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debrahnesbit · 4 years ago

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Failure to Balance Freedom of Expression and Protection from Online Harms: My Submission to the Government’s Consultation on Addressing Harmful Content Online

The government’s consultation on its proposed approach to address harmful content online concluded over the weekend. The consultation was one of several consults that ran during the election period and which raise questions about whether policy makers are genuinely interested in incorporating feedback from Canadians. I submitted to all the various consultations and will be posting those submissions this week.

I start with my online harms submission. The full submission, which touches on issues such as 24 hour takedowns, website blocking, proactive monitoring, and enforcement, can be found here. To learn more about the issues, catch my Law Bytes podcast episode with Cynthia Khoo or listen to a terrific discussion that I had together with Daphne Keller on the Tech Policy Press Podcast. The submission opens with eight general comments that I’ve posted below:

1. The proposed approach does not strike an appropriate balance between addressing online harms and safeguarding freedom of expression. Indeed, after a single perfunctory statement on the benefits of Online Communications Services (OCSs) which says little about the benefits of freedom of expression, the document does not include a single mention of the Charter of Rights and Freedoms or net neutrality. There is surely a need to address online harms, but doing so must be Charter compliant and consistent with Canadian values of freedom of expression. I believe the proposed approach fails to adequately account for the freedom of expression side of the ledger.

2. Rather than adopting a “made in Canada” approach consistent with Canadian values, the plan relies heavily on policy developments elsewhere. Yet the reality is that those models from countries such as France, Germany, and Australia have met with strong opposition and raised serious concerns of unintended consequences. Indeed, France’s approach has been ruled unconstitutional, Germany’s model has resulted in over-broad removal of lawful content and a lack of due process, and Australia’s framework is entirely unproven. An evidence-based approach would better account for these experiences rather than seek to mirror them.

3. The proposed approach mistakenly treats a series of harms – spreading hateful content, propaganda, violence, sexual exploitation of children, and non-consensual distribution of intimate images – as equivalent and requiring the same legislative and regulatory response. While there is a commonality between these harms as so-called “illegal speech”, there are also significant differences. For example, it makes no sense to treat online hate as the equivalent of child pornography. By prescribing the same approach for all these forms of content, the efficacy of the policy is called into question.

4. There are lingering concerns about scope-creep with this proposal. Government officials have previously referenced the need to address “harmful” or “hurtful” comments, raising the prospect of expanding the model far beyond the current five forms of illegal speech cited in the proposal. Moreover, the government has indicated that these rules apply only to OCSs, identifying Facebook, Youtube, TikTok, Instagram, and Twitter as examples. It notes that there will be an exception for private communications and telecommunications such as wireless companies, Skype and WhatsApp (along with products and services such as TripAdvisor that are not OCSs). Yet during a briefing with stakeholders, officials were asked why the law shouldn’t be extended to private communications on platforms as well, noting that these harms may occur on private messaging. Given that the government previously provided assurances of the exclusion of user generated content in Bill C-10 only to backtrack and make it subject to CRTC regulation, there is a need for renewed assurances about the scope of the rules.

5. The proposed approach envisions a massive new bureaucratic super-structure to oversee online harms and Internet based services. Due process concerns dictate that there be a suitable administrative structure to address these issues. However, some of the proposed models are ill-conceived that will not scale well nor afford the much-needed due process. For example, adjudicating over potentially tens of thousands of content cases is unworkable and would require massive resources with real questions about the appropriate oversight. Similarly, the powers associated with investigations are enormously problematic with serious implications for freedom of the press and freedom of expression.

6. The proposed approach threatens Canada’s important role as a model for the rest of the world. Some of the proposals risk being deployed by autocratic countries to suppress freedom of expression with Canada cited as an example for why such measures are reasonable. The government should be asking a simple question with respect to many of its proposals: would Canadians be comfortable with the same measures being implemented countries such as China, Saudi Arabia, or Iran. If the answer is no (as I argue it should be), the government should think twice before risking its reputation as a leader in freedom of expression.

7. The proposed approach also threatens to harm the very groups it purports to protect. Without full due process and with clear incentives to remove content, there are real fears that the rules will be used to target BIPOC communities and vulnerable groups. Those groups could be silenced by a process that is weaponized by purveyors of hate with their voices removed due to poorly conceived rules that do not feature adequate due process.

