technology to lead the way. After months of study and hundreds of witnesses and briefs, the committee released its authoritative report with 36 recommendations earlier this month. Carys Craig, a law professor at Osgoode Hall Law School and one of Canada’s leading copyright law experts, joins the podcast to help sort through the report and to consider what it means for the future of Canadian copyright law.

    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.

    Episode Notes:

    Standing Committee on Industry, Science, and Technology, Statutory Review of the Copyright Act

    The Authoritative Canadian Copyright Review: Industry Committee Issues Balanced, Forward-Looking Report on the Future of Canadian Copyright Law

    Credits:

    House of Commons, June 3, 2019

    Transcript:

    Law Bytes Podcast – Episode 16 | Convert audio-to-text with Sonix

    Michael Geist:

    This is Law Bytes, a podcast with Michael Geist.

    Dan Ruimy:

    Thank you Mr. Speaker. I have the honour to present in both official languages the 16th report of the Standing Committee on Industry Science and Technology entitled statutory review of the copyright act pursuant to Standing Order 1 0 9. The committee request that the government table a comprehensive response to this report. Mr. Speaker I’d also like to thank all committee members, all those that appeared before committee, those that took the time to meet with us and our five city tour, and those that took the time to submit online documents. The committee consulted a broad range of stakeholders to ensure as many perspectives could be considered. In all we held 52 meetings her two hundred and three sixty three witnesses collected one hundred and ninety two brief and received more than 6000 e-mails and other correspondence. I also want to thank our committee’s clerk, analysts and all the supporting staff for doing such an amazing job keeping us on track through such a lengthy and complex study. Thank you.

    Michael Geist:

    In December 2017, the Canadian government launched its much anticipated and much lobbied review of Canadian copyright law, tasking the Standing Committee on Industry Science and Technology to lead the way. After months of study and hundreds of witnesses and briefs the committee released its review with 36 recommendations earlier this month. The report takes a decidedly evidence based approach and is notable both for what it recommends and rejects. Recommendations include expanding fair dealing and adding flexibility to Canada’s digital lock rules. While the committee rejected a Web site blocking system and a proposal to exclude education from fair dealing where a license is otherwise available. I had the chance to appear before the committee. My remarks were the subject of an earlier Law Bytes podcast as did this week’s guest Osgoode Hall law professor Carys Craig. Professor Craig is one of Canada’s leading copyright law experts and she joins me to help sort through the report and what it means for the future of Canadian copyright law.

    Michael Geist:

    Carys, welcome to the podcast.

    Carys Craig:

    Thank you for having me on.

    Michael Geist:

    After a year of studying the copyright review with hundreds of witnesses and briefs the Standing Committee on Industry Science and Technology that everyone just calls INDU has finally released its report. Why don’t we start with a background of how this came about: so why was there a copyright review and who exactly is INDU.

    Carys Craig:

    Okay great. So yes this is the culmination of a five year review that was actually mandated by the 2012 Copyright Modernization Act. And so when that was passed itself the result of many years of consultation and consideration of potential reforms. The notion was that it would be worth revisiting in five years to understand the way in which the act was taking shape how it was being applied. And of course bearing in mind the sort of rapidity of technological change. So five years rolled around and the committee was struck in order to conduct this review and that itself took some considerable time. So it’s only now in twenty nineteen of course that we’re finally receiving this report.

    Michael Geist:

    Okay. So the the initial law or at least the reforms back in 2012. Got to review this every five years it takes a couple takes some time to get it going. They went with INDU and so that’s the industry side. And I imagine that there was some debate at least internally and certainly externally about which committee amongst the potential committees I suppose that the government that the House of Commons has that they chose to conduct this study.

    Carys Craig:

    Yes that’s right. So in Canada there are two ministries that kind of have an eye on copyright policy. So that is the Heritage and the Industry Science and Technology Ministry. And so there’s always been a degree of and I think maybe it’s fair to say tension in terms of who takes the lead and certainly what we’ve seen over the years is that both ministries have a kind of different approach to copyright policy and so that means it can make kind of a vital difference which industry or which ministry sorry takes the lead in copyright review and copyright reform, which is of course exactly what we’ve seen in this particular process.

    Michael Geist:

    Right. So industry led but there is also a study report that the committee for Canadian heritage, a standing committee of Canadian Heritage released. It was supposed to be on artists remuneration but has at least been painted by some as the copyright review or a parallel copyright review. I don’t believe it is. Actually I know it isn’t. The copyright review is the report that INDU released. Can you walk us through a little bit the procedural side of the story that led that led to this Heritage study.

    Carys Craig:

    Sure. Well I mean this is just as far as I know as far as I’ve been able to glean. But certainly the industry committee was tasked with conducting the sort of authoritative parliamentary review of the Copyright Act and perhaps in some ways as a salve to any criticism that should have gone to heritage or heritage ought to be involved I don’t know, and the industry committee requested an advisory sub report. I think that’s the best way to understand it. And from the Canadian Heritage Department and so the the sense was that this was to be as you said an examination of remuneration models for artists and creative industries looking at things like rights management, considering things like new access points, streaming and and reflecting then on some of the challenges and opportunities presented by these new technologies in light of you know that the economic interests of artists and creative industries. Now there’s an awful lot of interesting work being done on the ways in which access to content is shifting, consumer behaviours are shifting, and the way in which new technology is providing new opportunities or avenues for remuneration or exploitation at the same time as it’s threatening old ones.

    Carys Craig:

    So there really was I think a lot of scope to produce a very interesting, thorough survey of these changes in a way that really could have informed a copyright review process and really made sure that it was a sort of modern review process that had its eye on where things currently stand in technology and in the economy of the cultural industries. As you suggested that’s unfortunately not what we got and I think the reason why people see this review report from heritage as a parallel report is that it essentially seemed to cover the same ground as the industry committee was was covering. But of course to do it from a very different perspective and with a very different result. And I think that at the end of the day is just unfortunate. And it’s a missed opportunity. But I think the main thing is of course that the authoritative review comes from the industry committee.

    Michael Geist:

    All right. I’d agree with that. So now that we understand what that Heritage study is or isn’t, let’s talk let’s talk about the authoritative review the actual Canadian copyright review conducted by INDU. For me it was striking when you took take a look took a look back at it just how broad it was truly ran for a long time. There were hearings held in cities across the country something you didn’t see with Heritage, multiple phases and both of us participated in the third phase where they brought in some of the academics and the like and it touched on just about every major copyright issue. I wonder what some of your top line impressions or key takeaways were from the report.

    Carys Craig:

    Well certainly it was very broad. It was extremely thorough and it really is impressive I think the number of people who were able to sort of weigh into the review process, who were able to make their submissions, have their testimony heard, and ultimately the fact that really everyone who provided oral or written testimony is cited in the report. So given this vast landscape that this covers and the number of perspectives that were considered and I think the review although it’s long actually does a really nice job of sort of crystallizing the primary or the main issues that are facing as when we’re thinking about copyright law today and and and creating a sort of overview of the current landscape that is going to be very valuable I think going forward. And it’s not surprising when we think about the process that led up to the 2012 act itself. As you know there are many bills there was much consultation that took many years and it was an attempt to to bring Canada quote unquote up to date with technological developments by finally sort of ratifying the 1996 Internet treaties and following the lead of the US Digital Millennium Copyright Act. And so there was an awful lot that was done in 2012. That itself created lots of new lots of new considerations and concerns and copyright law.

    Carys Craig:

    So first of all we had new protections for digital locks which we’d never had before. We had a notice and notice system that was a sort of Canada made solution to navigating copyright for Internet service providers. We had a new cause of action called enablement infringement for the provision of network services that primarily enabled copyright infringement by users. And then on the other side of the ledger we had an expanded fair dealing defence with new enumerated purposes of education and parody and satire and we had lots of new exceptions for common consumer uses like making backup copies and time shifting TV programs and making user generated content. So there was a lot there and there was a lot that needed to be revisiting. And of course there were people who were happy with one side of that and not with the other.

    Carys Craig:

    And so if nothing else what this five year review gave us was an opportunity for everybody to kind of come out and talk about the good and the bad and the ugly as they saw it in that 2012 act and hope that they could maybe expand what they saw as good and roll back what they saw as bad. And so you know there was a lot at stake here and there were lots of people with interests and that they wanted to be represented around the table.

    Michael Geist:

    Right. I’m glad you you enumerated so many of the changes that took place in 2012. I’m often struck by those that claim that Canadian copyright laws are woefully out of date and we haven’t made changes in a long time and as you went through that very long list of changes it was a true overhaul in 2012. We are still quite clearly grappling with very recent changes that were comprehensive in nature and so was it’s worth noting the committee. So what did we get into a few of those changes that took place in 2012 that then became focal points for discussion at the committee and as part of their report. There are a few issues I think that took more time out because any actually issue that took more of the committee’s time and was a bigger focal point than the issue around education and copyright which ironically enough isn’t solely a 2012 copyright reform issue. But leaving that aside, dozens of witnesses coming from across the landscape: education groups, authors, publishers, copyright collectives all presenting their case on the impact of the state of Canadian copyright law and what it means for education in particular educational copying. Where did the committee land after hearing all these different perspectives?

    Carys Craig:

    Well maybe just starting at the end and where did the committee land. Because this is really I think for me one moment in the report where I would have hoped I think for something more like a resolution or a substantive recommendation and instead I think what we see in this respect is that the committee hedges its bets but it refuses to endorse really either the proposals that were made by Access Copyright and the publishers in terms of limiting fair dealing but also it doesn’t give the educational institutions you know absolute or unbridled support for their assertions that their practices are lawful and consistent with fair dealing. And so we end up actually with a recommendation that the Government should consider facilitating discussions between the education sector and copyright collectives to try to build a consensus around these issues going forward. And of course that’s with a view I think in particular to the fact that there is ongoing litigation between Access Copyright and York University. And that remains to be resolved before the Federal Court of Appeal and may well proceed to the Supreme Court of Canada.

    Carys Craig:

    So I think actually the recommendation is perhaps appropriately cautious or responsive to the fact that these issues are very fraught and ongoing. On the other hand if there there’s a suggestion that the courts are I think the committee uses the language appropriately skeptical or that the courts have appropriate skepticism about the assertions of educational institutions claiming that their practices are systemically at fair dealing practices or lawful practices in relation to educational materials and I personally find that unfortunate because it kind of weighs into into the issues or steps into the fray. On the other hand, I think the positive thing is that the committee expressly refuses to endorse the proposal that was put forward by Access and by other publishers that we roll back the changes that were made to fair dealing in 2012. So specifically we added education as a purpose which means that something where someone is engaged in education broadly speaking has a purpose and we can move the analysis of the lawfulness of use onto the question of whether that use is fair. Now as you suggested that actually wasn’t the critical moment for the expansion of fair dealing in Canada. That moment actually came. Well first with the Supreme Court’s ruling in the CCH case and then subsequently with a ruling in the Alberta case which basically said that educational classroom uses of copyright protected materials could be fair dealing for the purposes of private study in certain circumstances. And so the argument over whether education should be enumerated or not enumerated seems to miss the point that the Supreme Court articulated a broad user rights focused understanding of fair dealing whether it’s for a private study or for education.

    Michael Geist:

    Right. And so I think you’re right about the role that the Supreme Court has played in influencing where those policies are. You know for me the the striking comment coming out of the committee was the reference to the fact that it may be technological disruption and technological change that is driving change in the education sector far more than fair dealing has which you can pick whichever lines you like out of the committee it’s clear they were trying to strike a bit of a balance or at least recognize that there were arguments that they were hearing on both sides of it.At a certain level, When you look at a couple of the other recommendations they had which included don’t conduct a review every five years and get us more data through Statistics Canada and even Canada Research Chair focused on this stuff. It’s pretty clear that the committee itself was torn in part because it feels it’s early and the amount of data that was out there was itself at times conflicting and they wanted to I guess take a bit more time, see this play out in the courts as you mentioned we’ve got this court case. You’ve got the big court case playing itself through the courts as well.

    Carys Craig:

    Yeah. No I think that’s right. I think that was a very important statement by the committee to recognize that the claims that were before it being made by the Canadian publishers and others that they’re suffering and drastically at the hands of the expanded fair dealing for educational uses the fact that the committee didn’t endorse that and didn’t accept that and pointed to the fact that there are many other causes and other changes that are taking place in the educational landscape around the use of materials. So open educational resources and the use of digital bundling. And also I think the the the fact that our libraries are so much more savvy about negotiating copyright licences and there are easier ways to do this. Certainly the landscape around educational materials has changed dramatically over the past 10 or 15 years even over the past five years. And so you know the committee is right to be wary of wading in and coming up with a kind of one size fits all solution to this. On the other hand given the amount of attention that was paid to this at the time and during the hearings and the amount of evidence that has been presented by all sides even if overwhelming it’s ultimately I think disappointing that we’re still sort of waiting for any kind of definitive resolution on something that is so pressing in the educational environment today.

    Michael Geist:

    Yeah that’s fair. But I would note that as part of the committee’s recommendations that that was not the only discussion they had around fair dealing and while they were being pushed to roll back fair dealing with respect to education and clearly rejected that as an approach, what they also did was expand fair dealing effectively with a call for more a more flexible approach. Could you comment on that and why it hasn’t got a lot of attention at least in some of the media coverage but certainly struck me as perhaps one of the most notable recommendations the committee made.

    Carys Craig:

    Absolutely. No I agree. You know so we’re talking about broadening fair dealing so that it is no longer tied just to specific enumerated purposes in the Act but actually is capable of being applied more generally or more flexibly to encounter new kinds of uses that are fair according to all of the normal fairness factors but which might not be squeezed into one of the enumerated purposes. And this is something that’s very close to my heart it’s something that I wrote my master’s thesis on you know coming up 20 years ago and I have consistently been writing and arguing and advocating for the expansion of fair dealing so that we don’t tie it to particular enumerated purposes. And so for me certainly this is one of the most important recommendations and something I’m very happy to see and I’m also I think quite happy to see that there hasn’t been a huge reaction to it because I think that tells us that the time for this has come. That you know certainly against the backdrop of Supreme Court jurisprudence that has urged a large and liberal reading of those purposes. And then just looking at the legislative process involved and trying to add new purposes like education like parody and satire and then lots of news specific enumerated exceptions for backup copies or user generated content, I think it’s become clear to everybody that the the better way to go is just to add two simple words “such as” to the fair dealing provisions and really allow them to operate in a way that is not only flexible right now but is flexible over time and as technologies evolve.

