Canadian Delusions: ACTA Supporters Pretend It's Just About Counterfeit Goods

from the if-only dept

One of the nastier tricks of copyright maximalists has been to lump together "counterfeiting" with "copyright infringement" in an effort to conveniently jump back and forth when making silly arguments. Basically, they can argue that copyright infringement is a huge issue, because of the massive amount of unauthorized sharing that happens online. But they have a lot of trouble showing real harm. On the other side, counterfeiting really isn't that big of a problem when you look closely at the details, but there are a few, extremely limited cases (faulty counterfeit airplane parts, some fake drugs) where there could be real harm. So if you lump them all together you can claim "massive problems" with "real harm." But that doesn't work if you look at them individually.

We recently wrote about some Canadian politicians introducing a bill to get Canada in compliance with ACTA, despite the fact that ACTA has been totally discredited around the globe. Some political opponents are now pushing back on that, calling the bill in question an attempt to get ACTA in "through the backdoor." However, in response Canadian Industry Minister, Christian Paradis, just keeps repeating the "counterfeiting" mantra and ignoring the entire ACTA elephant in the room. Amusingly, Paradis seems unable to even admit that there are concerns here:

During Question Period on Monday, Borg asked Industry Minister Christian Paradis directly if the bill paves the way for ratification of the discredited treaty:

Mr. Speaker, last July the European Parliament rejected the anti-counterfeiting trade agreement over serious concerns about the regressive changes it would impose on intellectual property in the digital age. Yet on Friday, the Conservatives introduced a bill in the House that would pave the way for the ACTA without question. Canadians have concerns about goods being seized or destroyed without any oversight by the courts. Will the minister now be clear with Canadians? Are the Conservatives planning to ratify ACTA, yes or no?

Paradis refused to respond to the ACTA ratification question:

Mr. Speaker, we are very happy to have introduced an anti-counterfeiting bill in the House. Counterfeiting is a growing problem in Canada. Counterfeiting deceives Canadians and is linked to security-related issues. So it was our duty to modernize the legislation to ensure that we can end counterfeiting, so that Canadians are not deceived, and to provide better security.

Borg tried again with a direct link between Bill C-56 and ACTA:

Mr. Speaker, a number of countries have rejected this unacceptable agreement. The anti-counterfeiting trade agreement - ACTA - was drafted behind closed doors and would incriminate the daily users of cultural content. This agreement will turn our border officers into instant copyright experts, without the adequate legal support. Canada must seriously study the problem of counterfeiting. However, the failure of Bill C-30 means that Canadians do not have faith in this Conservative government. Is Bill C-56 not simply a way to support ACTA through the back door?

Paradis ducks the question once again:

Mr. Speaker, let us be clear: Bill C-56 is a way to support and protect Canadian families.

Counterfeiting is a growing problem that must be stopped. Counterfeiting deceives Canadians and poses risks to the safety of Canadians. We must ensure that the legislation is updated and appropriate in order to equip the authorities with effective tools to fight counterfeiting, which is exactly what was introduced on Friday. If the NDP is responsible, I hope they will support us.

See the talking point? When asked about ACTA just lie and repeat "counterfeiting is a serious problem" over and over and over again, despite little proof to actually support that. And, when really challenged, pull out the "it's for the children" card by saying that it's needed to protect families. Yes, the families of the US-based executives of the legacy entertainment industry.

Filed Under: acta, canada, counterfeit

National Post Wants $150 To Quote Articles (Even The Parts It Quoted From Other Articles)

from the double-standard dept

Update: Since this morning, National Post seems to have disabled this feature. Whether the change is permanent or not I can't say.

Despite three years of journalism school and several more working at newspapers, I'll never understand the double standard that journalists and publishers have when it comes to copyright and fair use/fair dealing. The act of reporting relies heavily on the latter, and the news business would be a very different place if newspapers were expected to pay licensing fees on the quotes they gather from experts, reports and other sources. Thus, newspapers have traditionally been staunch defenders of fair use—that is, until they find themselves on the other side of the equation.

Through Michael Geist we learn that Canada's National Post (disclosure: I used to work for the paper as a freelancer) is trying out a highly disruptive new "feature" that attempts to scare people out of quoting the articles without paying up:

If you try to highlight the text to cut and paste it, you are presented with a pop-up request to purchase a licence if you plan to post the article to a website, intranet or a blog. The fee would be $150. ... If you click no to the pop-up, you cannot copy the text. If you click "quit asking me", the request stops.

