NZ Newspaper: An 'Honor' To Welcome Small Pacific Rim Countries As They Sign Away Much Of Their Sovereignty

from the most-comprehensive-and-far-sighted-economic-agreement-of-all-time dept

As we've written recently, a report from the World Bank suggests that the economic benefits from TPP will be slight for the US, Australia and Canada. New Zealand is predicted to do better, but not much: the econometric modelling predicts a 3.1% boost to its GDP by 2030 -- roughly 0.3% extra GDP per year. That's a pretty poor payback given the price participant countries will have to pay in terms of copyright, biologics and corporate sovereignty. Such details have not prevented one of the main newspapers in the country, the New Zealand Herald, from banging the drum for TPP's signing ceremony, which is probably going to take place quite soon:

New Zealand is about to have the honour of hosting the formal signing of the Trans-Pacific Partnership agreement by trade ministers from 12 nations of the Pacific rim. And it is an honour. This is the most comprehensive and far-sighted economic agreement the world has seen in our lifetime, possibly of all time.

Rather bizarrely, the editorial goes on to list TPP's many problems:

The TPP's intellectual property discussions raised the risk that US patent law and copyright protection of pharmaceuticals and other products of investment in science and research could be strengthened at considerable cost to public purchasing agencies, such as Pharmac, and innovation in digital technology in other countries. Medical professionals and IT developers have been among those fearful of the TPP during the course of its negotiation. So were environmentalists and public health promoters. They feared the inclusion of investor-state dispute settlement procedures could stop governments taking action in the interests of public health or the environment that would reduce the value of commercial investments.

At this point, you might expect a refutation from the editorial, and a compelling explanation why all those concerns proved misguided. Instead, it notes that many of these fears were stoked by the insane secrecy surrounding the negotiations, and suggests that since the text was released two months ago, everything's OK now. The editorial has to admit that yes, there are 6000 pages that need to be read, but points out that the final text has provided great summer holiday reading for those in the Southern Hemisphere. It then makes the following claim:

The precise terms seem to have survived scrutiny so far.

In fact, the release of the TPP text has amply confirmed the main worries regarding just about every aspect of the deal. For anyone wanting a quick catch-up on the major problems there, Michael Geist is running a helpful series with the self-explanatory title "The Trouble with the TPP":

[I] wanted to expand on the trouble with the TPP in more detail. With that goal in mind, I plan to post each weekday until February 4th on problems associated with the TPP. The series will include posts on copyright, privacy, Internet governance, and many other issues.

Maybe the editors at the New Zealand Herald should read the series before the TPP signing ceremony, so that at least they understand why the following is not going to happen:

It is too much to hope any fears now assuaged [sic] will reduce the scale of protest at the signing. But it should not be too much to ask that those philosophically opposed to free trade respect the views of those who disagree with them, and let this country host the occasion with dignity and pride.

Dignity, maybe. But pride? That's hardly appropriate given what is really happening here.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: australia, canada, corporate sovereignty, new zealand, signing, tpp, us

World Bank Report: TPP Will Bring Negligible Economic Benefit To US, Canada And Australia

from the well,-that's-awkward dept

Supporters of TPP generally insist it's absolutely worth doing, despite any infelicities it might contain, because of the huge overall economic benefit it will bring to participants. But when challenged, they are unable to cite any credible evidence for that claim. That's because there isn't any: despite the impact that TPP's measures will have on how the US and other countries do business, there are astonishingly few studies on whether it will indeed have a positive impact overall. Just over a year ago, we wrote about one of the rare attempts to model TPP, commissioned by the US Department of Agriculture, which came up with the following result for countries like the US and Australia:

TPP is projected to have no measurable impacts on real GDP

However, that particular study only looked at the effect of removing traditional tariffs; as it pointed out, TPP includes other elements that might also boost GDP. Fortunately, we now have a new report from the World Bank, no less, which took into account all aspects of the proposed deal. Here's the summary of what it found (pdf):

The model simulations suggest that, by 2030, the TPP will raise member country GDP by 0.4-10 percent, and by 1.1 percent, on a GDP-weighted average basis.