    Michael Geist:

    I think that’s right. It is striking that was certainly one of the big issues that was raised back as part of the 2012 reforms as the committee was thinking about as you mentioned several new exceptions “such as” approach one that would open it up to any purposes because at the end of the day the fairness isn’t really dictated by the purpose but rather by a series of other factors that are considered, what was a far better approach when that would be in a sense technology neutral and better better able to adapt to changes. It’s nice to see the committee recognize that several years later even as it has also identified yet another fair dealing effectively fair dealing purpose for informational analysis to sort of support A.I. Now that’s not the only revisiting of a 2012 reform that has some connection to fair dealing. So there was an argument for “such as” back in 2012 wasn’t accepted, it’s accepted by the committee now. Another area where the committee is in effect had a bit of a rethink from 2012 has to do with those anti circumvention rules. The digital locks that you mentioned earlier. Can you tell. Can you tell us a bit what the committee now says we ought to be thinking about when it comes to digital locks.

    Carys Craig:

    Sure so this is another really important recommendation I think. And again something that I’ve been thinking and arguing about for for several years now as you know. And so the question is the extent to which we should be protecting digital locks or technological protection measures and under the Copyright Act and the extent to which that additional layer of protection for digital locks should potentially subvert I think the underlying purposes of copyright or the shape and scope of the rights that the Act protects. So that’s to say you know we’re carefully tailoring and debating the scope of any particular owner’s right. And then the scope or the reach of user rights. And then along come digital locks and they get layered over the top and they get protected no matter what they’re protecting underneath. Or to what extent and what that risks doing I think is preventing people from engaging in otherwise lawful uses with the content that’s behind the lock.

    Carys Craig:

    So being unable to access that content to use that content for things that are fair dealing purposes or that are fair or lawful whether it’s user generated content, whether it’s criticism or review, or access in public domain materials contained in the work. And this has presented concern over time. I think there was a lot of mobilizing around this in the lead up to 2012. We saw different iterations of the anti circumvention provisions in different bills in the lead up to 2012. And you know I was disappointed at that time that in the end what we did was create a provision that essentially just mirrors what the U.S. had asked for and protects under the Digital Millennium Copyright Act. And so that is there weren’t exceptions for non-infringing uses and there weren’t provisions to ensure that people could continue to access work for non infringing purposes and there weren’t exceptions to ensure that people could actually get their hands on the kinds of devices that would allow them to do so anyway. So all of this was very problematic and I’m very pleased to see the committee now kind of revisit the issue and to acknowledge that there is a problem there. That although there might be good reasons to protect TPMs that it doesn’t make sense for us to be protecting them when what they’re essentially doing is preventing someone from doing something that is authorized under the Copyright Act. And so the committee points specifically to facilitating maintenance repair or adaptation of a lawfully acquired device for non infringing purposes but in the observations they make them more broader observation that people should be able to engage in authorized acts and lawful acts and that TPM shouldn’t prevent them from doing so.

    Michael Geist:

    I agree that the right to repairs clearly which was driving some of that discussion at the committee but their comment is certainly far broader than that as part of their observations and given given how how much attention this issue got back leading up to the 2012 reforms, it was was undoubtedly one of the very top issues that Canadians were talking about, yet ultimately rejected I think largely due to pressure from the United States. It’s nice to see it revisited and nice to see the committee coming around to where I think many Canadians were back when they first instituted these rules. You know one of the other areas that the committee touches on that has also attracted a lot of attention and it’s attracting a lot of attention now has to do with copyright term. I was speaking with Myra Tawfik just last week about copyright term and it’s the extension as part of the USMCA. The committee talked about term too. What did it have to say?

    Carys Craig:

    Yes. So this is another place where I was both surprised and very pleased to see the committee actually address this as though it’s not a fait accompli as though it’s not something that Canada necessarily has to do by virtue of its international obligations and that is extending the copyright term from the life of the author and 50 years to the life of the author and 70 years. And you know we saw in the Heritage report and the suggestion that no one had really objected to this and that we recognized it was something that was going to have to happen. And so the Heritage report just recommended that it should happen. And so what’s really refreshing I think and looking at the industry review is a critical engagement with that assertion. So first of all questioning or accepting that you know maybe it has to happen, but we should ideally not to do it. And therefore if it does happen we have to find ways to mitigate the costs or the harms that this term extension would cause in Canada. And so you know first of all that just is a recognition of the importance of the public domain of the significance of having a shorter term as we can possibly have to ensure that works fall into the public domain and are available to be freely used and to circulate and to be reused once copyright ends. And then there’s some creative sort of thinking around how we might mitigate the harm of a term extension if it isn’t deemed necessary. And so here you know because the international baseline requirements in the Berne Convention are life plus 50 years. What that means is that there might be some room for us to create conditions for a copyright protection beyond that term that that we wouldn’t be allowed to have during that term.

    Carys Craig:

    Right. So whereas we’re not let’s to formalities like registration for life plus 50 maybe for those extra 20 years we could require that copyright owners register or reregister their work maybe pay a fee for that additional time that there might be other formalities so that it’s not just an automatic continuation of term, but is actually a sort of surplus benefit that we make available on certain conditions. And you know there’s some good economic sense behind that kind of proposal. One would assume that if there’s an economic value ongoing for the exploitation of a particular work that the copyright owner will be willing to register and to pay and and so that will probably still be available for works and you know that’s to my mind still unfortunate because it takes valuable work out of the public domain for an additional 20 years but at least we know what those works are we can look them up on the register and we can subject them to particular conditions or costs associated with that added benefit. And meanwhile the works are not still being exploited can be freely used and so we avoid some of the orphan works problems and just the the lost benefits and that we suffer when we re-enclose those works and behind copyright ownership a point where nobody even knows who the owner is.

    Michael Geist:

    A really creative approach that addresses the concern that some have that they want to have longer terms for certain works but in many other instances we avoid the orphan works problem any other instances the work simply entered into the public domain. So it’s it’s nice to hear that both with respect to flexible fair dealing, digital locks, copyright term, the committee with a for a forward looking approach and in a sense revisiting some of the kinds of approaches that we’re taken a number of years ago. Is there anything else in the report before we wrap up that kind of caught your eye and surprised you either for the good or even perhaps not for the not so good.

    Carys Craig:

    Yeah. I mean I think it just in terms of the general tone I agree with you you said earlier about the emphasis on data gathering and evidence based policymaking and so for me that’s kind of a big take away from this and not unrelatedly, I think is the committee’s resistance to the urgings that I’m sure it heard from many people before it that Canada consider following the EU lead with something akin to the European digital single market directive and in particular Article 17 of that directive that has been so controversial which is about of course online content sharing service providers and essentially making them liable for the content that’s uploaded by their users. And I think what the committee does here is indicative of what’s good about the report generally which is to say this is a controversial area. We understand there are particular actors in particular people who would like to see copyright move in this direction, to kind of responsibilize these service providers and ultimately make them liable for content that shared or force them to engage in broad based licensing practices. And here the committee I think does a good job of saying you know we don’t know what the implications of this are going to be. We don’t know how it’s going to look in different member states when it’s enacted. And our commitment to this evidence based approach to copyright policy making requires that we wait and see. And so I think that’s good. And also the tone that set in that discussion insisting upon a balanced approach when it comes to online service providers and saying you know that the intermediaries here are not just service providers but also record companies, also large publishers. I think these are important observations.

    Carys Craig:

    But mostly I think that conversation culminates in a statement that’s very important which is a recognition that copyright law has limited tools to address the kinds of issues that are being presented to the committee. So arguments that Canadian creators and Canadian creative industries are suffering and that the Copyright Act alone cannot ensure that Canadian creators and creative industries receive fair compensation that it cannot solve the problems that are faced by artists. And you know this to me is key because one of my greatest frustrations actually in the copyright debates is this sort of persistent fallacy that copyright law is either responsible for or even remotely capable of solving the inequities, the unfairness that are experienced by artists or the dismal underfunding of culture in the arts in our economic system. And I think for this committee to recognize that the limited tools of copyright law and to acknowledge those in the face of the pleas of content industries is a really important moment.

    Michael Geist:

    It’s a fantastic point and you know ironically that kind of analysis and discussion is what I would imagine the committee thought they might be getting from the Canadian Heritage Committee and of course ultimately didn’t. So that recognizing the limits of copyright especially in the areas I just articulated are important. Why do we close by asking you about the limits of this report. It comes towards the very end of the parliamentary session, we’ve got an election coming up in the fall. Any thoughts on what next for the report and copyright reform in Canada?

    Carys Craig:

    Well you know certainly I hope that this that Parliament however it’s constituted after the next election recognizes the value of this report and the importance of the consultative process that led to it and follows through really on a lot of the recommendations that we see here. I don’t think it should be politicized. I don’t think that it should depend upon which party takes power. You know copyright has always been interesting in the way it sits along party lines. And so hopefully that means that the the relevance and the pertinence of this report will persist ovet any change in government. The other thing that the report acknowledges at the end is that copyright policy is necessarily an ongoing and dynamic conversation. And I think that’s exactly right. Constantly the conditions are changing we have to have our eye in different ways in which copyright works as technology shift and as consumer practices shift and not because we have to go in there every moment and change in a little subsections here and there, but because we have to be aware of the fact that the implications of copyright change as the realities of our consumer culture and our consumption of creative content change. So hopefully I mean I think this has set a good tone. I think we have a ton of great information here for Parliament to work with and I hope that this is the report that really captures the imagination of Parliament and allows for a sort of ongoing copyright review or reform process that keeps us eye on the public interest and the copyright balance.

    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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    39 min
  • Episode 15: Cows, Cars, and Copyright: A Conversation With Myra Tawfik on the IP Concerns With Implementing Canada-US-Mexico Trade Deal

    The new NAFTA – dubbed the USMCA or CUSMA depending on where you live – took a significant step forward recently with the introduction of Canadian legislation designed to ratify the treaty. The economic implications of the agreement are enormous, particularly with respect to digital issues and intellectual property. Myra Tawfik, a law professor at the University of Windsor and Senior Fellow with CIGI, joins the podcast this week to discuss Canada’s longstanding history of facing external pressure on copyright, the role that trade negotiations now play with that pressure, and the implications of the USMCA.

    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.

    Episode Notes:

    Canada Introduces USMCA Implementation Bill…Without a Copyright Term Extension Provision

    Credits:

    CBC News, Canada Introduces NAFTA 2.0 Implementation Bill

    CNBC, Trump: Trade Deal Protects Patents, Intellectual Property
    Globe and Mail, Flashback: President Clinton’s Original Signing of NAFTA Into Law in 1993
    CNBC, Key Differences Between the New USMCA Trade Deal and NAFTA

    Transcript:

    LawBytes Podcast – Episode 15 | Convert audio-to-text with Sonix

    Michael Geist:

    This is Law Bytes, a podcast with Michael Geist.

    CBC News:

    Signed sealed and now delivered to the House of Commons. Just last hour the Federal Government tabled a bill to implement the new NAFTA a deal that Canada the US and Mexico reached six months ago after 15 months of negotiations.

    Justin Trudeau:

    Canada the US and Mexico are at our most efficient most secure and most profitable. When we work together. And it’s about time we got back to that way of thinking. Mr Speaker, the new NAFTA will secure access to a trading zone that accounts for more than a quarter of the global economy. And it’s now time for the members of this House to ratify it.

    Donald Trump:

    Likewise it will be the most advanced trade deal in the world with ambitious provisions on the digital economy, patents very important.

    Michael Geist:

    The new NAFTA, dubbed the USMCA or CUSMA depending on where you live, took a significant step forward recently with the introduction of Canadian legislation designed to ratify the treaty. Bill C-100 comes near the end of the legislative session and just months before a federal election but the government may still work to rush it through the parliamentary process. The economic implications of the agreement are enormous. As Professor Myra Tawfik, my guest on this week’s podcast has noted it, touches on everything from cows to cars to copyright. Professor Tawfik is a leading copyright expert at the University of Windsor and a senior fellow with CIGI, the Centre for International Governance Innovation. She joined me to talk about Canada’s long standing history of facing external pressure on copyright, the role that trade negotiations now play with that pressure, and the implications of the USMCA.

    Michael Geist:

    Mayra thanks so much for joining me on the podcast.

    Myra Tawfik:

    Thank you for having me it’s a pleasure to be here.

    Michael Geist:

    Well it’s great to have you and it comes at a time where there is a lot certainly taking place from an intellectual property perspective. We’ve had just this week as we’re recording this another copyright review which will have significant consequences for where things go but but even more there is now a bill at the house that deals with the implementation and ratification of the new NAFTA, the USMCA, which has significant implications for intellectual property as well. And so I thought we could focus a bit on what’s in the bill but even more the very issue that that IP becomes an important part of these trade deals which we can take people by surprise. So why don’t we start there.

    Myra Tawfik:

    IP hasn’t always been a big part of trade deals. I mean it was NAFTA actually that the first NAFTA, the original NAFTA that introduced the concept of having intellectual property rights as part of international free trade agreements.

    Bill Clinton:

    I’d also like to welcome here the representatives from Mexico and Canada and tell them they are in fact welcome here. They are our partners in the future that we are trying to make together.

    Myra Tawfik:

    And that was a significant shift. So we’re talking sort of what are we talking about sort of 25, 30 years ago where the the U.S. particularly started to think about ways in which it could maintain and grow its advantage in the international trade landscape and IP of course in the U.S. is sort of a huge developer and exporter of intellectual property. And I think that’s  has had a fundamental shift in the way intellectual property rights have been viewed both domestically and within the international framework. So NAFTA was the first to do it. So it’s a fairly you know in the grand scheme of things it’s it’s not that that long ago. But from NAFTA to the WTO TRIPS and onward to every international trade negotiation and trade agreement since then there has been an intellectual property code in most of them.

    Michael Geist:

    Ok. And when you talk about international code and these trade agreements I assume we’re talking about everything from the new Canada- EU trade agreement, the TPP the Asia trade agreement, this isn’t just a U.S. Canada Mexico thing. This is global in scope.