I've seen newspapers with "license calculators" for quotes before, and of course we've all seen websites that frustratingly interfere with your copy-and-pase or right-click abilities—but this is the first time I've seen the two combined. The system is driven by iCopyright, a plugin that promises to make it "super easy" for people to license your content, but I guess not so easy that people won't hopefully feel compelled to pay.

This isn't just a dumb idea—it's a really hypocritical game for a newspaper to be playing. Geist underlined the irony by pointing to the regular Post feature Full Pundit, in which writer Chris Selley does a roundup of editorial and opinion columns from the week in Canadian media. Naturally, this involves lots of quotes and snippets from these other media sources, which Selley then expands on or disagrees with or otherwise comments upon—all unlicensed quotes, the use of which is clearly protected under Canada's fair dealing laws for commentary and criticism (and would be equally protected in the US under fair use laws). But if you try grabbing a snippet from Full Pundit, you'll be asked to pay a license. Worse still, if you try to grab one of the quotes from another newspaper on the National Post site, you'll still get the same popup telling you to look into licensing options... for a quote they don't own and are themselves using for free on the basis of fair dealing.

The popup does not mention fair dealing or fair use. It takes some digging to find iCopyright's fair use statement, which is a masterpiece of menacing disingenuousness. As we've noted in the past, the fact that the boundaries of fair use and fair dealing are often unclear creates a massive chilling effect, since people are unsure about their rights and not always willing or able to fight for them, and iCopyright relies on that very effect to scare people into paying up:

The use of excerpts from others' works without a license is permitted in certain limited circumstances under the "fair use" doctrine of U.S. Copyright Law and the "fair dealing" doctrine in Commonwealth nations. However, republication on the internet, without a license, of even a small portion of a work can constitute copyright infringement.

The distinction between "fair use" or "fair dealing" and infringement is not easily defined because each re-use has unique characteristics that must be analyzed. For example, there is no specific number of words or lines that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. For additional information you may want to do an internet search of "fair use checklist" and "copyright myths."

Got that? "It's pretty hard to know if something's fair use, so you probably shouldn't bother." The page then offers a list of factors that often come up in fair use analyses, and suggests that if any of them apply to your use, it is "cause for serious reflection" on whether or not you are protected:

• Is the excerpt such that the reader may feel he/she already has the gist of the original work and no longer needs to read it?
• Is it your intent to earn money, whether through ads, subscription revenues, or otherwise?
• Is the work that was excerpted highly creative?
• Are you choosing not to exercise an affordable and accessible licensing mechanism?
• Are you publishing the excerpt widely, such as on the Web?
• Is the work of excerpted authors the main draw to your work as opposed to serving as a "footnote"?

Now, it's true that all of those are factors that can matter, but it's also true that you could answer 'yes' to virtually all of them and still be within the bounds of fair use/fair dealing. This is easily demonstrated by looking at the snippets within the National Post Full Pundit columns, which are a definitive "yes" on all but the first item. The issue of quote length is doubly amusing, since the Post recently lost a lawsuit it brought against an internet forum, because the Supreme Court declared that posting large snippets (multiple paragraphs) of articles can still be fair dealing, and that the established fair dealing exceptions for "news reporting" can include things like online forum discussions.

And that's where we see the double standard emerge. For a long time, newspapers really were the only source for news reporting, and thus over the years they got some special considerations in the laws and in the courts. Today everyone is a reporter, a photographer and a publisher, and these non-ink-stained wretches are quite rightly utilizing the same rights that "official" news sources have, for the same purposes. Newspapers like the National Post seem to have a hard time getting their head around that, so they launch lawsuits against forums and stick pointless bullying popups on their websites. It strikes me as a matter of arrogance more than anything else.

And, of course, it has to be asked: what is this going to accomplish? It's certainly not going to become a massive revenue stream for the paper, with bloggers (who are becoming well-versed in fair use and fair dealing themselves) forking over $150 every time they want to quote the National Post. There is another possibility, which is that it's a legal tactic: in future lawsuits, the Post could point to this popup tool as an "available and affordable license" that someone chose to forego, giving them a slight leg up in an anti-fair-dealing argument.