8. During the last election campaign, the government promised to move forward within 100 days of its mandate. Given that commitment – as well as the structure of the consultation that reads more like a legislative outline rather than a genuine attempt to solicit feedback – there are considerable doubts about this consultative process. Consultations should not be a box-ticking exercise in which the actual responses are not fully factored into policy decisions. The challenge of reading, processing, analyzing and ultimately incorporating consultation responses within a three month period appears entirely unrealistic. The government should provide assurances that there will be no legislation without taking the consultation responses fully into account.

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debrahnesbit · 4 years ago

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The Law Bytes Podcast, Episode 102: Colleen Flood on the Legal, Ethical and Policy Implications of Vaccine Passports

Vaccine passports or certificates launched in Ontario last week, a development welcomed by some and strongly opposed by others. The launch raises a myriad of legal, ethical, privacy, and policy issues as jurisdictions around the world grapple with the continued global pandemic and the unusual requirements of demonstrating vaccination in order to enter some public or private spaces.

Professor Colleen Flood, a colleague at the University of Ottawa, has been writing and thinking about these issues for many months. Later today, she will be part of a panel discussion that explores the policy challenges hosted by the University of Ottawa Centre for Health Law, Policy and Ethics, and the Centre for Law, Technology and Society. She joins the Law Bytes podcast with an advance preview as we discuss the legal balancing act, models from around the world, and the concerns that governments should be thinking about in this next stage of dealing with COVID-19.

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

Show Notes: Vaccine Passports/Certificates: Law, Ethics & Policy Wilson & Flood, Implementing Digital Passports for SARS-CoV-2 Immunization in Canada Flood, Krishnamurthy, Wilson, Please Show Your Vaccination Certificate

Credits:

CityNews, Day One of Ontario’s Vaccine Passport

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debrahnesbit · 4 years ago

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The Law Bytes Podcast, Episode 101: OpenMedia’s Laura Tribe on Digital Policy and the 2021 Canadian Election

It is election day in Canada following a late summer campaign in which the focus was largely anything but digital issues: COVID, climate change, Afghanistan, and affordability all dominated the daily talking points. The digital policy issues that grabbed attention throughout the spring – Bill C-10, online harms, wireless pricing – were largely absent from the discussion and in some cases even from party platforms. Laura Tribe, the executive director of OpenMedia, joins the Law Bytes podcast to discuss digital policies and the 2021 election campaign. Our conversation walks through a wide range of issues, including the surprising omission of wireless pricing from the Liberal platform, the future of Bill C-10, and the failure of privacy reform to garner much political traction.

Credits:

Global News, Canada Election: How are the Parties Planning to Tackle Cellphone Affordability

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debrahnesbit · 4 years ago

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The Law Bytes Podcast, Episode 100: David Vaver With a Masterclass on Copyright and User Rights

The role of the public and the public interest has factored prominently into many of the Law Bytes podcast conversations. For the 100th episode, Osgoode Hall Law School Professor David Vaver, widely viewed as Canada’s leading IP expert, joins the podcast. The recipient of the Order of Canada, Professor Vaver provided the scholarly grounding for the emergence of user rights in copyright in Canada and around the world. In this episode, he gives a masterclass on the history of copyright, the emergence of user rights, Supreme Court copyright jurisprudence, and potential future copyright reforms.

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debrahnesbit · 4 years ago

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The Liberal Election Platform: Government Picks Internet Regulation Over Internet Affordability

The Liberal party released its election platform yesterday and perhaps everything you need to know can be gleaned from the fact that Canadian Heritage Minister Steven Guilbeault posted multiple tweets about plans for new cultural spending initiatives and Internet regulations in French without a single English language tweet. This is surely not a coincidence since the government’s digital policies have long been designed to curry favour in Quebec, even at risk of angering voters in the rest of Canada. Based on decision to forge ahead with Internet regulations with enormous implications for freedom of expression, alienating voters in the rest of Canada that have raised concerns with policies such as Bill C-10 is not a worry for the Liberal government.

Neither, it would seem, is the affordability of Internet and wireless services, which do not receive a single mention or direct policy measure. In doing so, the party has seemingly abandoned wireless competitiveness as an issue and unequivocally sided with the big telecom companies despite presiding over some of the world’s most expensive wireless services. The party platform is titled “Forward for Everyone” but not everyone moves forward in quite the same way with big telecom companies moving further ahead than Canadian consumers.