    Myra Tawfik:

    It is global in scope. It is although if you if you look at some of the bilateral trade agreements that Canada has entered into since NAFTA and TRIPS sort of you know a number of them with some some of the South American countries et cetera we you know we we haven’t necessarily put intellectual property in those trade agreements which suggests to me sort of you know Canada’s you know Canada’s perspective within this context that IP rights or IP codes within trade agreements may not necessarily be to our priority of ours but yeah absolutely. So at particularly every trade agreement in which the U.S. is involved or the European Union you’ll find you know these intellectual property provisions or intellectual property code name calling codes but sort of you know chapters that deal specifically with the various forms of intellectual property rights. And what we’ve seen over the years from this from NAFTA as the beginning adapted WTO TRIPS is an increasing kind of attention to raising and enhancing and strengthening the intellectual property rights with each trade iteration of these new trade agreements.

    Michael Geist:

    So that’s interesting because it suggests that Canada’s participation in these trade negotiations and agreements and then ultimately with these IP chapters isn’t something that’s necessarily a priority for the country if you take a look at the recent Israel agreement, the South Korea agreement or some of the other agreements. It’s not Canada that is pushing this you’re suggesting this is this is coming in this case from the United States.

    Myra Tawfik:

    Yeah I think that’s correct. I mean you know I think you know I do. If you look at kind of you know over the long term the centuries you know at least a couple of centuries of Canadian involvement in international intellectual property rights especially the international copyright space but generally, we’ve always been somewhat sort of ambivalent about you know where where we should place ourselves as a middle power, generally an importer of intellectual property so it’ll always it’s always going to cost us more sort of to buy the IP from elsewhere and obviously the US looms large not only kind of in you know in the practical realities of of us engaging with US in in you know imports and exports of you know copyright works et cetera but also just sort of in terms of you know a dominance you know sort of thing that this sort of there’s a you know sort of a psychology around our relationship with the United States that you know that you can trace that way back you know to the 19th century. So you know it’s not it is it is always sort of this this you know ambivalence about what our what our place should be within these these intellectual property international intellectual property system. And it is usually the U.S. that looms large kind of in. In determining our approach to to a great extent not totally but to a great extent.

    Michael Geist:

    You’re one of the leading copyright historians in the country can I want to come to today. But you know I can’t help it but ask you ask you to sort of expand a bit on sort of the history side and since we’ve seen this for decades if not centuries in terms of U.S. pressure on Canada.

    Myra Tawfik:

    Yeah. No I know we want to talk about today but I do think I mean one of the things about looking back in time is you start to see a picture that is sort of more kind of longitudinal and evolves over over centuries in our case. But you know there there was one of the most poignant things about doing copyright history is to realize that there was probably a there was only about a decade and this was prior to confederation where Canada or Canadian colonies at the time actually had autonomy to determine their own sort of intellectual property laws to do the course and the policy underlying the intellectual property laws and by the mid 19th century the U.S. had become sort of a very important force in you know with with Britain. I mean was still a British colony at the time. But the point is it sort of became it started to assert its own economic and cultural interests in a global  space by the the middle of the 19th century. And we were caught up in that.

    Myra Tawfik:

    And so every time sort of the US sort of had to add up a dispute with UK over the imports of British copyright works etc. We got caught in the crossfire because our market became a bargaining chip for the British for example to try and enter into some kind of compromise agreement with the United States and so I know it’s there I do want to get it is too much to get into the detail but the point is that you know with every international trade agreement including the Berne Convention I’m not trade but the copyright agreement the Berne Convention we’ve always been sort of there’s been this ambivalence because we can’t detach ourselves from the reality that we love to consume American entertainment and other products sort of in the copyright space but we also don’t we lose control then autonomy over how to determine our own policy interests and therefore how to chart our legislative course in a way that matches those. And what we’ve tended to do is adopt multilateralism I mean that somehow that that there’s strength in numbers and that we should sort of be you know good international citizens and that we’re better off kind of in a regional or multilateral agreements than on our own. And I think that’s generally been a good approach for us but it does mean that particularly on the internal intellectual property front we are often dictated to by you know by others whose standards are by definition you know necessarily higher than ours, because they are the ones that are producing the intellectual property that we’re consuming and I. And that has been a pattern sort of you know I mean I say I won’t go into the detail it’s fantastic history but it it has been our pattern and I don’t know. I mean I think work arriving at a moment where we are actually engaging. I see it with greater maturity in these international negotiations. I mean there are some of some parts of Canada U.S. Mexico agreement that that are actually sort of do you know take into account Canadian interests the cultural industry’s exemption which we had in the first NAFTA, the notice and notice kind of preservation of notice and notice, I mean those are things that you could see sort of Canada’s identity or autonomy coming through. But on the whole every time we’ve entered into any of these international trade agreements it’s because someone else and usually the United States has wanted to impose higher standards because it serves their interests. So we’ve often adopted sort of international principles or rules that serve the interests of other countries rather than first and foremost our own and that on that point that has been our history for a long long time.

    Michael Geist:

    Amazing to think that there’s nothing new here in the sense of facing pressure from the United States and ultimately as part of that broader trading relationship being willing to give on the intellectual property side presumably in the expectation that there were gains elsewhere.

    Myra Tawfik:

    Right. That’s right.

    Michael Geist:

    So I do want to touch on some of the places where we may have shown that greater maturity or willingness to stand up for ourselves. But I guess first let’s just make sure people are familiar with the landscape here. The USMCA or CUSMCA depending on which country you and what acronym you want to use. There is of course still some doubt as to whether or not we’ll get ratified it is rather old disorienting to the extent to which you had the U.S. vice president promoting the trade agreement in Canada at the same time that Trump was threatening new tariffs on Mexico suggests that this may not go anywhere. But what if it does Canada clearly wants to be ready. They’ve now put forward a bill that allows them to do that for someone new to the issue thinking about intellectual property. What’s the what’s the what’s the biggest issue in there in that bill do you think?

    Myra Tawfik:

    I think that while the biggest issue again because you know my my bias is towards copyright is is sort of the term what we call the term extension so the the the obligation that Canada will have to extend the term of copyright protection what from what it currently is which is life as the creator of the copyright work plus 50 years after the death of that creator to to to move to move it or increase the term by 20 years to a life plus 70 duration of protection which is also the norm increasingly becoming the norm in in key international and key you know partners, international partners or an in in key jurisdictions like the European Union, the United States has a similar kind of you obviously as a life plus 70 term, Mexico I think still has a life plus a hundred term. But we have maintained and been very strong on maintaining our view that we should only abide by what we’re the minimum term that we’re required to do to to adhere to under the terms of the WTO TRIPS and the Berne Convention which is a life plus 50. So this will be significant.

    Michael Geist:

    Yes there’s a change. It will. Thank you for that. It will be so just so we’re clear though Canada does currently meet its international obligations with the life plus 50.

    Myra Tawfik:

    Absolutely. Canada has always met. I mean that’s what sort of Canada’s always met its international obligations. You know again if you go back over the parliamentary debates around Berne and or in and early in the 20th century we’ve always been very conscious and conscientious about meeting our international obligations. So there’s no doubt about that where where the quibbling is is in. You know that there is wiggle wiggle room in terms of these international treaties and there should be and some sort of other countries insist that we actually should be adhering to higher standards but we are we are adhering to our international commitments. Absolutely.

    Michael Geist:

    Okay. What’s your argument then for you know that I know some of the answers, but I’d love to hear your perspective on what are some of the arguments then to extend copyright term if as a starting point we meet the international standard and if copyright is about creating incentives for creativity along with access. If we’re going to in a sense gift an extra two decades of protection to works that have been already created which is there a strong policy argument for extending term beyond this is the pressure we’re facing from the United States.

    Myra Tawfik:

    Well I mean I see that the sort of the most kind of I suppose sort of benign or neutral argument is that you know the life plus 50 term sort of originated you know in the early late 19th early 20th century and that at the time it represented sort of the life of the author plus two generations basically as of heirs or you know estate that could could claim the copyright. In other words there was the sense that you know because the that the author the creator has created something sort of that’s worth you know worthy or worth something to posterity that the heirs should be able to claim after the author passes away. And so you’ve got sort of that that 50 50 as two generations and so that you know, well people are living longer and therefore it’s only natural to extend the term I mean it’s just a sort of a no brainer kind of thing you extend the term by 20 years because people are living longer so you’re you’re adhering to the same principle and you know recognizing the reality that you know and in our in our sort of century we’re living longer. And so what could be you know a problem with that.

    Myra Tawfik:

    The other argument of course is because of the you know the international dynamic I mean one of the reasons or one of the pressures that comes from increasing intellectual property standards globally is that Canadian creators et cetera will start to realize or will feel that they’re actually disadvantaged or that you know the Canadian market is disadvantaged because there isn’t this sort of harmonization of the term by 20 years. And so they would put pressure again on on on Canada to meet what is now at you know notionally the claim is now becoming the international standard. And so you know I mean I find it I I. Obviously biased. I mean I don’t I don’t think first of all intellectual property rights were never intended to unlimited rights. I mean they’re they are limited for particular public policy purposes. And so the idea of continuously Oh it’s just 20 years it’s just another 10 or so people are living longer whatever it doesn’t persuade me that this is something that is in the best interests of Canadians as a whole. And Canada sort of as a country. So I find it hard. I mean you know those are the arguments that are put forward. But I think no matter what what you do any extension of copyright term you know it harms kind of the ability for people to access and work with the sort of ah ah you know cultural literary but you know sort of the also sometimes very technical practical software for example is a copyright work but to to enable us to engage with those works once a reasonable period has expired where the copyright holder has had the benefit of being able to exploit commercially the there there create the results of their creativity.

    Myra Tawfik:

    So know I don’t if I answered the question but it’s hard. I find it difficult because I I feel fundamentally that that copyright should be limited in duration and that you know the argument that it’s just another 20 years because people are living longer doesn’t persuade me that it’s always necessarily a good thing to continue to heighten or strengthen copyright rights.

    Michael Geist:

    So there and there is certainly is clear opposition to this notwithstanding that the Canadian Heritage Committee had to say in its review of some copyright and remuneration issues when it didn’t hear from anyone that was opposed to it it’s quite clear and we saw it in the other in the main copyright review that there is. And you’ve articulated the arguments for but also some of the costs because there are costs associated with it. So Canada has resisted this for some time both in terms of sticking to what they’ve done as well as taking it off the table in some other agreements for no mistake and including for example the CPTPP.

    Myra Tawfik:

    That’s right. I mean I think the CPTPP is a really good example of where Canada positions itself in the international trade and IP landscape because if you look at sort of the original TPP when the U.S. was a participant you see a lot of the same kinds of provisions that we’re seeing and sort of NAFTA 2.0. But when the U.S. withdrew the agreement that ultimately signed if Canada participated in contains some suspensions of key intellectual property provisions which you know in other words again that the duration of copyright this extension of term was not included as part of an obligation or at least suspended. And in terms of an obligation under the CPTPP. So I think you get an indication there of where Canada’s feels more comfortable developing or whether increasing or remaining at you know its life the life plus 50 for example level which he has had is has been sort of the standard for for a long long time. So yeah I think there’s there’s there’s there’s evidence there of Canada’s position on these things and that’s a good example of Canada taking more of a lead lead once the U.S. withdrew to be it being able to carve out something that is maybe closer to where Canadian policymakers think the international IP system should the direction it should be taking.

    Michael Geist:

    It strikes me that that we’ve seen an attempt to perhaps continue that even within this USMCA because in this bill I think most expected to see an extension in the term of copyright but we didn’t get it immediate. No no. The there is a transition period, two and a half year transitional period, and it would appear that Canada is intent on using that transition period to delay implementing an extension and perhaps thinking about alternative ways to extend term of copyright if that’s an ultimate requirement. What do you think they might have in mind and what’s this delay in a sense about.

    Myra Tawfik:

    Well I think I mean you’ve obviously commented on this and I think this is a really good example of Canada sort of looking for you know being part of the international community but looking for Canadian made or solutions that actually work within or that that that that that is consistent with you know Canada’s vision or understanding of its of its role in the international intellectual property space because it really is sort of this this two and a half years to consult to sort of figure out ways of compromise I think is is really genuinely you know an assertion of autonomy in these negotiations and if there’s any indication I mean if you look at the Standing Committee on Industry Science and Technology there report that just was it was just released. They make a suggestion about how we might address the last 20 years of our life moving to life plus 70 by imposing a formal registration requirement for those last 20 years and any infringements. So if you have sort of if if copyright is infringed in that those last 20 years only the registered only you could only sort of pursue for infringement if you’ve registered your right. So life plus 50 and then a 20 year period where we are introducing a formality or that’s the recommendation of the INDU committee a registration formality.

    Michael Geist:

    Right. It’s a really interesting approach.

    Myra Tawfik:

    So it really is.

    Michael Geist:

    For those that aren’t familiar with the issue around formalities you’re not permitted to have those formalities for the base requirement internationally. So that’s the life plus 50. And so what it appears there may be a possibility of doing it well we’ve even seen a recommendation now to do is to simply say we’ll provide life plus 50 plus 20 as opposed to a pure life plus 70 and that extra 20 is there if you want it but I assume that or presume that that many makes. By that point in time say we’re comfortable with this being in the public domain which will allow us to allow those copyright owners who want to ensure that they’ve got copyright protection to continue to have it for that full period. But those that by that point in time aren’t interested anymore to ensure that those works flow into the public domain.

    Myra Tawfik:

    Absolutely I mean I think what it does is it creates certainty for those last 20 years for like you said as you say. I mean for those either the work. I mean there’s no one you know sadly no one cares about the work anymore in that that after that length of time or you know the the the copyright holders are happy with having it fall into the public domain. That’s that’s great. But only those who have made then a formal and have identified themselves through a registration formality so there’ll be a registry that you could go and check and determine whether or not they’ve made they’re maintaining their rights. I mean that creates certainty in ways that actually in the past the registry you know before has explained copyright you don’t have to register your right there are no formalities to securing the right. There used to be way back when and that you know there’s sort of we gave up. I mean that creates certainty. Those records obviously create certainty and there were very sound policy reasons for moving away from that but reintroducing this in in the last 20 years I think is a really innovative creative compromise to addressing some of the problems about the length the duration of copyright. You know in relation to for example sort of orphan works which are works in which the author can no longer be found to secure permissions. I mean there are all kinds of things that happen if you think about you know the lifespan of of of us an author or creator and then 70 years after the author’s death. You’re talking about a long period for there’s you know lost the loss of living memory here at least there would be a tangible record of the individuals maintaining their their copyright right. So I actually think that’s a really creative and effective compromise that you know I’m I really it’s really quite interesting that it came out in the standing committee’s report.