Either way, it's a hypocritical and even somewhat despicable move. The National Post is fighting against an important legal protection that is vital to newspapers themselves and to free speech as a whole. Here's hoping that the writers featured in Full Pundit columns, and anyone else quoted in the Post, calls up the newsroom and demands a $150 licensing fee.

Filed Under: canada, copyright, fair dealing, fair use, journalism, quotes
Companies: national post

Despite Threat Of $50,000 Fine, Montreal Designer Plans To Release More 'Real World' Counter-Strike Maps

from the if-at-first-you-don't-get-sued,-try,-try-again dept

Recently, we covered the story of a Canadian Counter-strike enthusiast who created a map based on a Montreal metro station. It was greeted with a thorough lack of enthusiasm by Montreal's transport authority (STM), which claimed the map might "create panic among the city's public transport users," before deciding to head off the whole situation using good, old-fashioned, pre-murder-simulator copyright. Diego Liatis, the creator of the map, was threatened with a $50,000 fine by STM, which has done little to deter his efforts.

Ars Technica has a followup story, detailing Liatis' refusal to back down.

Diego Liatis, a Montreal gamer and entrepreneur, told Ars that he still plans on releasing a Counter-Strike: Global Offensive map of Berri-UQAM, the city’s most well-known metro station. He's moving forward—the map is due sometime in March 2013—even if it means a drawn-out lawsuit brought by the local transit authority.

“If you ask me to change the name of the station—forget about it,” Diego Liatis told Ars, starting the sentence in French and switching to English for emphasis. “I understand [copyright law]. But there are limits, such as the name of the station.”

Liatis still believes he has the right to reproduce a real world location and is currently in negotiations (a polite word meaning "lawyers conversing") with the STM to determine what can be left in and what needs to be removed to satisfy the transport authority.

Liatis said he planned on meeting in person with STM representatives later this week. While he is willing to alter the STM logo and a well-known piece of art that hangs above a track, he’s not willing to compromise on the name of the station or its layout.

“Either [the STM] opposes me and we’ll meet in court,” Liatis added. “Or [the agency] will be OK with it.”

The February 11 cease-and-desist letter reminds Liatis that the STM “had warned you that it did not authorize you to use its image nor reproduction of the station in question for this project,” adding that use of its name, acronyms, graphic symbols, and seal are “prohibited by law unless permission is granted by the STM.”

Liatis may be logically "correct" but there's not much logic contained in IP laws. He may be determined to stick it to l'homme, but even members of the LAN ETS community are backing away from Liatis, most likely in hopes of a continued, lawsuit-free existence.

Simon Marin, a LAN ETS spokesperson, told Ars in an e-mail that the university, and by extension its LAN party event (LAN ETS), is "disassociating itself" from Liatis and his map. Marin did not provide any further explanation.

Despite the legal issues and disconnection from LAN ETS, Liatis plans to release the map in the near future. His pushback against government overreach and copyright-as-deterrent is admirable, but some aspects of this story are beginning to paint him as a possibly unreliable narrator.

As quoted in our original piece, and repeated in the update from Ars Technica, Liatis again states that the STM's representative had concerns about the map's usefulness to potential terrorists.

Liatis added that STM's media representative, Amélie Régis, expressed concern to him that releasing the map would allow it to be used by actual terrorists training for an actual attack. Régis also said it would be "insulting" to Montreal's Arab community.

The representative from STM, however, claims she never spoke to Liatis.

UPDATE Tuesday 5:42pm CT: Régis finally wrote back to Ars, saying that she had never spoken to Liatis, and was "really surprised to read the opposite." Ars has contacted Liatis again to clarify who exactly he spoke with at the STM.

Many governments have operated on faith-based paranoia since the 9/11 attacks, which makes it easy to believe Liatis' account of the events. Whatever concerns the STM might have had about "panics" or "terrorists," it may have kept them to itself. Nearly a week on from this interview, Ars is still waiting for Liatis to back up this claim. The STM may be using copyright to block a map it feels could potentially have this effect on would-be terrorists and/or the public, but so far, it hasn't officially stated anything to that effect.