That's a little vague: 10% GDP increase is very different from only 0.4%, so it really matters who gets what. The detailed figures are as follows:

Vietnam -- 10%
Malaysia -- 8%
Brunei -- 5%
New Zealand -- 3.1%
Singapore -- 3%
Japan -- 2.7%
Peru -- 2.1%
Mexico -- 1.4%
Canada -- 1.2%
Chile -- 1%
Australia -- 0.7%
US -- 0.4%

But those figures too are misleading, because they refer to the cumulative GDP gain from TPP by 2030. It's not clear when the World Bank econometric model assumes TPP will come into effect, but by 2030 it's clearly been running for at least ten years, and maybe even 12. That means all of the figures above need to be divided by at least a factor of 10 in order to arrive at the annual boost to growth, which provides a better measure of TPP's impact than the overall figure.

So according to the World Bank's figures, the US will gain an extra 0.04% GDP per year on average, as a result of TPP; Australia an extra 0.07% annually, and Canada a boost of 0.12% per year. In other words, they differ from the USDA's earlier projection of "no measurable impacts on real GDP" by amounts that are so small they will be swamped by the general imprecision of the model -- trying to predict what will happen to a big chunk of the global economy out in 2030 is hard, and that's putting it mildly.

The fact that two econometric models of TPP's effects, both from highly-respected institutions, predict that TPP will produce vanishingly-small economic benefits for key countries, including the US, could explain why there are so few such studies. A cynic might suggest that others were started but generated such inconveniently-awful outcomes that they were quietly dropped and never published.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: australia, canada, economics, tpp, us, world bank

Canada Prepares To Force Cable Companies To Provide Cheaper, A La Carte TV

from the forced-adaptation dept

In March of last year, Canadian regulators announced they were combating high TV prices by trying something new: forcing the country's cable companies to offer "a la carte" (pick your own individual channels) TV. The CRTC's full ruling declared that by March 2016, all Canadian TV providers must provide a $25, discounted base bundle, letting users pick and choose individual channels beyond that. A la carte has long been a popular idea in both Canada and the States, where in the latter users receive on average 189 channels -- but usually only watch about 18 of them.

But while both Canada and the U.S. have long had an on-again, off-again love affair with the idea of a la carte TV, the pay TV industry has long argued the idea would damage the economics of pay television, eliminate jobs, kill off smaller niche channels while driving up prices and confusing customers. The problem is that niche channels are already dying; cable operators looking to battle tightening margins have dropped lower rated options like The Tennis Channel or The Weather Chanel. And prices, as you may have noticed, are skyrocketing at an unsustainable rate.

While U.S. regulators bought the industry's argument and backed off a la carte inquiries, Canadian regulators didn't, and their choice will be interesting to watch. It's effectively an attempt to force evolution on an industry caught in an unsustainable price-hike death spiral. And as the March deadline gets closer, Canadian cable and broadcast industry reps are begrudgingly admitting that the idea may lower rates for some Canadian TV viewers, but not if they enjoy sports:

"Clearly the most expensive [channels] will always be sports," says (Gary) Pelletier, president of the Canadian chapter of the Cable & Telecommunications Association for Marketing. "At the end of the day, for sports watchers, their cable bill will probably stay the same or increase, maybe.... In the case of someone who doesn't watch any sports at all, their bill will probably decrease."

In contrast, independent analysts have predicted that the average Canadian consumer will save anywhere from $5 to $21 per month. But Pelletier and the cable industry are quietly confident because they know that even if they lose money on tightened cable TV margins, they can always extract their pound of flesh by squeezing usage-capped Canadian broadband subscribers harder:

"While some consumers might be tempted to drastically reduce how much they pay for TV, Pelletier warns it could cost them in another way. Supplementing a slimmer cable package with a streaming service or two could increase data charges, Pelletier says. Plus, you may have to surrender any discounts you get from bundling cable with home phone, internet and/or wireless service. "If you cut your cable, then your internet is going to go up," predicts Pelletier."

And by "predict," Pelletier (whose organization is stocked with North American cable companies) means that's exactly what cable companies will do. In other words, your TV bill will be lower, but your broadband bill will be higher. And nothing really gets fixed if regulators don't address the lack of competition in the broadband space that lets usage caps (a glorified price hike) thrive in the first place. That's why this sort of thing could prove to be a regulatory slippery slope, when the easier path might have been to keep the focus on broadband competition -- and just wait for traditional cable service to slowly implode in the face of the cord cutting revolution.