Moving ahead is also the theme of Internet regulation. The Conservative platform addresses similar terrain, though it repeatedly emphasizes the need to safeguard freedom of expression. There is a freedom of expression reference in the Liberal platform, but the actual policies tell a different story. The Liberals commit to reintroducing Bill C-10 and Bill C-36 as well as introducing online harms legislation and mandated payments for linking to news articles. The platform also promises to re-introduce Bill C-11, the privacy reform bill that went nowhere after being tabled last November.

The positions are not a surprise, but the do raise several issues. First, the public concerns associated with Bill C-10 simply don’t seem to matter. The government has had multiple opportunities to address the legitimate concerns associated with the bill, but instead plans to double down, promising re-introduction within 100 days. Second, the government’s myriad of policy consultations on issues such as online harms and news payments – which are incredibly inappropriate during an election period – are just theatre given that the Liberals already know what they plan to do and have identified the policies in their platform. If the issues have already been decided, what is the point of a public consultation? For a government once elected on greater consultation, running what amount to fake consultations is shameful. Third, there is a clear hierarchy among policy issues, with Internet regulation at the top and privacy at the bottom. It is difficult to understand why the Liberals are so disinterested in privacy for which there is broad-based support, but the signals are clear: online harms and Bill C-10 within 100 days, privacy sometime later.

Copyright also pops up several times in the platform. There are two specific commitments: a new re-sale right for artists and a right of repair for consumers. The right of repair reform is long overdue and welcome. There are additional references to copyright protection, but without specifics. Those following the issue know that there have been multiple copyright consultations with the prospect of copyright term extension, website blocking, and an exception for text and data mining in support of artificial intelligence all on the agenda.

The biggest surprise of the platform must surely be the decision to avoid the wireless and Internet cost and competition issue altogether. There are references to rural broadband and spectrum use, but communications costs and the state of Canadian wireless has been a major consumer issue for years. In 2019, it emerged as an election issue with all parties making commitments to address the issue. To simply abandon wireless affordability is remarkable, sending an unmistakable signal that the Liberals have sided with the Big 3 telecom providers over the interests of Canadian consumers and the introduction of greater competition.

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debrahnesbit · 4 years ago

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The Law Bytes Podcast, Episode 99: “They Just Seemed Not to Listen to Any of Us” – Cynthia Khoo on the Canadian Government’s Online Harms Consultation

Late last month – just weeks prior the national election call – Canadian Heritage Minister Steven Guilbeault released plans for online harms legislation with a process that was billed as a consultation, but that is probably better characterized as an advisory notice, since there are few questions, options or apparent interest in hearing what Canadians think of the plans. Those plans include the creation of a bureaucratic super-structure that featuring a new Digital Safety Commission, a digital tribunal to rule on content removal, and a social media regulation advisory board. In terms of illegal content, the proposed legislation envisions a myriad of takedown requirements, content filtering, complaints mechanisms, and even website blocking.

Cynthia Khoo is an Associate at the Center on Privacy & Technology at Georgetown Law in Washington. She is also the author of a ground-breaking Canadian study for LEAF, the Women’s Legal Education and Action Fund, on holding digital platforms accountable for technology technology-facilitated gender-based violence. She joins the Law Bytes podcast in a personal capacity to discuss the government’s consultation and her recent report.

Show Notes: Canadian Heritage, Technical Paper on Online Harms

Credits: Canada 2020, Democracy in the Digital Age: Addressing Online Harms

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debrahnesbit · 4 years ago

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The Conservative Election Platform: Freedom of Expression Commitment Tainted By Support for Payments for Links, Restrictions on Fair Dealing

The Conservative Party released its election platform yesterday, providing a lengthy document that covers a myriad of policy issues. From a digital policy perspective, there are positions sprinkled throughout the document, covering everything from a new innovation policy (an issue that the Liberals de-emphasized over the past two years and the Conservatives are right to target) to labour rights for gig workers.

On many issues, the reality is the policy platform isn’t all that different from the Liberal government’s approach. Both parties promise to enact digital taxes, address high wireless and Internet costs (the Conservatives pin their hopes on foreign investment, which is unlikely to move the needle), enact platform liability (the Conservatives reference a stronger legal duty to remove illegal content), improve privacy protection (the Conservatives promise tougher rules that the failed Bill C-11), and payment from Internet companies to pay media companies. There is the usual Conservative questions for the CBC and a plan to end media support through the labour tax credit and local journalism initiatives that some will jump on, but the digital policy similarities outweigh the differences. Indeed, if the Liberals had hoped to criticize the Conservatives for being weak on tech companies (as Canadian Heritage Minister Steven Guilbeault frequently claimed), the platform offers few targets.