    Michael Geist:

    Right. It’s exciting to see that happening both at the policy development level through the committee and then potentially at the government level as well given that they have not put it into this bill. There’s this is obviously not the only provision in there. Are there other things people should be paying attention to on the IP side within Bill C-100 and this implementation.

    CNBC:

    Now one of the main goals for renegotiating NAFTA was to create a more modern agreement. The current deal took effect about 25 years ago before the advent of the digital economy. Now there’s a framework for dealing with intellectual property. Pharmaceutical companies will also get exclusive marketing rights on biologic drugs for 10 years.

    Myra Tawfik:

    Well one of the provisions that’s been controversial has been this issue regarding patents and biologics. And I must admit I’m not you know sort of as you know familiar with the technical side of it but it relates to some forms of sort of pharmaceuticals and some of the arguments. So we have currently have an eight year sort of protection sort of added protection or additional protection for that form of patented invention and the obligation for us is to move to 10 years and the two year I mean it may seem not not seem like a long time two years but two years and sort of. You know when when you’re dealing with you know very expensive pharmaceuticals where we want to introduce new medicines to you know for public health reasons et cetera that these these this added two years will create a burden in terms of the fear is that it will raise the costs which are the costs of drugs for Canadians with which are already quite high. We’re paying a lot for our pharmaceutical medicines. So that’s one that is worth watching because there has been a lot of criticism about that again the idea that that the enhancing intellectual property rights, So two year term on biologics or life plus 70 in copyright I mean every time you you enhance kind of the right to give more rights to the to the the right holder there’s there’s a cost associated with that and obviously those who those countries that are strong producers of those outputs or outcomes or whatever are the ones in there it’s in their best interest to ensure that they can get us as much protection for as long as possible. And of course the corollary is for those countries like Canada that cannot compete and cannot produce to the same extent. It means that there is a cost to us and the cost here is sensitive obviously because a lot of we’re talking about in many instances obviously sort of important pharmaceutical products.

    Myra Tawfik:

    So that’s one that I think you know needs to be looked at which has raised some criticism or discussion. The the other is there’s some, you know there’s I mean the intellectual property provisions obviously cover every form of intellectual property so copyright patents trademarks trade secrets industrial designs. I mean it covers the range and provides enhancements and you know tweaks and sometimes significant changes to all of the forms of intellectual property. The other one that’s been flagged as an issue for Canada relates to what we call trade secrets or the law of confidential information where the U.S. has been pushing it.

    Myra Tawfik:

    And if you read kind of the you you you the the various reports issued by the U.S. trade representative sort of on it’s intellectual property assessments annually. It’s concerned that countries don’t provide enough criminal sanctions for industrial espionage basically or misappropriation of trade secrets with intent or you know that we’re not we’re not aggressive enough and that there are provisions in the Canada U.S. Mexico agreement that that deal with you know enhancing the criminal side of our existing laws trade secret laws which are provincial actually. So it does create kind of another layer in terms of constitutional jurisdiction that we need to pay attention to. But again the arguing some argue that we already do provide sufficient we already meet our obligations under you know NAFTA and therefore won’t require any significant changes. But I think there’s sort of an ethos behind what you the US kind of criminalizing appropriation of certain kinds of trade secrets that you know we need I think to watch for even if we do in principle abide by the the the the rules in the NAFTA 2.0 agreement. I think that there’s there’s good it’s opening the door to further persuasion negotiation et cetera around us developing a much more robust or aggressive criminal range of criminal kind of remedies or criminalizing certain aspects of of trade secret law that we don’t currently do.

    Michael Geist:

    So we’ve got expansion of trade secrets including criminalization related concerns, we’ve got higher costs on the patent side, higher costs on the copyright side. Why don’t we wrap by just asking is this the right place for these kinds of issues. Each one on there would be a major policy issue that one would like to see debated. Is there a concern –  rhetorical question. Yeah shouldn’t there be a concern that these kinds of big policy issues with real costs run the risk of getting lost amidst massive trade deals that have implications for every aspect of our economy.

    Myra Tawfik:

    That’s absolutely right. I mean I’ve never. I mean once we we agreed and once the international community decided that intellectual property rights should be contained or these chapters should be contained in international trade agreements you know we have been unable because what they do of course is they’re inflexible. There are kind of you know you have to buy into the whole agreement not just you can’t pick and choose. So you can’t say I don’t like the intellectual property chapter so I’m not going to agree to that but I will agree to the chapter on that dairy or whatever it might be. So we have to accept everything within the agreement which means it’s sort of horse trading you’re going to give and take in certain areas the policy these fundamental policy issues around each one of intellectual property and how they they they land a practice in Canada and what kinds of you know what’s the global public interest in relation to intellectual property rights get lost.

    Myra Tawfik:

    And so if we could turn back the clock and go back to the time where we had separate international treaties or international agreements on each form of intellectual property. So the Berne Convention that deals with copyright, the Paris convention that deals with you know patents trademarks industrial industrial property, I mean you’ve got all of those international treaties that dealt specifically with each form of IP and address the policy concerns you know in a in a multilateral sense. Now we’ve got we’re trying to do all of our intellectual property within the rules and constraints of an international trade agreement which is a fundamentally different sort of beast basically settlement different. Agreed. The nature of it is fundamentally different from the nature of standalone intellectual property agreements. So absolutely I think where I think each. Each time each time we enter into these agreements each time we deal with enhanced IP rights globally we lose flexibility and I think we do need to ask ourselves this is not just a Canadian issue. I mean it is an international issue. Is it necessarily in this global public interest that we should continuously be engaging in in with IP in the International Trade Forum and with a view always to increasing and enhancing the rights. There is a point at which it’s strong you know sort of there. There will be a tipping point if we haven’t reached it already where you know intellectual property rights actually hinder impede innovation creativity and we will be you know all of us globally the much poorer for it. So I agree I think I think we need the policy issues that we need to be addressing are not being dealt with in the international trade format yet that’s become the primary forum for dealing with international IP. You know since since NAFTA since the first NAFTA.

    Michael Geist:

    I just just a riff on a line that you used when we reached the agreement. That’s all happening from a Canadian context where we are prioritizing economic issues like cows and cars.

    Myra Tawfik:

    Yeah you’re right. Yeah yeah I think it should be the three C’s cows cars and copyrights. We can’t lose sight of of the importance especially near global innovation economy of our our need to start to understand how to play in the international spaces in intellectual property. So we have cars cows and copyright.

    Michael Geist:

    That’s a great way to end it. Myra thanks so much for joining me on the podcast.

    Myra Tawfik:

    Thanks 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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    36 min
  • Episode 15: Cows, Cars, and Copyright: A Conversation With Myra Tawfik on the IP Concerns With Implementing Canada-US-Mexico Trade Deal
    The new NAFTA – dubbed the USMCA or CUSMA depending on where you live – took a significant step forward recently with the introduction of Canadian legislation designed to ratify the treaty. The economic implications of the agreement are enormous, particularly with respect to digital issues and intellectual property. Myra Tawfik, a law professor at the University of Windsor and Senior Fellow with CIGI, joins the podcast this week to discuss Canada’s longstanding history of facing external pressure on copyright, the role that trade negotiations now play with that pressure, and the implications of the USMCA.
    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.
    Episode Notes:
    Canada Introduces USMCA Implementation Bill…Without a Copyright Term Extension Provision
    Credits:
    CBC News, Canada Introduces NAFTA 2.0 Implementation Bill
    CNBC, Trump: Trade Deal Protects Patents, Intellectual Property
    Globe and Mail, Flashback: President Clinton’s Original Signing of NAFTA Into Law in 1993
    CNBC, Key Differences Between the New USMCA Trade Deal and NAFTA
    Transcript:
    LawBytes Podcast – Episode 15 | Convert audio-to-text with Sonix
    Michael Geist:
    This is Law Bytes, a podcast with Michael Geist.
    CBC News:
    Signed sealed and now delivered to the House of Commons. Just last hour the Federal Government tabled a bill to implement the new NAFTA a deal that Canada the US and Mexico reached six months ago after 15 months of negotiations.
    36 min
  • Episode 14: Big Data, Privacy and Democracy: A Conversation With Nathaniel Erskine-Smith on the International Grand Committee

    The debate over big data, privacy and its implications for democracy came to Ottawa last week as the International Grand Committee brought together the world’s biggest technology companies, politicians from around the world, and leading thinkers. Liberal MP Nathaniel Erskine-Smith, the Vice-Chair of the Standing Committee on Access to Information, Privacy, and Ethics joins the podcast this week to reflect on the three days of hearings, the prospect for global reforms, and what comes next for the committee.

    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.

    Episode Notes:

    International Grand Committee on Big Data, Privacy and Democracy

    Credits:

    CBC, Politicians Grill Facebook, Google, Twitter over Privacy, Disinformation

    CBC, Facebook’s Mark Zuckerberg Ignores Subpoena to Appear at Privacy Hearing

    Transcript:

    LawBytes Podcast – Episode 14 | Convert audio-to-text with Sonix

    Michael Geist:

    This is Law Bytes, a podcast with Michael Geist.

    CBC News:

    The world’s largest tech firms were on the defensive today in Ottawa. Canada hosted a committee of politicians from nearly a dozen countries which got the chance to grill representatives from Facebook, Google, and Twitter about how they manage data, how they handle the spread of misinformation, and whether they’re a potential threat to democracy. The committee also heard from observers of the industry who are worried about what they’re seeing.

    Michael Geist:

    The debate over big data, privacy, and its implications for democracy came to Ottawa last week as the so-called international grand committee brought together the world’s biggest tech companies, politicians from around the world and leading thinkers for three days of hearings. The international grand committee hearing the second of its kind was led by the House of Commons Standing committee on Access to Information, Privacy and Ethics who were joined by elected officials from the U.K., Germany, Ireland, Singapore, and many other countries. In the hot seat where the tech and social media companies: Facebook Google Twitter Apple Microsoft and Amazon. The discussion often became contentious.

    MP Peter Kent:

    Does Facebook still defend the concept that it doesn’t have to be true to be your platform.

    Kevin Chan, FB:

    I understand where you’re getting at. I do think that if I if you’ll permit me the way I would like to maybe talk about it a bit.

    MP Peter Kent:

    Yes or no it wouldn’t work yes or no would work.

    Kevin Chan, FB:

    That’s why we’re here. We would welcome basic safe.

    MP Peter Kent:

    So this is a learning experience for you.

    Kevin Chan, FB:

    To welcome basics Mr. Kent basic safe. I think.

    MP Peter Kent:

    I asked that with respect and civility.

    Kevin Chan, FB:

    We would welcome basic standards that lawmakers can impose on the platform about what should go up and what should come down.

    Michael Geist:

    The controversy didn’t stop with what the company said but also who said it the decision of top executives such as Facebook Mark Zuckerberg and Sheryl Sandberg to give the entire hearing a miss sparked widespread anger from across the political spectrum.

    MP Charlie Angus:

    It’s really important for Facebook and the other data giants to realize that their contempt of democracy is their contempt of citizen rights. Their belief that because their billionaire frat boys from Silicon Valley they’re there above all of us little people that they they’re running on a road and if they continue to show contempt for our democracies our democracies will push back.

    Michael Geist:

    Hours after the hearings concluded I sat down with Nathaniel Erskine Smith a Liberal MP from the Toronto riding of Beaches East York and vice chair of the committee to discuss the intensive three days, the prospect of global reforms, and what comes next for the international grand committee.

    Michael Geist:

    Thanks so much for joining me on the podcast.

    MP Nathaniel Erskine-Smith:

    Thanks for having me.

    Michael Geist:

    So we are just a few hours after the conclusion of three days of what I assume I’m exhausted was pretty gruelling hearings for the grand committee which made for a really good television or at least streaming for those that were following. That’s right and certainly attracted a lot of attention and I want to get your immediate thoughts given that it’s only been a few hours since it concluded. But first for those that weren’t following along. Can you just explain what the grand committee is.

    MP Nathaniel Erskine-Smith:

    Sure. So the grand committee the word grand by the way this would only have been created by UK parliamentarian. It is an international committee made up of more than 10 parliaments from around the world who are all focused on similar issues related to democracy big data and privacy. And this really was born out of an initial cooperation between our Canadian committee and the U.K. committee where we are both going down this rabbit hole of Cambridge analytics. And there was I communicated first with Christopher Wylie who connected me with the U.K. chair Damian Collins. We had direct interactions to assist one another in our investigations and out of that we went to a roundtable of parliamentarians in Washington in July of last year and started this conversation. We had Bob Zimmer our conservative chair was there with me in Washington and he and Damian then said What else can we do. What can we do next. And Damian at the time was adamant that Mark Zuckerberg needed to attend before the UK Parliament. He’d blown them off. And so the initial thought was well it’s much more likely that we get a serious witness like that if we join forces. And so started out with Canada the UK and then ballooned to 10 plus parliaments.

    MP Nathaniel Erskine-Smith:

    We had an initial meeting with Richard Allen a V.P. of global policy for Facebook in London in November December of last year and then so this is the second major meeting. And it really is one to raise awareness and to hold the platforms accountable for some of their bad practices and negligence. I would say and, two, to sort of build on the sense of global cooperation when we have problems that are global in nature because data so freely flows across borders and companies are global in their reach. How do we work as Parliamentarians across countries to have a global solution.

    Michael Geist:

    It’s interesting now. I won’t get into some of the that ability to cooperate on some of these issues and who shows up and who doesn’t show up even when you come together. But what are some of your immediate thoughts. How do you feel the last few days which of course included the platforms if not the senior executives along with any number of different experts as well.