Filed Under: a la carte tv, cable, canada

Canada Too Has An Issue With Arbitrary Applications Of Morality In Trademark Applications

from the you-bastards dept

In our recent discussion about the delightfully vulgar filing by the Washington Redskins in an effort to point out the arbitrary application of morality by the government to trademark law, the point in the filing was driven home by just how many similarly vulgar and offensive terms the USPTO has been happy to sanctify with a valid trademark. Perhaps some of you out there thought that this was a uniquely American problem, something resulting from our overabundance of political correctness. It's not. A case in Canada over the trademark application for "Lucky Bastard Vodka" shows this quite well. It also shows the inherent problem in trying to have a government institution apply morality to business in this way.

In 2011, LB Distillers applied to the Canadian Intellectual Property Office (CIPO) to register “Lucky Bastard vodka” as a trademark. About eight months later, the agency responsible for trademarks, patents and copyright replied.

“The examiner came back and said it was immoral, scandalous and obscene, and that the general population of Canada would agree that it was an immoral name,” LB Distillers co-owner Cary Bowman said.

The micro-distillery’s appeal was rejected in 2012, but the company persisted, filing a separate application to register “Lucky Bastard.” On Oct. 8, CIPO sent a letter to LB Distillers stating that it “does not appear registrable” because it violates the Canadian Trade-marks Act, which prohibits trademarks that include “any scandalous, obscene or immoral word or device.”

So, here, as with the Redskins, we have a trademark office refusing a business a trademark because of the offensive nature of a word -- "bastard," in this case. Now, we could have a giant discussion over whether or not that word is truly offensive, as LB Distillers indeed tried to do with the government. Or, on the other hand, as LB Distillers also did, it could instead simply point out the blatant and glaring hypocrisy of the government's position.

A search of the trademark database reveals several containing the word “bastard” — including Fat Bastard wine, he noted. The situation amounts to one examiner applying his or her views to the process, he said.

“When it’s one person who’s deciding the fate of something like that, and they’re basing it maybe on their own morals as opposed to anybody else’s, and yet calling it everybody else’s, that’s quite unfair.”

And, really, that's the problem with these cases. We may think of trademark offices or government more generally as a sort of singular entity within our minds, but they're all just ultimately made up of people. People with differing views, different sensibilities, and different tolerances for different words. With both the American and Canadian trademark provisions around offensive langauge being so open to interpretation, what ends up happening is that these examiners are left to apply their own morality to these cases, which of course means that such morality will be applied inconsistently across all applications. That's how you get "bastard" being rejected by one examiner while it's already been approved by others. And that's partly why an appeals court found the part of trademark law that allows this in the US unconstitutional last week.

There are two possible solutions to this problem. The first is to harmonize the morality standards across all examiners in a trademark office so that they all apply government morality consistently. If that sounds impossible to you, it's because it is impossible. The only workable solution is to get trademark examiners out of the morality business entirely and judge these things purely on business and commerce grounds.

Filed Under: canada, disparaging, free speech, lucky bastard, morality, offensive, redskins, trademark

TPP Ratification Process Grinding To A Halt As Canada Launches 'Widespread Consultations' On The Deal

from the vicious-circle dept

As we noted recently, the arrival of a new government in Canada has meant that the corporate sovereignty provisions in CETA, the Comprehensive Economic and Trade Agreement between Canada and the EU, might be re-examined, even if they are unlikely to be dropped completely. The other major trade deal involving Canada, TPP, is much more complex, since there are 11 other nations to consider. Although that limits the Candian government's scope for changing course, it appears that it is nonetheless taking a radically different approach compared to its predecessor. Where Stephen Harper's government was unwilling to involve the public in any way, Justin Trudeau's team seems willing at least to ask for their views:

The Liberal government, under pressure from labour unions fretting about what they fear will be big job losses once TPP comes into effect, have launched widespread consultations on the deal. This could take considerable time, said the government, which strongly advocates the idea of free trade.