Where the Conservatives differ is on the issue of freedom of expression. While the Liberals have claimed to be supportive of freedom of expression, their Bill C-10 involved regulating user generated content and the recent online harms consultation has sparked criticism from around the world with its vision of a bureaucratic super-structure to rule on content. The Conservative platform regularly invokes freedom of expression as a central consideration in the policy development process. For example, its online harms package focuses primarily on enforcing existing criminal laws on illegal speech, noting:

What we do not support are restrictions on legitimate freedom of speech. Free speech, freedom of expression, and a free press are fundamental tenets of Canadian law and Canadian democracy. We will oppose government censorship of material that is not criminal in nature merely because some may find it to be offensive. Consequently, we have opposed Justin Trudeau’s attempt to create a national speech regulator for social media. Unlike the Liberals, we will not use the power of government to censor those we disagree with.

Similarly, its Bill C-10 alternative states that the party will “exempt the content Canadians upload onto social media sites like Facebook, YouTube and Tik Tok from regulation in order to protect free speech.”

These are welcome positions that the Liberals would do well to emulate. Moreover, the Bill C-10 alternative provides a solid approach that strikes a middle ground in a way Guilbeault rejected. It plans to regulate large streaming services with requirements to reinvest a portion of their Canadian revenues in Canadian programming, some of which must be French language programming. Failure to meet the requisite spending requirement would trigger an obligation to contribute the difference to the Canadian Media Fund. User generated content and social media sites would be exempt. The proposal meets the demands of contributing to Canadian production, but encourages investment, rather than simply providing a handout. Further, by limiting the obligations to large streaming services, it avoids the over-broad, regulate everything model of Bill C-10.

While the Conservative alternative to Bill C-10 represents the best of the digital policies in the platform, the media support plans and promise to reform copyright represents the worst. The media support from Internet platforms is largely indistinguishable from the recent Guilbeault consultation, promising a digital media royalty framework that require payments from Google and Facebook based on an arbitration model and a new copyright right for sharing news clips on social media. Yes, the Conservatives are proposing payments for links – frequently termed a link tax – for social media through copyright reform.

If that were not bad enough, the platform also promises to rollback fair dealing, citing support from a 2019 Heritage committee report. That report was discredited with poor process, limited participation, an imbalance of witnesses, and a deliberate decision to ignore evidence. The Industry committee study, which was the authoritative study on copyright reform, included active Conservative party participation and did not recommend new limitations on fair dealing. Neither, for that matter, does the Supreme Court of Canada, which just issued a key decision again affirming user rights. The court recognizes what the Conservatives seemingly don’t, namely that fair dealing is an essential safeguard for freedom of expression.

Given the rest of the platform, the Conservatives could have recommended pro-innovative copyright reforms such as the right to repair to support the agriculture sector, an exception for AI, limitations on digital lock rules, and the repeal of crown copyright. Instead, they bizarrely supports link taxes and restrictive fair dealing, both of which would have a negative impact on the very freedom of expression the platform otherwise supports.

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debrahnesbit · 4 years ago

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The Law Bytes Podcast, Episode 98: Kim Nayyer on the Supreme Court of Canada’s Landmark Access Copyright v. York University Copyright Ruling

The Supreme Court of Canada recently brought a lengthy legal battle between Access Copyright and York University to an end, issuing a unanimous verdict written by retiring Justice Rosalie Abella that resoundingly rejected the copyright collective’s claims that its tariff is mandatory, finding that it had no standing to file a lawsuit for copyright infringement on behalf of its members, and concluding that a lower court fair dealing analysis that favoured Access Copyright was tainted. The decision removes any doubt that the Supreme Court remains strongly supportive of user’s rights and vindicates years of educational policy in shifting away from Access Copyright toward alternative means of ensuring compliance with copyright law.

Kim Nayyer is the Edward Cornell Law Librarian, Associate Dean for Library Services, and Professor of the Practice at Cornell Law School. She appeared before the Supreme Court in this case, representing the Canadian Association of Law Libraries as an intervener. She joins the Law Bytes podcast to talk about the case and its implications for the future of copyright, education, and collective rights management.