    MP Nathaniel Erskine-Smith:

    So what I think is really important that we expanded beyond Facebook and we add Facebook Google Twitter on one panel together and then we had Amazon Apple and Microsoft on another panel together. We also had people who have been writing and thinking about this a great deal from Taylor Owen Ben Scott Heidi Tworek, and Shoshana Zuboff. So there was a lot of good thinking brought to bear at the outset that we could sort of draw from and then put questions to the platforms and big data companies. It was frustrating obviously at times. There were an initial frustration just because very senior people did not attend. When I think they ought to have attended. Also frustrating some of the answers that were given but I would also say I have reasons for optimism when I see. All of these companies now say we need stronger privacy data protections and that if you asked me three years ago they simply weren’t saying they’re pushing back against that. They were lobbying against the GDP. It’s true. Now they’re all saying GDP or potential GDP plus we have. An acknowledgement that they are all moderating content and there needs to be public accountability to that content moderation and different answers probably depending upon the jurisdiction but there needs to be some public facing cooperation between these companies and they can’t be policing this all themselves on their own. We had an acknowledgement that I wasn’t expecting actually that there should be corporate responsibility for the algorithmic impacts or the impacts of the algorithms that that they employ. So there were the beginnings I think of a pretty fruitful conversation and then some additional frustrations where they blew off I think a very useful conversation on competition didn’t really take consumer protection completely to heart. I don’t think. And obviously in the end they didn’t send people who were really gonna be able to make decisions for their companies.

    Michael Geist:

    Yeah that’s right. And that’s that last point really attracted a lot of attention. I know from you and from from a lot of other people given that particularly the senior executives at Facebook Zuckerberg and Sheryl Sandberg didn’t show up. But of course that’s true for a number of the larger companies.

    MP Nathaniel Erskine-Smith:

    It was true for all the companies I think Twitter took it the most seriously actually from the people that they sent. Interestingly though particularly with respect to Facebook because they had failed to attend before the previous committee in the UK we had taken the exceptional measure of issuing a summons and more than that I think just as a matter of basic honesty if you’re the CEO of a company and two months ago on March 30th you write I care about privacy I care about competition I care about protecting elections and addressing harmful content online. I want to discuss these issues with lawmakers from around the world. And then you have 10 countries represented in a forum discussing these very issues and you don’t even make an effort and there is no explanation as to why he couldn’t attend. I mean Tim Cook got back to us and said he had another engagement and he was interested in this conversation. Whether or not that’s true that at least engagement. So I found that pretty frustrating in the end.

    Michael Geist:

    So does that ultimately in a sense undermine the kind of message that the companies are bringing. I mean you talked about that they’ve shifted or moved somewhat in terms of the growing acceptance of privacy regulation perhaps algorithmic transparency and the like but still there’s still not at the point that once once you leave the United States the senior executives are going to show up in.

    MP Nathaniel Erskine-Smith:

    I think. Yeah in a way it ultimately comes out of trust. And we had Kevin Chan from Facebook before our committee well over a year ago deal with the Cambridge analytics scandal and he acknowledged there’s a loss of trust here and we need to rebuild that trust. I don’t think it goes a long way to rebuilding that trust when there are in some cases platitudes and in some cases even a serious effort to engage in a policy conversation but no effort to engage in a very senior level.

    Michael Geist:

    It is striking. They do appear at some of those top executives to appear in the United States. The US is not represented on your committee. Although there were U.S. representatives that appeared. Are there concerns that this ultimately becomes of rest of the world elected officials versus U.S. company type of dynamic or at least what’s the impact of not having the U.S. government at the table for these discussions.

    MP Nathaniel Erskine-Smith:

    Yeah I hope it doesn’t become that I don’t think we need the U.S. government as it were but it certainly would have been helpful to have someone like Mark Warner or Rubio or Amy Klobuchar three people who had participated in the parliamentary Roundtable in Washington last July. I don’t know I was not corresponding with those folks in the way that the clerk was so I don’t know why it was the case that it was declined. But I think you make a good point that in the end if you want to take these if you want to tackle these issues in a very serious way if you don’t have a body like the EU doing it with you or a body country like the US doing it with you it can be difficult to do in Canada and the UK are an incredibly important start we had Germany here that was incredibly important. Ireland is excellent on these issues as well. But. Does it help that you’re adding Morocco to the conversation if you’re not adding some of the bigger players. Maybe not. We did have France when we were in the U.K. and we had Mexico here. So I think there are substantive you know there are serious jurisdictions that are if you look at Germany in particular Germany has done a lot of different very interesting things. There was a German MEP that brought the GDP forward and their own laws dealing with harmful content online. Their German competition authority has had some very interesting things. So that was helpful to have them there. So yes we’d like the US along with saying of course we want the US there but I think it was positive regardless.

    Michael Geist:

    Yeah. No I’d certainly highlight countries where we’ve been doing some really innovative things. How do you feel Canada fits within that dynamic given that many of the countries you just mentioned have been more aggressive in terms both of some of their regulatory or regulatory approaches or their laws and certainly the enforcement powers that their enforcement agencies say the Privacy Commissioner data protection commissioners have differs from what we have here.

    MP Nathaniel Erskine-Smith:

    So my bias is to say. As a parliamentarian sitting on the privacy committee I think our Privacy Committee has been very strong on these issues over the last three years. So as parliamentarians we’ve been quite good at pushing these issues forward. As a parliament overall and certainly as a government I think we’ve come late to the to this issue in a serious way. I’m heartened by the fact that there’s now a digital charter saying here are some principles and they include addressing competition issues addressing privacy and data protection in a more serious way. But. Interestingly I was in Brussels I forgot how many weeks ago I met with the EU Data Protection Supervisor on a number of people who are who have thought and are working on privacy issues there and they all spoke very highly of academics here in Canada, of past privacy commissioners here in Canada who have in many ways laid the intellectual groundwork for the GDPR. So the EU looks to count Canadian ideas and Canada doesn’t look too good at that it hasn’t been a bit frustrating but I will say now I think we’re at a place where it’s likely that all three parties run on privacy and digital rights platforms and there’s a strong likelihood that whoever forms government after October that we’re likely to see these issues continue in some earnest.

    Michael Geist:

    Yeah I’m glad you mentioned that because it’s one of things that was notable and I think I saw someone comment on it on Twitter during the course of the hearing is that it’s tough to find many issues on Parliament Hill where everybody seems to be in agreement. This appears to be one of them where certainly all three of the major parties participating in this process seem to be coming at these issues from the same perspective.

    MP Nathaniel Erskine-Smith:

    Yeah someone said to me. They couldn’t tell which party we represented until they looked us up which I think is a testament to the non-partisan nature of our work.

    Michael Geist:

    I think that’s that’s notable and in some ways it does augur well for the better I suppose for the digital Charter One of the criticisms of the charter is it comes pretty late in the mandate and that’s fair. So then the question becomes well what happens post election. But if you’ve got all all the parties singing from roughly the same songbook on many of these issues there’s some promise that whoever forms government will see this as an issue they need to take forward.

    MP Nathaniel Erskine-Smith:

    I think that’s right and I think much depends upon what each party puts in the platform to build out that mandate. Post-election. I was I say I’m hardened by the digital charter because it’s been such a battle. I introduced a bill last June to give the Privacy Commissioner greater powers and enforcement powers looking at fines proactive audits and making orders. And to me this is the no brainer. We were recommended this at our committee twice now. This has been many previous commissioners have said we need these powers. Other countries have them. They work. The lack of engagement I got a year ago versus the really serious engagement is happening now with respect to the digital charter and looking ahead and I think it’s very positive and I’m I’m optimistic that we’re going to see in the Liberal platform at least a real effort to address privacy and digital rights issues.

    Michael Geist:

    Yeah well that is encouraging and it’s it’s clear just as the companies have shifted. That hasn’t happened by accident. It’s happened because committees like yours have called attention to this and the public is genuinely interested and I think increasingly concerned about some of these issues.

    MP Nathaniel Erskine-Smith:

    Half the battle at committees like ours is raising public awareness.

    Michael Geist:

    And one can see you guys have done a done a good job. I mean certainly the reports that you put up get referenced in the digital charter background they get referenced by people repeatedly as sort of providing the foundation for potential.

    MP Nathaniel Erskine-Smith:

    I now know at least one person read our committee.

    Michael Geist:

    There’s no doubt more than one now the committee just now these hearings dealt with a whole number of pretty interesting issues some of them really challenging I thought we might touch on a couple. Right off the bat is this challenge on the content side. We get to the privacy side of what expectations we have of companies like Facebook but of course and include others to play a moderating role over their content and the example that was used was the Nancy Pelosi video and you had some members some elected officials who were basically why are you Why did you not take this down and this YouTube took it down you haven’t taken it down and Facebook response was what we have. It’s not that we haven’t done anything. But no we have removed it. What are some of your thoughts about how we navigate what is an incredibly clearly incredibly challenging issue on content that one can make the case causes harm but at the same time it isn’t clear that it’s unlawful and the dividing line between content like that and other parody type videos can be really tough to navigate.

    MP Nathaniel Erskine-Smith:

    So a couple of things. One I think it is more helpful for a committee like ours and an international committee like ours to focus on areas where we can make real inroads and there isn’t the same level of disagreement. So I think it was Taylor Owen who made the point that there are some easy issues that you can tackle and there are some difficult issues and harmful content on his own is really difficult. And then we immediately went to this Pelosi video that is actually really difficult example even in the realm of the already difficult harmful content conversation.

    MP Nathaniel Erskine-Smith:

    There are two tracks at which we should regulate where one track at which we regulate content which is where it’s illegal. And the second track is where platforms will obviously have to look to our public rules but we’ll also have community standards that they want to enforce as private companies and so. Is that Pelosi video illegal no. Does it violate their community standards. If it’s up then no and the extent to which it has violated their community standards they’ve taken action by downgrading and providing more context. I don’t know. I think perhaps I could do a bit of a better job of framing that context. It’s not just when you share but when you repress view it. But my view which is consistent with committee recommendations that we’ve made. Whereas obviously illegal content that is being hosted. There are really easy categories. You take child porn or terrorism but it is obviously illegal and it’s flagged for companies and they don’t take it down within a timely way. I’m perfectly comfortable imposing financial sanctions. Germany has a rule like this and whether it’s that exact set of rules or something modelled on those rules. I’m I’m comfortable with that level of enforcement. When you’re balancing freedom expression and protecting harms protecting its harms hate speech. If it’s at the criminal level of hate speech was are already a really high bar. I’m OK with that too. Where we are forcing companies to take down criminal hate speech or criminal harassment criminal threats obviously illegal content where it’s a grayer area. I think.

    MP Nathaniel Erskine-Smith:

    And public appeal mechanism to determine the illegality would be more comfortable making sure there’s some public accountability to the content decisions and around outsourcing this to the platforms. I would be more comfortable with certainly where Facebook is and determine their community standards. There is no public appeal as far as it goes. But if they are making a decision not based on standards. But public law surely there should be some judicial review as far as that goes. So I would be more confident in the harmful conversation and harmful content side if we focused on clearly illegal content and how we address that first because that even can be quite hard just from an enforcement perspective.

    Michael Geist:

    We can. I mean I think your your response highlights how much nuance there has to be on this. I mean there there’s sometimes feels like there’s a tendency to say you know you broke it you bought it fix it and take action. But it’s clearly not that simple especially when you’re dealing with a wide range of content some of which we can understand why people object to it but it’s lawful.

    MP Nathaniel Erskine-Smith:

    Ok. So what do you think about this. I’ve been turning over my head this notion. So there are two factors when we look at content in a way there’s the nature of the content. And if it’s harmful. You know I mentioned child porn terrorism obviously take it down. It’s obviously illegal content. We can talk about liability rules even if they’re there otherwise. In a previous life they could they could look at safe harbor. No we’re just the hosts were out promoting this content. We say oh actually we’re going to chip away at Safe Harbor where is all this obviously illegal. And the EU is even now looking at doing that with respect to some copyright I’m not wholly familiar but I know there’s there’s now a sort of a path towards chipping away at Safe Harbor. More and more depending upon the jurisdiction but at least I understand where we’re not going to last Safe Harbor where obviously illegal content because of the nature of the content. Then there’s the active participation in the promotion of the content. And if they’re not a mere host but they are actively promoting the content through use of the recommendation function on YouTube or the news feed algorithm. More people are going to see that there will be more impressions because of their active participation and there I don’t know what the answer is but there does seem to me there is another path for liability and Section 8 of these arcane broadcasting rules in Canada. Broadcasters can’t broadcast false and misleading news I don’t know whether that should be a rule that we have or not but it is a rule we have. And if they are employing an algorithm that increases impressions. In theory I don’t really know what. Why they get treated differently from broadcasting content that only if you look at it.

    Michael Geist:

    Yeah well I mean the starting point would be to ask whether or not they’re in fact broadcasting which that I don’t think they are.

    MP Nathaniel Erskine-Smith:

    But I don’t think they are what I think they are. There’s no reason that you wouldn’t take rules that apply to other categories and say if you’re doing something similar we’re gonna deem you to be platforms that give me a new set of rules on platforms.

    Michael Geist:

    Well I certainly think we can look to our existing rules to identify a little bit with the contours are around potential liability and another thing of course that makes Canada differ from some of the other countries that were around the table today is we’ve got a Charter of Rights and Freedoms which invariably means that some of that our analysis is going to differ from a country.

    MP Nathaniel Erskine-Smith:

    So I’ve asked the online falsehoods bill that Singapore was referencing.

    Michael Geist:

    No we wouldn’t have that and I don’t I’m not sure that we’d have what we’re starting to see in Australia and even the U.K. around harms. I think that the we have stronger protections of free of expression. I think you’re absolutely right around clear cut criminal content and and from everything that I’ve heard from some of those large platforms they agree as well. Facebook will tell you that the they’re able to remove terrorist related content before it ever appears the vast majority of the time and the rest come down quite quickly and child porn has always been viewed as as different from other sorts of content. But even in hate as you mentioned that you know our history around that and the cases have gone up to Supreme Court highlight how challenging it sometimes can be around some of these issues.

    MP Nathaniel Erskine-Smith:

    And I know that I mean I references section 8 but I think it’s rarely if ever been used this applying a law against false and misleading broadcasting false or misleading is and probably that’s because there are standards councils the broadcasters are part of the same with our news media they have their own internal ethics and the standards councils and so I think Heidi Tworek was making the point that building that ethos would be a really positive development and that makes more sense to me in some ways as a first step than trying to figure out how do we create it or debate even should we be debating liability or rules that would take down a Pelosi video that would open up a whole can of worms about content control that we probably don’t want to have.

    Michael Geist:

    It would you know the response to Facebook would likely raise and I think they did reference their efforts around developing some sort of oversight system there are questions as to whether I will be global in nature is it local because of course many of these are localized questions both in terms of the law and what people are comfortable with. So there’s there’s a lot of work to be done. I guess what’s changed is there is discussion about the need to do some of that work though.