Despite the lack of official statement, it still looks as if the STM simply wants to shut down something that represents its station but adds guns to the mix. Government entities are quick to shy away from anything controversial in the War on Terrorism age, and the STM seems to be no exception. There's a point to Liatis' efforts, but it's likely to be buried under a hefty fine and accompanying lawsuit as he shows no signs of backing down. It's a costly game of chicken and the end result may be nothing more than another footnote in case law reasserting the "right" of public entities to claim copyright protection on publicly accessible areas in order to prevent "misuse" by ordinary citizens.

Filed Under: canada, copyright, counter-strike, maps, montreal, subway, threats
Companies: stm

USTR To Canada: 'Bow Down And Accept ACTA!' Canada: 'Yes, We Shall Do Your Bidding'

from the why? dept

The story of ACTA is well-known by now. ACTA was yet another attempt by copyright and patent maximalists to spread maximalist principles further via a secretive treaty that allowed certain industries to participate in the process, but kept out any and all concerns from public interest groups, the public itself, and innovative industries that would be harmed by the laws. Thankfully, widespread protests in the EU resulted in ACTA being declared dead there, as the EU Parliament refused to agree to ACTA. And, without the EU, it's questionable if ACTA will ever be a real treaty in any way that matters. Yes, some countries have signed it, but there are still some ratification processes necessary, and without the EU on board, the whole thing seems kind of pointless. Other negotiating countries, including Switzerland, Australia and Mexico have indicated that they are not fans of ACTA either.

Many assumed, therefore, that ACTA was dead. But... not the US apparently. Nor Canada. In an announcement today, the USTR is apparently acting as if the months of ACTA protests and the death of ACTA in Europe didn't happen. Instead, it's all about pressuring countries like Canada by claiming that they need "to meet its Anti-Counterfeiting Trade Agreement obligations." Seriously, now?

Now, if I'm a Canadian politician, this is the point where I tell the USTR to go pound sand and to recognize that the world has clearly rejected the concept of ACTA, and having just gone through a long and arduous copyright reform process (also mainly because of US demands from the likes of the USTR), that the USTR should go pick on some other country to bully.

Instead, however, we get near complete capitulation. With near perfect timing, a bill has been introduced in the Canadian Parliament to bring Canadian IP law into line with ACTA. Why would they even bother?

The core elements of the bill include the increased criminalization of copyright and trademark law as well as the introduction of new powers for Canadian border guards to detain shipments and work actively with rights holders to seize and destroy goods without court oversight or involvement.

It's really amazing that they're willing to open this can of worms, given just how strongly people fought back against ACTA elsewhere. Michael Geist has a good initial analysis of the bill at the link above, and will likely follow up to call out some more specifics in the 52 pages of changes to copyright and trademark law, but just the fact that Canada is bothering to move forward on this is troubling. It shows a Canadian government who doesn't seem to care about what the public wants, but rather feels the need to kowtow to US entertainment and pharmaceutical lobbying interests.

The first is that this bill provides a clear signal that Canada will move forward with ACTA notwithstanding some doubts over whether there is even sufficient global support to allow it to take effect (six ratifications are needed). ACTA is toxic in Europe, where officials now go out of their way to assure the public that ACTA is dead and that any new agreements will not involve efforts to revive it. ACTA has also faced serious opposition in other negotiating countries, including Switzerland (which has not signed it), Australia (where a Parliamentary Committee recommended against ratification), and Mexico (where the Senate rejected it in 2010). ACTA was promoted as a "gold standard" agreement on counterfeiting, yet the failure to garner support from many participants has left an agreement that is often cited as an example of how not to engage in international negotiations.  Given the global opposition, Canadian support for ACTA is disappointing.

For many years, Canada has strongly resisted US-style copyright laws, despite tremendous pressure to do so. Watching them cave on ACTA is certainly a disappointment. Meanwhile, watching the USTR pretending as if ACTA went forward as planned is simply par for the course, and a reminder of just how completely detached from reality that organization remains. Elsewhere in the USTR's agenda release today, it mentions working with Japan to bring ACTA into force, which is somewhat laughable, considering how many countries have been rejecting it.

Filed Under: acta, canada, copyright, us, ustr

Company Tries To Delete Recording Of Exec Cursing Analyst During Conference Call Via Copyright Claim

from the copyright-is-not-your-personal-time-machine dept

Oh, look. It's our good friend "copyright" being used to perform a some light censorship. Certain entities seem to love this aspect of copyright -- the fact that it can be used to sweep something embarrassing under the rug.