Show Notes:

Access Copyright v. York University

Credits:

Supreme Court hearing, Access Copyright v. York University

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debrahnesbit · 4 years ago

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The Law Bytes Podcast, Episode 97: John Lawford on Why the CRTC Should Take Action on Inadequate Low-Cost Wireless Plans

The CRTC’s wireless decision earlier this year dubbed the “MVN-no” decision given its very limited opening to mobile virtual network operators in Canada sparked widespread frustration with the Commission. That decision included one less discussed element, however, namely the expectation that the major wireless carriers would introduce low-cost plans to ensure connectivity for low-income Canadians. Those plans were recently introduced, but John Lawford, the Executive Director and General Counsel of PIAC, the Public Interest Advocacy Centre, wasn’t impressed. He wrote to the CRTC asking the Commission to take action over plans that aren’t even offered under the main carrier brands. He joins the Law Bytes podcast to talk about that issue, the ongoing concerns with the wireless affordability in Canada, and the deepening frustration with the CRTC.

Show Notes:

PIAC Letter to the CRTC Re: Low Cost Wireless Plans

Credits:

CBC News, CRTC Examines Wireless Costs, Options

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debrahnesbit · 4 years ago

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Same Old Spin: Why Access Copyright Needs a Reality Check on Canadian Copyright

Last week’s Supreme Court of Canada copyright decision in Access Copyright v. York University has unsurprisingly been applauded by the education community, which having faced years of litigation launched by the copyright collective, now finds its position vindicated. With the court resoundingly rejecting Access Copyright’s claims that its tariff is mandatory, finding that it had no standing to file a lawsuit for copyright infringement on behalf of its members, and concluding that a lower court fair dealing analysis that favoured the copyright collective was tainted with “a fairness assessment that was over before it began”, there is little doubt about which party prevailed. Yet Access Copyright has returned to its longstanding playbook of downplaying Supreme Court decisions and misleading its own members in the process.

For example, the 2004 CCH decision is now widely regarded as Canada’s most consequential copyright decision, affirming the role of user’s rights and the need for balance in copyright. The unanimous decision strongly rejected the arguments of legal publishers in a case that included interventions from Access Copyright. But despite the obvious implications – at the time I noted its impact on every aspect of copyright – Access Copyright’s press release offered spin completely at odds with the ruling as then Executive Director Fred Wardle was quoted as saying:

“The Supreme Court sent a strong message that people do not have a free rein to copy whatever they please. The ruling was clear that there is a difference between fair dealing and copying for other purposes and we will continue to ensure that rightsholders are compensated when their works are used for the latter.”

Roanie Levy, then Access Copyright’s Director of Legal Services added:

“This ruling does not change the fact that most copying of copyright protected works does not fall under fair dealing. The Supreme Court stated definitively that copyright does exist in original works, and that is why organizations must sign an Access Copyright licence or risk breaking the law.”

This spin may have been designed to assuage the concerns of members who had invested in the litigation, but it did little to level with them on the true implications of the decision.

The same was true after the Access Copyright v. Alberta Supreme Court of Canada decision in 2012. That decision was also a clear loss for the copyright collective, as the court re-affirmed user’s rights and rejected many of Access Copyright’s longstanding legal positions on teacher and student copying. Yet Access Copyright again sought to downplay the ruling, with a release stating that the decision “will have a limited impact on the importance of the Access Copyright licence to the education community” and then Executive Director Maureen Cavan adding:

“The fact is the Supreme Court was only looking at about seven percent of the copying done in schools. The decision absolutely does not mean a free-for-all on copyright-protected materials used in the classroom. On the contrary, it leaves copyright licensing in the education sector alive and well.”

Once again, Access Copyright was misleading its own members with a press release that did little to speak to the reality of Canadian copyright law.

That continues with the response to last week’s Supreme Court of Canada decision. The Access Copyright press release spins the decision as the “Supreme Court refuses to legitimize uncompensated copying by the education sector”, with comments that focus on the decision to not endorse the York fair dealing guidelines. Meanwhile, the Writers Union of Canada claims the decision “hinged on a technicality in the wording of Copyright Board tariffs.”

Yet a fair reading of the decision and watching the oral argument makes it clear that the court did not view the issue mandatory tariffs as a technicality. Indeed, during oral arguments, the justices repeatedly asked Access Copyright counsel to explain how a tariff could be mandatory when users have multiple options in how they can clear rights to works. Access Copyright acknowledged that users are not required to have its licence to remain onside with the law, a position it is loath to admit to politicians or its own members. Further, the unanimous Supreme Court left no doubt that the issue is not a technical one, but rather one involving basic fairness:

The legal consequence of Access Copyright’s mandatory tariff theory would be that a user would be liable to pay royalties in full as soon as it became responsible for any infringing use of a work within a collective society’s repertoire. Under the final 2011-2014 Access Copyright tariff for post-secondary educational institutions, for example, York would be liable to pay $24.80 for each of its 45,000 full time equivalent students, totalling over one million dollars per year, as soon as it made a single infringing use within Access Copyright’s repertoire. For a university that attempts to clear its copyright obligations using alternative licences and fair dealing, a single infringing use — one that was not authorized by fair dealing or independently licensed — could thereby become a tripwire making the university liable to pay the full royalties in a tariff. This “Sword of Damocles”, as the intervener the Canadian Association of Research Libraries aptly put it, renders a university’s freedom to clear its copyright obligations without involving Access Copyright completely illusory.