As that paragraph from an article in The Globe and Mail makes clear, the Canadian government is still keen on TPP, and aims to pass it, but it does seem that the process is going to take far longer than originally envisaged. According to The Globe and Mail, Canada aims to sign soon, but not ratify it -- the final part of the process. That's in part because it's not at all clear when the US will get around to its own ratification. Doubts about the US timetable have increased after The Washington Post published the following:

Senate Majority Leader Mitch McConnell (R-Ky.) dealt a significant blow to President Obama's global trade agenda Thursday, declaring that a sweeping pact with 11 Pacific Rim nations should not be sent to Congress for approval until after the 2016 elections -- and maybe not until after Obama leaves office.

McConnell, who previously supported efforts to enhance Obama's trade negotiating powers, signaled that he was undecided on how he would vote on the deal, but he was clear that the Trans-Pacific Partnership (TPP) would be defeated if it were sent to Capitol Hill next spring or summer, as the administration was planning to do.

That uncertainty is unnerving other TPP nations, as The Globe and Mail notes:

"Why would you expend any political capital on ratification if the whole process isn't going anywhere?" said an official from a third TPP nation.

One consequence of the other TPP parties not ratifying the agreement quickly is that it makes it even harder to pass the agreement in the US -- a classic vicious circle:

“It would certainly be helpful if other nations moved to ratify,” said a U.S. official familiar with the matter.

That's clearly not going to happen anytime soon in Canada, as the government there makes good on its promise to consult the public on the deal. TPP may be done, but it's by no means dusted.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: canada, justin trudeau, ratification, tpp, us

Nova Scotia Court Strikes Down Province's 'Unconstitutional' Cyberbullying Law

from the back-to-the-legislative-drawing-board dept

Nova Scotia's horrible cyberbullying law -- with its broad definitions of bullying, lack of due process and a wholly ex parte accusation process -- emerged from the suicide of a teenage girl. Like many laws written in the wake of a tragedy, it was a hodgepodge of good intentions bundled in "do something" legislating. The resulting statute was terrible and destined for abuse.

A Canadian court first challenged the law in April 2015, nearly two years after it passed. The law, written with a bullied teenager in mind, was now being used by adults as a proxy for a defamation lawsuit, with the plaintiff likely figuring the broad language would result in a more favorable decision.

The court, however, wasn't interested in using a bad law for worse ends. It revoked an order issued under the statute and stated the element of actual malice needed to be factored into decisions under the legislation. This element freed otherwise uninvolved third parties (like ISPs) from being implicated simply because their services were used in the commission of cyberbullying and at least provided some form of defense against ex parte accusations.

Now, that same court has gone further, striking the Act down as unconstitutional. (via How Appealing)

Supreme Court Justice Glen McDougall released his decision on Friday, ruling the anti-cyberbullying law must be eliminated right away — unlike other court decisions that have struck down legislation but offered politicians a one-year grace period to rewrite the laws.

"The act must be struck down in its entirety. The attorney general has not persuaded me that a temporary suspension is warranted," McDougall wrote.

"To temporarily suspend the declaration of validity would be to condone further infringements of charter-protected rights and freedoms."

So, no one-year grace period to fix the law. Legislators will need to start from the ground up, a situation apparently uncommon when the courts find laws objectionable. This gives more credence to those who called the law out two years ago for its ability to turn everyone into a "cyberbully."

A stat included in one report, which was possibly supposed to indicate the law's worthiness, instead seems to imply the anti-cyberbullying legislation was overkill.

That means the CyberSCAN unit at the provincial Department of Justice — created to investigate allegations of cyberbullying under the law — will stop working on 35 cases and shift its focus to public education and awareness.

A department spokesperson told CBC News that in the last two years, they worked on 800 complaints, with many of the cases involving harassing photos or bullying comments that were removed or stopped without the involvement of police.

The cases that have ended up in court seem to be the result of plaintiffs looking to avoid the more rigorous demands of defamation lawsuits by using ex parte accusations and the resulting court orders to block the accused from making further derogatory statements.

The only other statement issued by the government in response to the court's decision comes from the Justice Department, which unhelpfully and redundantly notes the bad law was motivated by only the purest of intents.

The Justice Department issued a statement saying an independent review of the Parsons’ case by a former Ontario chief prosecutor found the law was a “novel and directly responsive solution” to address cyberbullying.

“The intent of the legislation is good, and had all-party support when it was passed,” it added.