The entity involved in activating copyright's wonder twin powers (form of a broom!) is Canada's Encana Corporation. And what needs to be swept away? A muttered expletive directed at an analyst who had the audacity to ask a tough question during a conference call.

Encana Corp, Canada's largest natural gas producer, apologized on Thursday because one of its executives cursed after an analyst asked about whether new Canadian investment rules would prohibit its takeover by foreign state-owned entities.

When asked the question by Canaccord Genuity analyst Phil Skolnick, interim CEO Clayton Woitas said: "The answer would be no." Then, in a whispered comment that was clearly audible on a replay of the call, someone can be heard saying, "fucking asshole."

Nice. Apparently, the swearing executive somehow forgot that being in a room full of microphones means even the under-the-breath swearing will be broadcast. Encana, of course, swiftly apologized for the low flying insult. But, instead of leaving it there (which would be perfectly acceptable -- people being fallible and all that), it has decided it needs to erase the recording from the internet, in hopes that reality will fall in line with the official transcript of the conference call.

Unfortunately for Encana, the recording has already been uploaded to Chirbit, an audio sharing site, and so far the play button has been pushed over 55,000 times. Encana is now leaning on Chirbit to take the clip down.

On Thursday, Chirbit founder Ivan Reyes said he has received a takedown request from Encana. Mr. Reyes has declined, citing fair use provisions in copyright law and a site policy directing that such requests be sent to the poster of audio.

Encana, in its request, says:

“Encana is the copyright owner of the Recording. It was expressly stated at the outset of the Conference Call that 'this conference call may not be recorded or rebroadcast without the express consent of Encana Corporation',” the letter states.

“The Recording has been posted without Encana’s consent. The unauthorized use of this Recording clearly constitutes copyright infringement. ... Encana views this matter extremely seriously and requests that you respond to the undersigned on or before the close of business on Friday, February 22, 2013, failing which, Encana will have no other recourse but to take all actions as may be available to it to protect its proprietary rights.”

Encana is trying to erase two words from the internet, something its spokesman finds reasonable and, more sadly, possible.

“I think any individual or organization that has something embarrassing broadcast over the web without proper permissions would make any attempt to have that content eventually removed as, understandably, we do not wish to have that clip living on in perpetuity on the web,” he said.

The clip was uploaded by a Globe and Mail reporter who had recorded the conference call, common practice among journalists to ensure accuracy in their reporting. Copyright over the entire call, much less those two words, is a pretty grey area. Over at the Canadian Intellectual Property Blog, Jahangir Valiani breaks down this scenario.

To be clear, assuming there is no agreement to the contrary, the only aspect of the conversation posted that Encana may be able to claim copyright over is the three words said by its employees. Copyright to the question posed by the third party would belong to that third party unless the person who posed the question assigned it in writing to Encana.

For copyright to exist in a statement, the statement being copyrighted must be an “original… work”. The test for originality in Canada requires the author to exercise skill and judgement, where the skill and judgement exercised must not be so trivial as to be characterized as purely mechanical. While the qualitative test for a statement to be a “work” is low, there is a quantitative minimum that must be met for copyright protection.

The statements made by the Encana executives in this scenario do not qualify for copyright protection as they fail to meet both the criteria for a copyrightable work. The obscenity was not an exercise of skill and judgement. It was an impulsive response to a question that the speaker found insulting. In fact, if the speaker had exercised skill and judgement, it is likely that the he wouldn't have said the obscenity at all.

Valiani says that, in this case, copyright protection for the exec's "unguarded moment" isn't impossible, it's just highly unlikely. If Encana has any recourse, it would be to pursue legal action for breach of contract, as Encana specifically prohibited third-party recording. As noted above, Chirbit is leaving the clip up, citing fair use.

This likely won't satisfy Encana, which clearly wishes the clip to be vanished into the copyright cornfield. The reality of the situation is that even if it gets the clip taken down, the recording will very definitely resurface. Encana's best move is to simply let it go. People swear and do inappropriate things at inappropriate times. Continued pursuit of the offending clip will only "Streisand" it, causing it spread across the internet like a sweary wildfire. Even if Encana is within its rights, it gains nothing by attempting to whitewash something that is already public knowledge.