    MP Nathaniel Erskine-Smith:

    You know it’s interesting Facebook at the last session in the UK. Richard Allen. I mean he said Well obviously if it crosses the line we take it down. It’s obviously illegal we take it down he said but maybe we shouldn’t promote it if it’s right up against that line because there’s been enough written now where the algorithm in the News Feed It doesn’t matter what reaction it gets if it gets reactions then then it will be more easily seen and promoted and so YouTube similarly in 2016 there is an engineer that said oh maybe we shouldn’t promote borderline content and recommend where line content. And in January of this year they’ve now said we’re not going to do it. And I don’t know if you have any views of this. So it’s not about requiring companies to take things down but. It might be useful to find a way to change the incentive structure where something is clearly false and misleading. That if we are to think about the algorithms we employed more in broadcasting terms. Is there room and maybe there isn’t. I don’t know. But is there room to say how do we change the incentive structure so that there is not profit motive for it rather than a penalty there is more of a discouragement. I don’t know the answer to that.

    Michael Geist:

    Although one of the things that I liked about the digital charter was that it did put algorithmic transparency on the table. And so the fact that we are I think recognizing that these are choices that are being made and perhaps at least the starting point is to say we need to know more about how those choices are being made. And that may ultimately lead to greater accountability for the choices that are embedded within some of those algorithm.

    MP Nathaniel Erskine-Smith:

    Yeah that is a place I am much more comfortable with so I won’t talk about speech and harmful content if it’s not obviously illegal and you get into these conversations even about how do we hold companies responsible for the algorithms that they are employing. It’s much easier as a starting point to say let’s make sure that there is a public facing risk assessment so we understand that if YouTube is recommending videos we might like to see. That’s a very positive benefit. But if they are recommending far right nationalist videos after certain content that is you know if they recommend Alex Jones videos to two billion times it’s not illegal but that’s probably a negative externality of a fear of their algorithm. And that should be public facing our way so that we can properly assess it and hold these companies to account.

    Michael Geist:

    I mean it’s interesting that the conversations moved in this direction. I think you also one point in time it was you who asked Google about scanning of emails and looking at some of some of that content we had others talking about banning personalized advertising where even though there’s talk about essentially banning or putting a hold on social media altogether which is a little more intensive a recommendation it was. What does that say. Are we now at the point where if not talking about banning technologies at least talking about getting under the hood a little bit in terms of how some of this technology works and try and marrying tech mirroring the legislative regulatory side with how the technology functions.

    MP Nathaniel Erskine-Smith:

    Yeah I think you’re absolutely right that it’s about getting under the hood. I would say it’s about getting under the hood and about assessing how we can take existing first principles and other areas of regulation that have worked offline. How do we make sure these are fit for purpose online and so to your point about banning certain things. We have consumer protection laws and we protect people in a couple of different ways. One to require them to opt into certain. you know if I consent to have to sign a contract is consent there. Sure. But in a consumer and a consumer. context consent sometimes isn’t enough because if I buy the phone. if I buy my iPhone I don’t have to read the Terms and Conditions. I don’t have to know that there’s an implied warranty of merchantability. Just is there because we don’t want a situation where consumers are quickly signing things and not reading things and then liable for the things that they sign. They’re busy with their lives they shouldn’t have to read contracts for everything that they purchase. Why are we suggesting that they should read contracts for every app that they purchase. Is it isn’t. I think a useful conversation have often consents that are explicit go a long way. I think the next question is are they sufficient. In full and are there certain practices. So for example I think I put two but maybe there are others and maybe I’m wrong about these two I don’t know. But it occurs to me that nobody needs to read my emails to target me for advertising. We just take them off the table. It occurs to me that no one under a certain age should be have personalized profiles made up of them for targeting purposes. We would never allow companies to do that off line. Why are we allowed into it online. So I think there are certain categories that probably we could take off the table completely and then have a consent model for everything else and explicit opt in consent largely.

    Michael Geist:

    You have any thoughts about how we how we do that from a legal regulatory perspective. We’ve seen how hard it is least in our country. It’s probably true for many others to even get broad based privacy reform much less delving into these kinds of issues and what what you’re putting on the table I think is really interesting and I think intuitively sounds right in terms of identifying certain kinds of behaviour that we would see as unacceptable in one area and ought to be unacceptable in the online space to do we have right now the kind of system or model in place that allows that to be operationalized.

    MP Nathaniel Erskine-Smith:

    Probably not. So maybe if we’re looking at wins maybe the answer is the GDPR modeled often consents and for any secondary use or anything that isn’t within them one’s reason why expectations in signing up for the app. There has to be an explicit opt in consents which is I think part of a you know there’s a consensus I think among folks like you as its various part privacy people on the on that and so maybe that’s where you start and then people look at other practice and say where consensus is built up say well actually this should be taken off the table. Probably though for kids I think that I think that’s an easy one actually to just take that off the table entirely and I would flip it and I think maybe this should be flipped in other ways too but at least for kids the onus shouldn’t be on us to prove that kids should be off the table it should be the onus on the companies show us the positive benefits for targeting kids in some way and then maybe we’ll let you do it. What’s the positive benefit.

    Michael Geist:

    For me it’s really in the privacy realm. The US doesn’t have much in the way broad based privacy rules but it does for kids.

    MP Nathaniel Erskine-Smith:

    Exactly in the sense and politically if not later that’s in the same way we work in a very non-partisan way to establish some of these recommendations so far that would be very heavy the easiest thing.

    Michael Geist:

    Now that makes sense. One other issue that I just wanted to touch on that you raised and I think you indicated didn’t get a great response on was the competition side of the story which is also gaining a lot of traction. What are some of your thoughts about the growing momentum. In many ways to say break up these companies or at least use to look to competition law antitrust law as a mechanism to in a sense divide up a little bit these very large companies from the different lines of business that where I think there is a feeling that part of the problem is when they merge these different lines of business together that’s where some of the harm may occur.

    MP Nathaniel Erskine-Smith:

    So I have spoken to people far smarter than me on this and I think that they are right that in the same way we protect consumers on price and that is one of the foundational elements of competition laws to protect consumers on price. We should also protect consumers on privacy and so acquisition mergers and acquisition decisions that should be a key consideration I think of competition regulators when they when they look at acquisitions. So what is the public interest in Facebook acquiring Instagram. Is there a great utility to us. Not particularly is there a downside to us. Not on price but your privacy actually. I think there is a real one where you had a major competitor that is the closest competitor. Now Zuckerberg can’t name a competitor one day when he attends a Congress. But Instagram was the competitor and we know that because if they weren’t if they weren’t one company now Facebook is losing users to Instagram and not having that level of competition and that ability to move from one platform to another. That protects my privacy a little bit more and maybe provide a safer space for conversation whatever the case might be. But at least on privacy that I think without question should be a consideration for our competition regulators. I know that competition authorities in Canada are thinking about this too because there’s a data forum that the competition commissioner has held at the National Arts Centre here. The other thing that I try to wrap my head around though unconsciously I don’t have any views of this is not about privacy but about just big data and innovation and it occurs to me as Amazon is today but I think the same applies to Facebook. If we use the Amazon example. They are basically taking all of the purchase decisions of consumers and adding that all up and saying well our consumers are really buying iPhone Chargers let’s get on the business of iPhone chargers. It seems really a massive amount of market power that I don’t know if that’s a good thing or not. But our competition regulators should be looking at it. When Facebook acquires third party apps which they tend to do. Are they sharing the third party app data that they have or are they commingling that with the data that they hold about people and then they’re able to make much better decisions about the growth of those apps and which one is likely to grow the fastest in which one is likely to be the best. Again that seems if they are doing that. That would be of great concern to me if I was a competition regulator. So there are lots of existing abuse of dominance and sort of unfair competition rules as we have them. I think they could be playing a much stronger role in the space.

    Michael Geist:

    No I think there is a there’s been an awakening on some of those issues and just like we’re talking much more about algorithmic transparency and talking about some of the different kind of regulatory solutions clearly that discussion is going to continue and it’s interesting.

    MP Nathaniel Erskine-Smith:

    Now the conversation has moved not from debating whether we should do it although the companies denied that we should do it. Of course they did but on competition at least. But the real conversation is moved to operationalizing the ideas so algorithmic transparency and explainability in the GDPR is accepted. It’s more just a question of how do you effectively make it a reality. And I think similarly with competition. I think competition authorities now recognize we have to address privacy and we have to address big data. How do we properly do this.

    Michael Geist:

    So I think it’s right. I see the lights flashing which tells me to think you’re headed for a vote. A few minutes or so before I let you run though what next for the grand committee.

    MP Nathaniel Erskine-Smith:

    So we will be meeting in Ireland in November. We is maybe a generous term in the sense that I’m up for re-election however and we’ll see. But there hopefully there will be Canadians that then hopefully I’ll be there and hopefully Charlie and Bob will be there as well. And it will continue. It’ll be up to Ireland in the same way we frame the debate here and added more ideas to the conversation than the first meeting. It’ll be up to Ireland to decide where we take this next. And I think my view has generally been initially accountability for companies was required. They were there now at the point where the public cares. They understand the need to act in many ways. You know we constantly give him a hard time and grandstand a little but the companies aren’t really trying to act in many ways whether it’s election interference or you know improving privacy rules. They’re now saying the right things and doing some of the right things. And I think it’s about continuing to have as much of a constructive conversation as possible at this point. How do we get serious cooperation from legislators around the world. But with companies around the world.

    Michael Geist:

    So I mean that’s right. I think that represents a really positive outcome in the privacy world for many years now. There’s been a lot of talk about the rule that the international conference of privacy and data protection could data protection commissioners plays where you get kind of the cross cultural cross country discussion.

    MP Nathaniel Erskine-Smith:

    I aasked about that about to the U.S. Election Commission Commission because I think what the privacy commissioners around the world do is incredible and more regulators should look to do it.

    Michael Geist:

    It’s had a real impact. It’s striking to see it happening effectively at an elected official level where we get politicians come they’re so rarely in fact having that kind of discussion is really interesting and I think that the effect of getting those different perspective surely has an impact that you’re able to bring back domestically as well when you hear what’s happening elsewhere and what some of the perspectives are.

    MP Nathaniel Erskine-Smith:

    Yeah I think it helps move the conversation forward in governments in the end where you have parliamentarians. You mentioned earlier but the fact that it’s been non-partisan it the fact that the public now care is more and more and more about these issues obviously they do we live our lives increasingly online we want ourselves and our kids to be protected online. So I think governments not just ours but in the UK and France is trying to do is Germany is ahead of us. But all of these and California when you talk with the US is not the table but probably you know if we’re focusing on maybe we should try to tackle getting a legislator from California to Ireland because there are jurisdictions in the U.S. They’re doing really important work on this too. But I think governments are now seized with this in a really serious way in a way that they weren’t. If you asked me three years ago when we started toiling away on these privacy issues whether I thought the government was going do anything other than much more skeptical than I am today that’s it.

    Michael Geist:

    Well thanks so much for joining me.

    MP Nathaniel Erskine-Smith:

    Thank you.

    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 14: Big Data, Privacy and Democracy: A Conversation With Nathaniel Erskine-Smith on the International Grand Committee
    The debate over big data, privacy and its implications for democracy came to Ottawa last week as the International Grand Committee brought together the world’s biggest technology companies, politicians from around the world, and leading thinkers. Liberal MP Nathaniel Erskine-Smith, the Vice-Chair of the Standing Committee on Access to Information, Privacy, and Ethics joins the podcast this week to reflect on the three days of hearings, the prospect for global reforms, and what comes next for the committee.
    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.
    Episode Notes:
    International Grand Committee on Big Data, Privacy and Democracy
    Credits:
    CBC, Politicians Grill Facebook, Google, Twitter over Privacy, Disinformation
    CBC, Facebook’s Mark Zuckerberg Ignores Subpoena to Appear at Privacy Hearing
    Transcript:
    LawBytes Podcast – Episode 14 | Convert audio-to-text with Sonix
    Michael Geist:
    This is Law Bytes, a podcast with Michael Geist.
    CBC News:
    The world’s largest tech firms were on the defensive today in Ottawa. Canada hosted a committee of politicians from nearly a dozen countries which got the chance to grill representatives from Facebook, Google, and Twitter about how they manage data, how they handle the spread of misinformation, and whether they’re a potential threat to democracy. The committee also heard from observers of the industry who are worried about what they’re seeing.
    Michael Geist:
    The debate over big data, privacy, and its implications for democracy came to Ottawa last week as the so-called international grand committee brought together the world’s biggest tech companies, politicians from around the world and leading thinkers for three da
    41 min
  • Episode 13: Digital Charter or Chart: A Conversation With Teresa Scassa on Canada’s New Digital Charter

    Years of public consultation on Canadian digital policy hit an important milestone last week as Innovation, Science and Economic Development Minister Navdeep Bains released the government’s Digital Charter. Canada’s Digital Charter touches on a wide range of issues, covering everything from universal Internet access to privacy law reform. To help sort through the digital charter and its implications, I’m joined on the podcast this week by Professor Teresa Scassa, a law professor at the University of Ottawa, where she holds the Canada Research Chair in Information Law and Policy.

    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.

    Episode Notes:

    Canada’s Digital Charter

    Canada’s Digital Charter Represents a Sea Change in Privacy Law, But Several Unaddressed Issues Remain

    Credits:

    The Canadian Press, Innovation Minister Navdeep Bains Introduces Digital Charter

    CBC News, Security, Control Over Personal Data Outlined in Canada’s New Digital Charter
    FactPointVideo, Trudeau Announces Digital Charter to Fight Fake News, Online Hate

    Transcript:

    LawBytes Podcast – Episode 13 | Convert audio-to-text with Sonix

    Michael Geist:

    This is LawBytes, a podcast with Michael Geist.

    Navdeep Bains:

    We can’t ignore some of these new complex challenges that have emerged. At the heart of these new challenges is the fundamental question of trust. How can Canadians believe in the good of this online world when they’re confronted with a video of 51 innocent people gunned down during prayer in Christchurch and that video goes viral. How can they trust their data will be used to improve their lives when it is used to bombard them with disinformation. Here’s the thing: innovation cannot happen at the expense of privacy and data and personal security. I’m happy today to present Canada’s new digital charter.