Well, maybe both parties can put together something better for version 2.0, now that there's time, distance and hindsight available to help guide them towards better legislation.

Filed Under: canada, cyberbullying, free speech, nova scotia, offense

CETA's Festering Wound: Corporate Sovereignty

from the just-chop-it-out dept

Remember CETA, the Comprehensive Economic and Trade Agreement between Canada and the EU? Even though the text was "celebrated" back in October 2014, it is still not ready to be presented for possible ratification. As Techdirt has been covering, it's pretty clear that the problem area is the corporate sovereignty chapter, because of concerns about the huge power it grants to Canadian (and US) corporations. First there were hints that Angela Merkel wanted the so-called "investor-state dispute settlement" (ISDS) mechanism changed. Then France said the same -- twice. Most recently, the EU commissioner responsible for trade and trade agreements, Cecilia Malmström, indicated that it wouldn't be possible re-open the corporate sovereignty chapter, or to move away from "classic" ISDS to the re-branded version known as the Investment Court System (ICS), which the European Commission is pushing in an attempt to head off growing opposition to the whole idea.

However, the arrival of a new government in Canada seems to have changed the situation once more, as Politico.eu reports:

With the new liberal government in power, there is hope for more flexibility to amend the [CETA] agreement via legal scrubbing, while not officially reopening it.

"We’re prepared to work with the EU to work in the direction of an international court for investment disputes," Canadian negotiator Verheul said. "But if the EU is going to press us to adopt an appellate mechanism that would certainly involve quite a bit of further discussion … We recognize that's a longer-term exercise."

There are obviously some mixed signals there: yes, Canada is willing to tweak the details of the ISDS chapter, but no, it isn't prepared to go all the way to the Investment Court System -- probably in part because it doesn't exist yet, and its details remain sketchy. It's by no means clear how this will all work out in practise, but it does confirm that corporate sovereignty remains a festering wound in the CETA text, as it does in TAFTA/TTIP, where formal discussions about ISDS and/or ICS haven't even started (pdf).

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: canada, ceta, corporate sovereignty, eu, isds, trade

Cable Company Publicly Shames, Lectures Overdue Customers On Facebook

from the punishment-in-the-public-square dept

Apparently bored by the traditional route of collection agencies and courtesy, one Canadian cable operator recently decided to try something different: it started posting the names and account balances of customers with overdue accounts on Facebook. After complaining that it "always get excuses from everybody," Senga Services in Fort Simpson, Canada started posting the notices to all manner of local community Facebook pages. Not content with that, at least one of the company's representatives thought it was a good idea to lecture locals on fiscal responsibility and living "within one's means":Not too surprisingly, locals weren't too impressed with the cable operator's new bedside manner:

"Connor Gaule, an administrator of the popular Fort Simpson Bulletin Board page, took the post down immediately. "I thought that it was kind of illegal for her to be posting the people in arrears," he said. "And there's better ways to go about it. Especially on social media, where half the people on that list are elders that don't have access to that."

...Michelle Léger, a Fort Simpson resident studying in Fort Smith, said the post "just wasn't right." "If I had been a person on that list, I would have been really embarrassed," she said. "It's publicly shaming people. That's kind of abusive to your customer base."

Except, as we all know, the cable company doesn't have to care about whether or not it's abusing its customers, because usually it's the only game in town. Senga responded by insisting that not only was the practice effective, it's legal under Canada's Personal Information Protection and Electronic Documents Act for companies to disclose personal information without consent -- if "the disclosure of the information is necessary in order to collect a debt owed to the organization."

Not true, says the Canadian government. A few days after the original story broke, the CBC asked the Office of the Privacy Commissioner of Canada whether Senga's behavior crossed the line, and the agency stated the law doesn't say what Senga thought it did:

" In an email response, Tobi Cohen, a senior communications adviser at the office, told CBC that Senga Services had been contacted and "the company has complied with our request to take down the post." Cohen wrote that the Personal Information Protection and Electronic Documents Act "allows organizations to use or disclose people's personal information only for the purpose for which they gave consent."

"There is also an over-arching clause that personal information may only be collected, used and disclosed for purposes that a reasonable person would consider appropriate under the circumstances." Cohen also wrote that were an individual to make a complaint to the Office of the Privacy Commissioner, the office "could look at investigating further."