Filed Under: abuse, analyst, canada, censorship, copyright, cursing
Companies: encana

IIPA Wants Canada And Spain On The 'Naughty' Special 301 List Even Though They Brought In Tough New Copyright Laws

from the base-ingratitude dept

Here on Techdirt, one of the things we look forward to each year is the comedy production known as the 301 Report, where the US makes the world line up in a row, and then names and shames all the naughty countries whose intellectual monopoly laws aren't outrageous enough. In advance of the official naughty list, there are helpful suggestions from the fans of monopoly maximalism, including the International Intellectual Property Alliance (IIPA), which has just released its 2013 demands. Mostly it's the usual suspects -- China, India, Russia etc. But there's an interesting change from the previous year's list: Canada has moved from the really naughty "Priority Watch List" to the only slightly naughty "Watch List".

As Michael Geist points out, far from being good news, that's outrageous:

Those that thought passing Bill C-11 -- the Canadian copyright reform bill that contained some of the most restrictive digital lock rules in the world -- would satisfy U.S. groups will be disappointed. The IIPA wants Canada back on the piracy watch list, one notch below the Special Watch List (where the US placed Canada last year).

Despite the praise for Bill C-11 last year, the groups are right back in criticism mode and demanding reforms. The IIPA is now unsure if the enabler provision will help stop sites that facilitate infringement (despite the fact that its members have yet to use the provision) and concerned with the prospect of new exceptions to the digital lock rules. In fact, its criticisms of the rules for Internet providers (it wants a notice-and-takedown system, tougher rules on search engines that link to infringing content, and new rules to target repeat infringers) are so strong that the organization implausibly claims possible non-compliance with the WIPO Internet treaties.

Nor is Canada the only country that might be surprised to find itself on the naughty step again. As Mike explained last year, Spain was removed from the official Special 301 list for being an obedient little vassal state and bringing in the punitive Ley Sinde, as instructed, despite huge public and business opposition. And now, guess what? The IIPA already wants Spain back on the list for not doing enough in this area (pdf):

Contrary to the expectations surrounding the implementation of ley Sinde that led to Spain's removal from the Special 301 Watch List last year, Spain saw no positive developments in 2012.

Let's hope Canada and Spain -- and everyone else -- draw the obvious conclusion from the IIPA's latest calls: that no matter what countries do, no matter what legislation they bring in, and no matter what disproportionately harsh punishments they inflict on their own people, it will never, ever be enough, and there will always be further demands, and further threats to put them back on the naughty lists. The only solution is to stand up to this blackmail once and for all, and to treat the Special 301 list with the contempt it deserves.

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

Filed Under: 301, canada, copyright, new laws, spain, special 301 report
Companies: iipa

Another Victory For The Public Speaking Up: Canada Drops Digital Spying Bill (For Now)

from the a-good-step dept

A year ago, we had a series of posts concerning attempts in Canada to pass a "lawful access" bill, which is a nice way of saying "a bill to let Canadian law enforcement spy on your digital information." Politicians who supported this, like Public Safety Minister Vic Toews, kicked things off in the most ridiculous of ways, saying that anyone who was against such a bill supported child pornographers. In response, tons of Canadians spoke up, even creating a whole meme in which they revealed random info to Toews. And, of course, when people shared some of Toews' own info, he went ballistic.

Earlier this week, it was announced that the Canadian government has agreed not to move forward with the bill, claiming that they "listened" to the concerns of the public:

We will not be proceeding with Bill C-30 and any attempts that we will continue to have to modernize the Criminal Code will not contain the measures contained in C-30, including the warrantless mandatory disclosure of basic subscriber information or the requirement for telecommunications service providers to build intercept capability within their systems. We've listened to the concerns of Canadians who have been very clear on this and responding to that.

This is, undoubtedly, another big win for consumers speaking out when their government tries to put in place something ridiculous. As always, Michael Geist has an excellent analysis of what this all means, including that we should add this to the still small, but rapidly growing list of internet advocacy success stories. But, of course, as with any of these success stories, the story is not actually over. He notes that there are still problems and challenges concerning privacy of info:

Third, even with Bill C-30 dead, there is a problem with the current system of voluntary disclosure of customer information by ISPs. The lawful access debate placed the spotlight on the fact that ISPs disclose customer information tens of thousands of times every year without court oversight. The law permits these disclosures, but there are no reporting requirements or accountability mechanisms built into the process. Those are needed and the government should move swiftly to add this to the law, either within Bill C-12 (the PIPEDA reform bill) or Bill C-55, which was introduced yesterday.