    Michael Geist:

    Years of public consultation on Canadian digital policy hit an important milestone last week as Innovation Science and Economic Development minister Navdeep Bains released the Government’s Digital charter. Touching on a wide range of issues, Canada’s digital charter features 10 guiding principles: universal access, safety and security, control and consent, transparency portability and interoperability, open and modern digital government, a level playing field, data and digital for good, strong democracy, freedom from hate and violent extremism, and finally strong enforcement and real accountability. To help sort through the digital charter and its implications, I’m joined on the podcast this week by Professor Teresa Scassa a friend and colleague at the University of Ottawa. Professor Scassa holds the Canada Research Chair in Information Law and Policy. She writes frequently on information and data issues at her Web site at teresascassa.ca, appears regularly in the media and before House of Commons committees and serves on several key advisory boards and panels including Waterfront Toronto’s Digital Strategy Advisory Panel and the newly created federal A.I. Advisory Council.

    Michael Geist:

    Teresa, welcome to the podcast.

    Teresa Scassa:

    Thank you for having me.

    Michael Geist:

    It’s great to have you. So we’re recording this at the end of a week in which the innovation science and economic development minister Navdeep Bains has been off selling the digital charter in Toronto and Montreal. It’s been in the news regularly and so I want to talk a bit about the charter and I guess consider whether or not Canadians ought to be buying what the Minister’s been selling. What do we start with a little bit of background though. What is the digital charter.

    CBC News:

    The Federal Government is launching a new digital charter to protect, they say, Canadians personal data. Ottawa is promising changes to federal privacy laws to give Canadians more control over their personal information when it’s collected by technology companies. The government laid out a series of principles today they say will guide changes to the Privacy Act. The changes will also include penalties and fines for tech and social media companies that breach the new privacy law. So does that mean the government will start fining Facebook right away. When can Canadians expect these new protections to kick in?

    Teresa Scassa:

    The digital charter is built around 10 principles that are intended to guide the government’s digital strategy going forward. So so they called it a digital charter. They’ve they’ve set out these principles and. And. Yeah. And that’s that’s essentially what it is. And the principles are are somewhat broad principles. But the I guess the issue you hear the hesitation my voice the issue I have with the digital charter is that I don’t like the word the use of the word charter in there because I would see it. I would call it a digital chart. It’s a roadmap right. It’s here are some principles that are guiding us as we develop policy. And that’s fine. And there are interesting principles and they will shape or guide policy but a charter is the charter is a document that confers rights and entitlements and often those are actionable rights. And so there are things in this digital charter that maybe should be rights but aren’t there just principles like Canadians should have universal access not Canadians have a right to access. Right. So so you know it may sound a little bit like quibbling but I think that if we’re serious about ff something like a charter articulating the basic rights that Canadians should have in a digital society. This isn’t the document. This is a roadmap to developing digital digital strategies digital policy. And it may be an interesting roadmap but it’s not a charter.

    Michael Geist:

    This is a really interesting perspective. So it’s a road map or a charter it sometimes has almost a checklist. Yeah kind of feel on a whole sort of issues including universal access and the privacy issues and open government and those sorts of things so given that it is not that charter in the sense that one might typically think of something conferring rights. I take it this is a bit more aspirational in terms of where were they where the government says they could be going as opposed to resulting in something immediate.

    Navdeep Bains:

    It’s going to be very difficult to pass any legislation at this point. What we’ve done is proposed policies and changes to the privacy legislation that we’d like to implement in a timely manner. Clearly there is very limited runway in the legislative agenda for this session. So the hope is for putting in our platform and also in the next mandate as well if we’re fortunate enough to earn the trust of Canadians.

    Teresa Scassa:

    It’s almost like a political platform. Given that an election is six months. It’s it’s basically saying this is this is what we’re thinking where we’d like to go. These are the you know the values that will underpin what we’re going to do in terms of digital strategy and so all of that’s well and good. And. you know and I think it’s it’s good to set those out so but that’s what it has the feel of. I mean there are things in there that that aren’t new. Again the concept of universal access how long have we’ve been talking about universal access in Canada. How long have we been talking about. Well you mentioned privacy but privacy isn’t actually one of the principles. Control or consent is a principle. Better enforcement of all rights not just the privacy rights is a principle but there isn’t actually a principle that says that talks about privacy as a as a right. It’s it’s about aspects of data protection essentially.

    Michael Geist:

    Oh that’s right. What do we actually go there and talk a bit about the privacy side which is which was certainly one of the aspects of the chart or charter that included a full background paper and the Minister has been talking quite a lot about it. So obviously got a fair amount of attention. Knowing the Privacy Commissioner of Canada was out speaking this week also had major privacy conference and was talking about the need for a rights based framework. Do you have the sense that the minister that the minister and the government are on the same page as where the privacy commissioner wants to go?

    Teresa Scassa:

    No no. I think that what we have in the document from ISED about reforming paper essentially is is a discussion of the reform of a data protection statute. It’s data protection reform it’s not a human rights based approach to privacy or to digital rights more generally it is. It is a set of reforms to data protection laws and that may sound like a subtle distinction but I do think I do think it’s it’s an interesting and important one. We don’t actually have a right to a broad right of privacy that’s contained in that in the Canadian Charter of Rights and Freedoms there’s a right to be free from unreasonable search and seizure so there’s a search and seizure related privacy right that comes up in a number of different contexts mostly related to law enforcement. There’s been some discussion around whether the right to life liberty and security the person has a privacy dimension but it’s not extensive. If there is one and so we don’t have sort of a broader right or a set of principles around privacy.

    Teresa Scassa:

    One of the things that I think is interesting and I and I find entirely absent from this and not just this but other kind of data protection oriented things is is this is the is any addressing of the issue of surveillance. Individuals to a completely unprecedented extent or being exposed to surveillance both by the private sector. We hear a lot about surveillance capitalism and surveillance in the context of smart cities but there is just a massive data collection which is a form of private sector surveillance. And the part that doesn’t ever get talked about a great deal is the extent to which government has back channels into all of that private sector data and can carry out various forms of surveillance using those back channels for access and I’m not saying they’re gonna illicit back channels but they can get you know judicial authority authorizations or warrants and there have been disputes in the past about whether they need warrants for access to some of that information. But there are routes by which government can access the massive amounts of data in the hands of the private sector and some of those channels are set up very explicitly in the data protection laws and these are the exceptions to the requirements for consent. And so you know I think this is a part of data protection how it gets ignored which is that these exceptions to consent expand and the channels and the routes are there and the amount of data that’s being collected by the private sector expand and we never really talk about what we need to do to what kind of frameworks we need and place what kind of additional protections we need in place to manage the significant changes in both the volume of data in the hands of the private sector and the interest in government and having access to it. And I do think that we need to be thinking about that.

    Teresa Scassa:

    So you know if you want to talk about our human rights based approach to to. Privacy legislation. I’d like to see a right to be free from unjustified surveillance. And then I’d like to see what that looks like in practical terms. So this is something I think that we don’t see in the digital charter and we don’t see it in this discussion about PIPEDA and it doesn’t get talked about a great deal but I do think it is a very significant issue and one that will I think have continue to have or may have greater ramifications for example when you get data.

    Teresa Scassa:

    When we get more standardized data for example open banking and standardized financial information it’s gonna be very tempting for governments to to. To analyze large volumes of data looking for red flags or looking for patterns in the way that they now get tower dump warrants for example and and look for things within the data that they collect. And again that’s data from the private sector. So that’s a little bit of a side issue it’s not in any of these documents but to me I think this is something that we don’t talk about enough and we don’t think about enough and it’s it’s the relationship between all of that private sector data and government and how we are going to manage that relationship in a way that that that that is in the public interest. But that also protects our rights.

    Michael Geist:

    That’s an interesting perspective and it strikes me that this document particularly the privacy background stuff not only does not address that issue but it’s focused primarily on private sector and presumably the minister would say well that’s where my constitutional responsibilities are but whether we’re talking about the political parties and the ongoing gap there or even the Privacy Act which they have also said that we’re prepared to take a look at after decades of really not doing very much the focal point in terms of saying we’re going to modernize these rules is almost entirely private sector focused without really looking internally at the government itself.

    Teresa Scassa:

    Yeah. And I do think that’s really I think that’s really important because the two are now very very closely linked and in so many different ways. And you and you can see the the interaction of public and private sector again in things like Sidewalk Toronto where there’s you know there’s an increasing overlap between the things that government do and the things that the private sector do and the things that they do together and and data caught in between and so I think this is becoming more and more of a challenging issue. And so it’s true. You mentioned political parties I mean there’s that there’s a little bit in the statement about the or the document about the reform of PIPEDA that talks about how it might be necessary to look at whether the application of PIPEDA needs to be changed because there are more and more non-profit organizations that are engaged in data collection. And I was reading that and I thought this would be a place to mention political parties but they’re not there, whether they’re nonprofit organs they fall under that umbrella of non-profit organizations that we need to think about or look about. Look look at whether it’s meant to fall under that I don’t know but it’s not there in any explicit term.

    Michael Geist:

    And that’s you know it’s been difficult to get governments of all political stripes to focus internally once they get into office. It seems like making changes whether it’s on the access information side or on the privacy side is far more challenging. And I suppose it’s easier to get other people to to measure up and even that’s been difficult in terms of PIPEDA reform. When I think of the early stages of PIPEDA it talked about trying to strike a balance. Business considerations and the like and that was the way we understood business and e-commerce back in the 1990s and we clearly have some different conceptions and different models today. Can you talk a bit about some of the kinds of things the government is talking about from an updating perspective and perhaps are welcome but that are open and perhaps even long overdue in terms of some of the changes they’re trying to make.

    Teresa Scassa:

    Yeah. And I think the government has taken a serious look at at some of the challenges the need for modernization there are things in here that look a little bit like some of the things that are in the the famous GDPR that everybody’s talking about. And so for example there are some of the interesting things I mean there is there’s talk about things like data portability although it’s referred to as data mobility and that’s the idea of it’s partly data it’s data protection in the sense of giving individuals more control over their data. But it also I think is linked to both consumer protection and competition law. So it’s one of those things that’s a little bit broader in terms of its scope and the idea is that individuals would be able to take their data from one company and bring it to a new company entering the market that that will then be able to with that data be able to offer them comparable a comparable level of customized service for example. And so so there’s some discussion of data mobility it’s interesting it’s a little bit different from the GDPR in that they’re not talking about data in machine readable format but talking about data in standardized format which is a little bit different and maybe a little bit more case by case industry by industry. And so. So that’s interesting. So data mobility is one aspect there’s some discussion of.

    Teresa Scassa:

    There’s a little bit of discussion about the right to be forgotten but they’re not going there fully because there’s a court case before the Federal Court of Canada but. But it’s. That this might be something that reputational rights and linked to that the right to have information deleted for individuals asked that their information be deleted which is a dimension of that. There’s some discussion about algorithmic. Well I was gonna say algorithmic transparency but perhaps a right to explanation of automated decision making. And so again that’s something I think that people are concerned about and interested in. There’s also discussion about making changes to the rules around consent in a variety of different ways to try and make individual control over personal data more manageable so both reducing the amount of information that’s pushed at consumers and making it more accessible and easy to understand but also providing other other means by which individuals can manage their personal information and there’s some you know there’s some interesting stuff also about relying on standards and data trusts and other sorts of mechanisms to allow for management of personal information. So there’s quite a lot of stuff in there and I think it’s all thoughtful and these are you know these are directions that we need to be thinking about in terms of data protection. But that’s a lot. There’s a lot.

    Michael Geist:

    There is, I mean a lot of this really would would significantly change some of the approaches that we’ve had in the past and some of some of the kinds of things around algorithms and data mobility or portability feel pretty responsive to both open banking or some of the emerging business models that are out there. The changes to consent of caught some people’s attention and not in a good way made people think consent is the bedrock of what privacy laws are supposed to look like and this one seems to suggest that at least the government here is suggesting and consent isn’t always all it’s cracked up to be. You’re always looking for consent in every instance and a lot of people are effectively consenting to things and have no real idea what they’re consenting to. What’s your thoughts on on shifting towards more transparency and better ways of managing one’s data without necessarily saying that it’s got to be consent in every situation.

    Michael Geist:

    I mean frankly I think consent is broken the way it’s currently dealt with under in practice and under the legislation. I mean nobody can manage. Nobody has the time or the energy to manage information. And you know and in fact so many services are tied to consent. Right. You can’t proceed to get the service unless you agree to the terms and conditions and the privacy policy so that it’s not even a free choice if you actually you need to do something. You need to agree to the form it’s not like you get to negotiate it. So consent with respect to what’s happening to personal information I think becomes really quite meaningless in those contacts. So there’s. something in there that talks about taking consent out of contracts for the services which is interesting so separating the agreement to the service and the agreement to privacy that’s that’s an interesting development. And so I don’t see this as being negative with respect to consent if it’s not working right now and if people are consenting left and right as you say to anything just to get access to the service or just because there’s simply too much of a burden to manage all of this and frankly then you have to read the privacy policies and understand them and it’s that’s you know that’s not an easy thing to do. So I think that finding ways to make consent more manageable and to reduce the burden on individuals I think is important.

    Michael Geist:

    And it’s interesting I think we’re gonna end up with quite a battle there certainly from some who say you can’t you simply can’t abandon that model although I’m inclined to agree that too often the consent models feel completely illusory.

    Teresa Scassa:

    Yeah.

    Michael Geist:

    You’re consenting as a matter of course without reading it’s certainly not an informed consent. And we’ve seen that play out a number of times. Say even with the anti spam legislation where suddenly people were inundated with messages from organizations where they were purported to obtain some form of consent that was consistent with where the law was at. And it turned out that most people weren’t even aware that someone had ever thought that they’d given it that kind of consent. So once people were actually made aware of it. So hold on a second. This might try to find new mechanisms to ensure that people’s perspectives or views are better reflected in terms of how their information is managed which perhaps holds some promise.