After a wrist slap from the Privacy Commissioner Senga has backed away from the practice, and returned to what cable companies historically do best: doing a piss poor job of providing an extremely expensive service.

Filed Under: canada, public shaming, social media
Companies: senga services

Canadian Supreme Court Says Tech May Advance, But It Will Never Outrun Collection Societies

from the Moore's-law-but-for-license-fees dept

Michael Geist has a long and detailed post on the Canadian Supreme Court's finding that broadcaster CBC does owe royalties on incidental copies of content controlled by SODRAC, a Quebec-based copyright collective.

As odd as it seems, the CBC has always paid SODRAC for incidental copies created during the production of broadcasts, including those made when shifting broadcasts to content management systems or temporary copies made to facilitate broadcasts.

The CBC had argued that it shouldn't have to pay royalties on these incidental copies, as they do not generate revenue and only exist temporarily before being deleted. SODRAC countered that the CBC has always paid these fees before, dating back to the analog era.

At the heart of the issue is neutrality: technological neutrality. The CBC says "neutrality" means not having to pay for temporary copies of content because it should be covered (or at least exempt) by the fees it already pays to license music from SODRAC. SODRAC, however, defines technological neutrality as "collecting the fees it always has," even if transitory copies are much more transitory.

SODRAC won part of the battle. It will continue to collect fees on transitory copies. How much it will get to collect for these reproductions will be decided by the Copyright Board, which the Supreme Court is urging to examine this in light of the shift in technology. Theoretically, this should result in per copy fees being lowered, but that's still to be determined.

Geist points out that the court's decision comes to several good conclusions, but also one really bad one.

First, the good:

The principle of technological neutrality is recognition that, absent parliamentary intent to the contrary, the Copyright Act should not be interpreted or applied to favour or discriminate against any particular form of technology. It is derived from the balancing of user and right-holder interests discussed by this Court in Théberge — a “balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator”: para. 30. Because this long-standing principle informs the Copyright Act as a whole, it must be maintained across all technological contexts: “The traditional balance between authors and users should be preserved in the digital environment”.

The court also takes a shot across the bow of many "copyright collectives" by refusing to buy into the "more copies = more money" theory.

The notion that “more copies mean more value and thus, more royalties” is appealing in its simplicity. However, it is out of step with the principles of technological neutrality and balance.

That's not the only shot the court took. It also undercut the copyright collectives' "job security."

[T]he court ruled that the Copyright Board may not compel a user to agree to the terms of a licence against the will of a user. In other words, Copyright Board tariffs are optional, not mandatory. This aspect of the decision will have clear reverberations for Access Copyright as educational institutions have assurances that they can decide for themselves if the collective’s licence is necessary and not have it mandated for them.

But for all the good it may have done with these determinations, it undermines them by muddying the waters in term of defining "technological neutrality" and leaving many of the controlling factors in the copyright collectives' hands.

The concern stems primarily from the majority’s decision to effectively expand technological neutrality to include not only a functional equivalence analysis (ie. ensuring that functionally equivalent technologies that are doing the same are treated equivalently) but add in a complex layer of valuation that will make judgements on royalties exceptionally subjective and uncertain.

For an outsider, the promise of court battles to come -- thanks to differing "subjective" judgments (licensees vs. licensors) -- may seem interesting/amusing. But it does no favors for the actual participants. And it does even less for participants who aren't SODRAC or an equivalent.

The future complexity from the case comes from the majority’s extensive discussion on how technological neutrality factors into questions of valuation. SODRAC had argued that it did not factor at all. The majority disagreed, concluding that technological neutrality applies to both the interpretation of the Copyright Act and its application. In doing so, the majority identifies factors for the Copyright Board to consider that have nothing to do with the rights held by the rights holder:

Relevant factors will include, but are not limited to, the risks taken by the user, the extent of the investment the user made in the new technology, and the nature of the copyright protected work’s use in the new technology. The Board must assess the respective contributions of, on the one hand, the risks taken by the user and the investment made by the user, and on the other hand, the reproductions of the copyright protected works, to the value enjoyed by the user. In this case, where the financial risks of investing in and implementing new technology were undertaken by the user and the use of reproductions of copyright protected works was incidental, the balance principle would imply relatively low licence fees to the copyright holder.