Fourth, Bill C-30 may be dead, but lawful access surely is not.  On the same day the government put the bill out its misery, it introduced Bill C-55 on warrantless wiretapping. Although the bill is ostensibly a response to last year's R v. Tse decision from the Supreme Court of Canada, much of the bill is lifted directly from Bill C-30.  Moreover, there will be other ways to revive the more troublesome Internet surveillance provisions. Christopher Parsons points to lawful intercept requirements in the forthcoming spectrum auction, while many others have discussed Bill C-12, which includes provisions that encourage personal information disclosure without court oversight.  Of course, cynics might also point to the 2007 pledge from then-Public Safety Minister Stockwell Day to not introduce mandatory disclosure of personal information without a warrant. That position was dropped soon after Peter Van Loan took over the portfolio. 

This is a key point that many people keep trying to drive home. There have been a few very important internet advocacy success stories recently, but these fights don't end when a single bill is killed. Supporters of bad policies are playing the long game -- pushing for these changes in a variety of different places in a variety of different ways over a long period of time. Killing one part is absolutely a victory, but it still requires significant and continued vigilance.

Filed Under: canada, digital spying, lawful access, surveillance

Canada Denies Patent For Drug, So US Pharma Company Demands $100 Million As Compensation For 'Expropriation'

from the money-for-nothing dept

An increasingly problematic aspect of free trade agreements (FTAs) is the inclusion of investor-state provisions that essentially allow companies -- typically huge multinationals -- to challenge the policies of signatory governments directly. The initial impulse behind these was to offer some protection against the arbitrary expropriation of foreign investments by less-than-democratic governments. But now corporations have realised that they can use the investor-state dispute mechanism to challenge all kinds of legitimate but inconvenient decisions in any signatory nation. Here's a good example of how this provision is being invoked to contest a refusal by Canadian courts to grant a patent on a drug, as explained on the Public Citizen site:

Eli Lilly and Company has initiated formal proceedings under the North American Free Trade Agreement (NAFTA) to attack Canada's standards for granting drug patents, claiming that the denial of a medicine patent is an expropriation of its property rights granted by the agreement. The investor privileges provisions included in NAFTA and other U.S. "free trade" agreements (FTAs) empower private firms to directly challenge government policies before foreign tribunals comprised of three private-sector attorneys, claiming that the policies undermine their "expected future profits." Eli Lilly's move marks the first attempt by a patent-holding pharmaceutical corporation to use U.S. "trade" agreement investor privileges as a tool to push for greater monopoly patent protections, which increase the cost of medicines for consumers and governments.

The claim that denying a patent is somehow an "expropriation" of property is pretty extraordinary. Patents are intellectual monopolies that are granted by governments; Eli Lilly does not have such a monopoly in Canada unless the government there grants it, which it does by applying its well-established laws and rules. Here's the background to the current dispute:

Eli Lilly launched its NAFTA attack after Canadian courts invalidated Eli Lilly's monopoly patent rights for an attention deficit hyperactivity disorder (ADHD) drug, having determined that the drug had failed to deliver the benefits the firm promised when obtaining the patent. However, in its formal notice of intent to take Canada to a NAFTA investor tribunal, Eli Lilly makes clear that it is not only challenging the invalidation of its particular patent, but Canada's entire legal doctrine for determining a medicine's "utility" and, thus, a patent's validity. While pushing for a patent standard that would raise medicine prices, Eli Lilly, the fifth-largest U.S. pharmaceutical corporation, is demanding $100 million from Canadian taxpayers as compensation for Canada's enforcement of its existing medicine patent standards.

Basically Eli Lilly failed to deliver its side of the bargain, since the drug doesn't work very well, so Canada refused to allow the company to retain a patent that was contingent on it being effective. What's worrying is that the drug company's present action is not just challenging that decision, but the whole approach that requires drugs to work well enough to deserve a patent -- not unreasonably.