    Teresa Scassa:

    It does hold some promise and there’s there’s discussion in the document about it increase expanding the areas for example where fines can be levied so on the enforcement side and consent is specifically mentioned for one of those so if if consent is obtained. To the or if an individual is sharing information but doesn’t consent to certain uses and the information is used for those purposes anyway or disclosed it without the consent then there may actually be the potential to to address that with fines which would certainly strengthen them which would strengthen the consent that’s being given because as you say right now you know whether what happens. I mean there’s two things. One is we may be consenting the vision of what we’re consenting to may be quite different from the reality of what we’ve consented to and that’s one problem. So that you actually have technically agreed to a whole range of disclosures that you didn’t mean to agree to. But there’s also the situation where you know you go in and you actually take the time to fix your privacy default settings and do all of this and then you find out after the fact that the information was used for purposes that you didn’t agree to. And there’s not much recourse except right now a complaint to the Privacy Commissioner which will lead to a series of findings that say that shouldn’t have happened.

    Michael Geist:

    Right. I’m glad you raised the issue of enforcement and would feel sometimes like the futility of filing complaints when all you’re left with is well-founded finding and starting from scratch at the federal court if you want something more. The government has emphasized the enforcement.

    CBC News:

    How will what you’re proposing be enforced. What kind of penalties will your government establish.

    Navdeep Bains:

    That was a key part of the changes that I talked about today. It was really about strong enforcement so significant and meaningful penalties maybe a percentage of revenue and we’re gonna be looking at other jurisdictions as well. We’re also going to be looking at how two companies even collect data or revenue and if they do not follow the privacy laws in this country we’re going to make it difficult for them not only to collect the revenue but collect data as well and this sends a very clear signal signal that enforcement is very important part of the changes that were proposing.

    Michael Geist:

    It seems to me that part of that may be driven by the news cycle and the recent Cambridge Analytica Facebook set of findings from the B.C. and Federal Privacy Commissioner in which Facebook response to those findings was well thanks but we’re not really that interested. And so the government now says we’re talking about real enforcement in fact I think I’ve heard Navdeep Bains talk about potentially global revenues and sort of modelling on the European approach and even talked about 5 percent I think in one interview which would suggest even higher than what we see out of Europe. What’s your what’s your view generally on our ability to get large global platforms to pay attention to Canadian privacy law and is the lack of enforcement one of the challenge room the real challenges we faced.

    Teresa Scassa:

    Yeah I think lack of enforcement has generally has been a challenge across the board not just with large platforms but but right across the board and in fact you know it may be even more acute with you know medium to smaller businesses in the sense that a lot of the large platforms are now paying attention to the GDPR and GDPR compliance and are at not just platforms but any large company in Canada that does business across borders is going to be you know raising their standards to the most stringent standards which are currently GDPR. And so we’ll probably benefit indirectly from from that. So I do think. But I do think that having stricter stronger enforcement measures not only will encourage greater compliance with the legislation because frankly if there isn’t really a consequence to not complying then why would you go to the expense of complying. And there is an expense there. So I think that that should make that should make a difference and I think it also may help with a general sense of futility and disempowerment among the broader population when it comes to when it comes to privacy the sense that you know people want if something goes wrong people want and they have a statute that says this is how it’s supposed to be. You know if nothing happens if there are no consequences then that’s actually I think extremely disheartening and discouraging and this document talks about trust and the importance of building trust and this idea that Canadians are going to need to be able to trust when they share these enormous quantities of personal information with companies that that that it is being dealt with appropriately so I do think the enforcement piece is appropriate there how much of a difference it will actually make people know that Facebook and other large companies are being fined left and right in Europe and and in the United States so we’ll see how much impact that has on changing things I think it will have. I think it will slowly have an impact.

    Teresa Scassa:

    That’s an excellent point. It’s really this notion between the large global platforms and the SMEs. I was reading I think was just this morning a piece in TheLogic, a digital publication focusing on the innovation economy in Canada, that was reflecting on the collision conference that took place in Toronto and they had asked a lot of CEOs and others about the charter and specifically about the privacy reforms and the response was actually exactly what you just raised. Those that are playing in a global environment said we’re already focused on GDPR like requirements and those enforcement measures. And so as long as the Canadian rules are kind of sufficiently similar or at least recognizable based on the kinds of obligations we face globally this isn’t anything particularly new. But some of the SMEs that pay far less attention potentially to some of these rules. This these may be game changers in terms of the kinds of things they’re required to do.

    Teresa Scassa:

    Yeah that’s right. And you know it’s always been whenever PIPEDA reform has come up in the past and it’s come up so many times. It’s always been this idea that it was going to have too much of a negative effect on business. And I think SMEs were a big part of that that it that it was going to have this and that it was simply going to be too costly and was going to harm business because the cost of compliance would not be feasible. Now I think the cost of non-compliance is going up. We’re seeing more and more class action lawsuits for example in Canada a really rapidly growing number of class action lawsuits in Canada over data breaches and other mishandling of personal information. So you know I think that yes there are the costs of non-compliance are there and are growing not just. It’s not just all about PIPEDA. It’s what’s also happening in other contexts too.

    Michael Geist:

    I think that’s right. One of the other things that’s happening right now of course isn’t just the privacy side and one of things that was notable I think about the way even this charter was launched was prime minister started talking about it even before Navdeep Bains did and his point of emphasis wasn’t on the privacy side to a significant extent at all it was more focused on dealing with concerns surrounding hate online and extremism.

    Justin Trudeau:

    Here’s the reality. People are losing trust in digital institutions for a whole host of reasons. They’re anxious about the future of tech and the future of data from emotional contagion experiments to major privacy breaches. These concerns are absolutely valid.

    Michael Geist:

    We’ve seen a big shift in terms of the government talking points on this and clearly the Prime Minister’s interests on this. Can you talk a bit about what the charter has to say about regulating social media companies or finding ways to deal with the harms online in a way that we at least up until recently hadn’t seen our government talking about.

    Teresa Scassa:

    Yeah and it’s interesting that this has become you know this. This has also captured so much attention and you know I find it interesting also that the focus is on hate and extremism and I think you know those are important things to be addressing. So I don’t mean to diminish that at all. There’s also the whole disinformation and other sorts of toxic behaviours online. There’s those raised some really big challenges and they raise challenges I think that are going to you know bring us sharply up against freedom of expression values on the one hand and on the other hand they’re also going to raise questions about how we’re actually going to do this. And you see this a little bit in the right to be forgotten. Because it’s one thing to talk about a right to be forgotten in the privacy context and then when you’re going to implement it. I mean there’s a whole you. There’s you almost have, you have to turn to the platforms and it’ll be the same thing with dealing with hate and extremism and misinformation is there is going to have to be some sort of relationship with the platforms in order to deal with that or to manage it. And so I think that it’s going to be interesting to see how that that’s not going to be easy.

    Michael Geist:

    No it’s not. We’ve seen some jurisdictions that may not have charter like rules take pretty aggressive positions in terms of the kinds of expectations they have for some of these platforms or intermediaries. Let’s take action against this kind of content. It was striking that one country that sort of stayed to the sidelines a little bit in the United States at least with the recent efforts post Christchurch. Part of that may be the companies are based there but part of it quite clearly is that they’ve got First Amendment rights there that may find themselves quickly conflicting with some of the expectations that we see bubbling up. I think you’re right to raise the charter. Canada, at least this Government, has moved itself more and more towards the more aggressive approach, at least in terms of some of the rhetoric but we still do have a Charter of Rights and Freedoms here that may significantly constrain our ability to at least mandate certain kinds of actions.

    Teresa Scassa:

    Yeah. And I think I mean I think I do think Canada has been maybe better at finding a balance and more open to finding a balance and I think that the the way in which our charter is drafted for example it does explicitly contain equality rights provisions and you know I think that the charter itself demands doesn’t put one right above another and demands a balance as well. So I do think that that may provide a different constitutional context but it’s it will be challenging and and it’ll be particularly challenging because it’s I think it’s going to be hard especially when you’re talking about the major platforms it’s going to be hard to do things on a piecemeal country specific basis. The global issues are going to be extremely complex because the message. You know it’s one thing if the message is coming from Canada and you know that that makes it a lot easier than if the message is coming from another country. So you know I think the global dimensions are going to make this incredibly challenging.

    Michael Geist:

    Yeah I mean we think the Equustek case of course in Canada raised this issue of Canadian court orders applying outside of our jurisdiction. And you quickly devolved to a place where if every country gets to say these are the standards that we want to see applied to access to certain kinds of content and our expectation is full scale moderation by the large platforms you’re throwing out or losing a whole lot of freedom of expression along the way and media and finding places that may not have the same kind of cultural considerations or legal rules or safeguards in place started doing decisions for countries to do.

    Teresa Scassa:

    Yeah. And then of course who are who are the the very low paid moderate haters who are reviewing the content and where are they located and you know what values influenced them and what kind of conditions are they working in and you know in some of that of course may shift to AI. But then you’ve got all of the you know. So this is this. This will be this is not gonna be solved overnight. And it’s not gonna be solved without controversy controversy either. But but but there you know there are really important issues and I think they’re becoming even more critical as we move forward. But yeah that that’s going to be tough.

    Michael Geist:

    It is. I mean it feels like that’s the case for a lot of these issues here. I mean I come back to this description of here’s a chart where there was a lot of different things raised. There isn’t an immediacy to make changes in some instances in part because as you’ve mentioned we’re in an election year and so the clock has effectively run out on full legislative change and even something beyond that is less than legislation is still difficult. I’d be remiss before we close if I didn’t pick up on you just had a little brief reference to A.I. and that’s been one of the focal points in this as well and certainly of this government, which has made significant investments in A.I. and talked more and more about A.I. policy. You’ve been named as a member of the new A.I. Advisory Council one of our colleagues Ian Kerr another member of that council. Any thoughts on the role either the council or perhaps more broadly if it’s still early days there that Canada can play when it comes to some of these A.I. policies that in some ways raise some of the same kinds of global challenges.

    Teresa Scassa:

    Yeah and I think it is early days so so there’s not a lot that I could say about the council itself. But I do think that there there are really two pieces one is the role that Canada can play internationally in influencing and in helping to develop approaches and ethical approaches and ethical guidelines and standards for artificial intelligence and sort of more global norms around the circumstances in which AI should or should not be used. And so there’s that international but there’s a domestic role as well. And I think that you know for example the government recently put in place its directive on automated decision making in the federal government which is a really interesting document. And there’s a great deal of thought went into it. And it’s meant to do to to guide and to shape how automated decision making will take place in government and we’re kidding we’re kidding ourselves if we’re if we think that that’s not already happening and that it’s not going to continue to happen and grow on a on a more significant scale. And that’s just the federal government we’ve got all of our provincial governments who are also you know looking at automated decision making and variety of forms so it’s here, it’s affecting our lives. There’s the whole private sector piece as well. So I know that the AI advisory council of course is not going to touch on what provincial governments do or any of that sort of thing. But but I think there is a tremendous amount of change that is happening and impacts that we are going to experience as a society. And and we need to be thinking about how we’re how we’re going to manage those changes how we’re going to to develop equitable fair processes and protocols whether the decision making is coming from government or from the private sector it’s going to have significant impacts in our lives. So yeah there’s a there’s no shortage of work to do on the side as well.

    Michael Geist:

    No there’s not. Well you know I think I speak for a lot of people in a way grateful that you’re on that council and grateful for the the work you’ve been doing on these challenges whether it’s through your blog and your research and the writing that you’ve done. Thanks so much for joining us on the panel.

    Teresa Scassa:

    Thank you.

    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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    39 min
  • Episode 13: Digital Charter or Chart: A Conversation With Teresa Scassa on Canada’s New Digital Charter
    Years of public consultation on Canadian digital policy hit an important milestone last week as Innovation, Science and Economic Development Minister Navdeep Bains released the government’s Digital Charter. Canada’s Digital Charter touches on a wide range of issues, covering everything from universal Internet access to privacy law reform. To help sort through the digital charter and its implications, I’m joined on the podcast this week by Professor Teresa Scassa, a law professor at the University of Ottawa, where she holds the Canada Research Chair in Information Law and Policy.
    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.
    Episode Notes:
    Canada’s Digital Charter
    Canada’s Digital Charter Represents a Sea Change in Privacy Law, But Several Unaddressed Issues Remain
    Credits:
    The Canadian Press, Innovation Minister Navdeep Bains Introduces Digital Charter
    CBC News, Security, Control Over Personal Data Outlined in Canada’s New Digital Charter
    FactPointVideo, Trudeau Announces Digital Charter to Fight Fake News, Online Hate
    Transcript:
    LawBytes Podcast – Episode 13 | Convert audio-to-text with Sonix
    Michael Geist:
    This is LawBytes, a podcast with Michael Geist.
    Navdeep Bains:
    We can’t ignore some of these new complex challenges that have emerged. At the heart of these new challenges is the fundamental question of trust. How can Canadians believe in the good of this online world when they’re confronted with a video of 51 innocent people gunned down during prayer in Christchurch and that video goes viral. How can they trust their data will be used to improve their lives wh
    39 min
  • Episode 12: The Past, Present and Future of Open Access to Law

    The free and open access to law movement is devoted to providing free and open online access to legal information. This includes case law, legislation, treaties, law reform proposals and legal scholarship. This week’s Lawbytes podcast highlights perspectives on free and open access to law from Australia and Canada. During a recent trip to Australia, I spoke with Professor Graham Greenleaf, one of the pioneers of the movement, who co-founded AustLII, the Australasian Legal Information Institute. Following in the footsteps of the Legal Information Institute at Cornell University, AustLII helped reshape legal publishing in Australia and played a pivotal role in bringing other countries’ legal materials online. The episode continues with a conversation with Xavier Beauchamp-Tremblay, the current CEO of CanLII, the Canadian Legal Information Institute, about the Canadian past, present and future of free and open access to law.

    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.

    45 min
  • Episode 12: The Past, Present and Future of Open Access to Law
    The free and open access to law movement is devoted to providing free and open online access to legal information. This includes case law, legislation, treaties, law reform proposals and legal scholarship. This week’s Lawbytes podcast highlights perspectives on free and open access to law from Australia and Canada. During a recent trip to Australia, I spoke with Professor Graham Greenleaf, one of the pioneers of the movement, who co-founded AustLII, the Australasian Legal Information Institute. Following in the footsteps of the Legal Information Institute at Cornell University, AustLII helped reshape legal publishing in Australia and played a pivotal role in bringing other countries’ legal materials online. The episode continues with a conversation with Xavier Beauchamp-Tremblay, the current CEO of CanLII, the Canadian Legal Information Institute, about the Canadian past, present and future of free and open access to law.
    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.
    45 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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