As Geist points out, even though this would seem to suggest that a "technologically neutral" approach -- in addition to other mitigating factors -- would push royalties on incidental copies closer to what they should be -- zero -- the court goes on to say "it will never be the case" that an owed royalty will amount to nothing. As soon as rights are "engaged," fees will follow, even if they're supposedly not mandatory and tied to fleeting copies made only to facilitate broadcast of a "finished" product. This also seems to suggest that while entities may have been given the right to "opt out" of licensing agreements, there won't be too many who will see this decision upheld by lower courts should collection societies force the issue.

As Geist sums up, the court aims for "technological neutrality" but hampers its own effort by taking the SODRAC view: fees have always been collected, therefore fees must always be collected.

The court has previously emphasized the need to prevent imposing additional, gratuitous fees on the user simply for the use of more efficient technologies. This decision runs directly counter to that, by actually supporting higher royalties for more efficient technologies.

As it stands, SODRAC et al will still collect royalties for copies that are never "distributed." It may not be as much as it was hoping for, but the Supreme Court has guaranteed that no matter how efficient technology may become, it will never eliminate those seeking to collect rent on nonexistent property.

Filed Under: canada, collection societies, copyright, incidental copies, royalties, tech neutrality
Companies: cbc, sodrac

Ontario Passes Law Targeting Bogus Defamation Lawsuits

from the fewer-lawsuits,-more-apologies dept

Good news for Canadians! Well…some of them. This good news only applies to a) Ontario residents who a.1) aren't vexatious litigants who use BS defamation lawsuits to silence critics.

Bill 52, which changes the Courts of Justice Act, the Libel and Slander Act and the Statutory Powers Procedure Act, received royal assent Nov. 3.

The bill contains a provision that "would allow the courts to quickly identify and deal with lawsuits that unduly restrict free expression in the public interest, minimizing costs and other hardships endured by the defendant," said Yasir Naqvi, Ontario's Liberal Community Safety and Correctional Services Minister, last March during a debate on the bill. "It will extend qualified privilege in defamation law under the Libel and Slander Act."

In other words, it's an anti-SLAPP law. A handful of states in the US have recognized the damage bogus litigation can do to defendants even when plaintiffs clearly don't have an actionable case. Laws like these also neutralize the chilling effect of bogus legal threats. Holding frivolous litigants responsible for legal fees tends to greatly reduce the number of questionable cease-and-desist demands issued by would-be litigants.

That such a law would be passed in Canada is somewhat of a coup considering its courts' bizarre decisions in defamation cases. In some cases, courts have come to rational conclusions (Google is not a "publisher" of defamatory material simply by linking to it in search results). In others, courts opened up brand new avenues of liability, like in the case of blogger Michael Veck, who was ordered to pay $10,000 to the defamed party despite only re-posting what another writer had actually written.

How this law will mesh with inconsistent views on who is or isn't a responsible party in defamation suits remains to be seen. But for now, it will hopefully prevent this sort of thing from reoccuring.

During a debate in the legislature, Progressive Conservative MPP Sylvia Jones recounted a case in British Columbia where a person sought a permit to convert forested land into farmland. A neighbour objected over concerns "about a possible negative impact on the streams that flowed through his land," she said.

The township decided "that it needed more time to measure the environmental impact of the application," noted Jones, MPP for Dufferin-Caledon.

"The claimant sued the defendant, the organization which she was involved with and another individual, claiming $13 million in damages against all three," she said. "The claim against the defendant herself was for $5.5 million."

A judge determined "that the claimant had provided no evidence of his allegations against the defendant," Jones noted, but the defendant's legal costs were more than $20,000.

Unfortunately, the law doesn't appear to be quite as robust as some other anti-SLAPP laws we've seen. There is a fee-shifting provision, but the law is strictly limited to matters of "public interest," which means a motion to dismiss under this law will be more difficult to get granted should the court decide the allegedly libelous statements do not pertain to public interest matters.

That being said, most bogus defamation suits tend to brought by people who are public figures to some degree, so this should result in a few potential litigants deciding they're better off fighting speech with speech, rather than with legal letterhead and court filings.

Filed Under: anti-slapp, canada, free speech, ontario, slapp