The case will not be heard before any ordinary national or even international court, with all that this implies in terms of transparency and fairness, but by a very special kind of tribunal:

The tribunals are comprised of three private sector attorneys, unaccountable to any electorate, who rotate between serving as "judges" and bringing cases for corporations against governments. The tribunals operate behind closed doors, and there are no conflict of interest rules. The tribunalists are paid by the hour and governments are often ordered to pay for a share of tribunal costs even when cases are dismissed. There is no limit to the amount of money tribunals can order governments to pay corporations. There are very limited appeal rights.

The entire approach is clearly biased towards companies and against the national governments, so the following facts will come as no surprise:

Under U.S. FTAs and related deals, private investors have already pocketed over $3 billion in taxpayer money via investor-state cases, while more than $15 billion remains in pending claims.

However, bad as things are currently, they promise to get even worse if the TPP agreement is finalized in line with leaked versions:

Ironically, while Canada faces an investor-state challenge from Eli Lilly, the country has joined negotiations to establish the TPP, which would expand the investor-state system further. To date, Canada has paid more than $140 million to foreign investors after NAFTA investor-state attacks on energy, timber and toxics policies. Part of Eli Lilly's claim against Canada is that the invalidation of its patent constituted an expropriation of its "investment." NAFTA does not list patents in its definition of a protected "investment," although some analysts have long worried that the broad, vague NAFTA definition could be used to attack medicine patent policies. But in the TPP, the proposed Investment Chapter explicitly names "intellectual property rights" as a protected "investment."

That is, TPP aims to formalize precisely the argument that Eli Lilly is trying to make using some rather far-fetched legal logic, discussed at length in the Public Citizen post quoted above. Moreover, it seems highly likely that a similarly far-reaching investor-state section will be included in the new Transatlantic FTA (TAFTA), now being discussed more widely.

The central problem with these investor-state provisions is that they elevate companies to the level of entire countries. Secret, unaccountable and biased tribunals with unlimited powers then enable them to overturn democratic decisions and legislation passed to preserve things like public health or the environment, simply because they would reduce corporate profits. And yet few people are even aware that such investor-state provisions exist, despite their massive impact on the lives of millions. That's a hugely troubling combination for the future.

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Filed Under: canada, expropriation, investor-state provisions, nafta, patents, tafta, trade agreements, us
Companies: eli lilly

Canadian Chamber Of Commerce Wants To Legalize Spyware Rootkits To Help Stop 'Illegal' Activity

from the this-is-a-bad-idea dept

As a whole bunch of folks have been sending in, up in Canada, as part of a discussion on anti-spam laws, the Canadian Chamber of Commerce is proposing a very troubling idea: allowing rootkit spyware to be installed surreptitiously for the purpose of stopping illegal activity. As Geist notes, the last time this battle was fought, it was fresh on the heels of the Sony rootkit debacle, so there wasn't much support for these concepts. But, with a few years distance, the industry groups are trying again. Specifically they either want to remove language that prevents the surreptitious installation of spyware -- or they want specific exemptions. For example, in the case of the following, they argue spyware should be allowed:

a program that is installed by or on behalf of a person to prevent, detect, investigate, or terminate activities that the person reasonably believes (i) present a risk or threatens the security, privacy, or unauthorized or fraudulent use, of a computer system, telecommunications facility, or network, or (ii) involves the contravention of any law of Canada, of a province or municipality of Canada or of a foreign state;

Basically, as long as you claim that you're going after someone for breaking the law, surreptitious installs are allowed. Geist points out the obvious: copyright holders will salivate over this.

This provision would effectively legalize spyware in Canada on behalf of these industry groups. The potential scope of coverage is breathtaking: a software program secretly installed by an entertainment software company designed to detect or investigate alleged copyright infringement would be covered by this exception. This exception could potentially cover programs designed to block access to certain websites (preventing the contravention of a law as would have been the case with SOPA), attempts to access wireless networks without authorization, or even keylogger programs tracking unsuspecting users (detection and investigation). Ensuring compliance with the law is important, but envisioning private enforcement through spyware without the involvement of courts, lawful authorities, and due process should be a non-starter.

If this works in Canada, expect to see similar provisions start popping up elsewhere around the world in short order.

Filed Under: canada, copyright, rootkits, spyware
Companies: canadian chamber of commerce