In fact, if there is a technicality in the decision, it comes from the court not ruling on York’s fair dealing guidelines. The court emphasizes the value of guidelines (“There is no doubt, as York argued, that guidelines are important to an educational institution’s ability to actualize fair dealing for its students”) and the errors in the lower court’s fair dealing analysis (“this should not be construed as endorsing the reasoning of the Federal Court and Federal Court of Appeal on the fair dealing issue. There are some significant jurisprudential problems with those aspects of their judgments that warrant comment.”). Had the court not faced the “technicality” of no live dispute, it is practically screaming that it would have rejected the fair dealing analysis and would have been inclined to support the development of fair dealing guidelines. While Access Copyright and the Writers Union have emphasized the lower court finding on fair dealing, we now know that finding was based on legal errors.

Access Copyright and its allies owe it to their members to provide them with a reality check but instead they simultaneously downplay the decision and immediately lobby for legislative reform. Here’s the reality: the Supreme Court says in this case that “increasing public access to and dissemination of artistic and intellectual works, which enrich society and often provide users with the tools and inspiration to generate works of their own, is a primary goal of copyright”, the copyright review already rejected reforms, and the world is moving on with more licensing choices and greater flexibility. This leaves Access Copyright increasingly irrelevant without an effort to compete in the marketplace alongside a failed litigation and lobbying strategy. Rather than going back to the same playbook yet again, it should consider that its legal theories have been rejected by the Supreme Court in multiple cases and a new approach based on legal realities is long overdue.

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debrahnesbit · 4 years ago

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Copyright Vindication: Supreme Court Confirms Access Copyright Tariff Not Mandatory, Lower Court Fair Dealing Analysis Was “Tainted”

The Supreme Court of Canada brought a lengthy legal battle between Access Copyright and York University to an end last week, issuing a unanimous verdict written by retiring Justice Rosalie Abella that resoundingly rejected the copyright collective’s claims that its tariff is mandatory, finding that it had no standing to file a lawsuit for copyright infringement on behalf of its members, and concluding that a lower court fair dealing analysis that favoured Access Copyright was tainted with “a fairness assessment that was over before it began.” The decision removes any doubt that the Supreme Court remains strongly supportive of user’s rights in copyright and vindicates years of educational policy in shifting away from Access Copyright toward alternative means of ensuring compliance with copyright law.

Access Copyright launched the lawsuit against York over copying it said took place from 2011 to 2013, seeking to enforce a Copyright Board approved tariff. York argued that it was not bound by the tariff because it had not agreed to its terms and counter-claimed that any copying at issue was in any event covered by fair dealing. The federal court issued its ruling in July 2017, giving Access Copyright a resounding victory. At the time, I argued there were strong grounds for appeal given that the decision largely ignored Supreme Court fair dealing jurisprudence.

The Federal Court of Appeal followed with its decision in 2019, dealing Access Copyright a huge blow by ruling that its tariff was not mandatory, though maintaining the fair dealing finding from the lower court. Last week, the Supreme Court got the last word, upholding the mandatory tariff ruling and casting significant doubt on the fair dealing findings. The decision leaves York – and by extension the Canadian education community and those favouring balanced copyright – as the ultimate winners.

On the mandatory tariff issue, the Supreme Court follows the Federal Court of Appeal approach by again canvassing the legislative history, much of it persuasively discussed by Professor Ariel Katz (including on this Law Bytes podcast episode). Citing Katz, the court notes “if a collective society does not have a large enough repertoire or other sources emerge to provide better value, users may find that the collective is not ‘the most cost-effective way to obtain licences’, and might prefer to ‘negotiate with the right-holders directly, or through other intermediaries’.” This is precisely what many in the education community have long argued, namely that site licensing, open access, and a myriad of alternatives provide better value than the Access Copyright licence. The issue is not whether educational institutions must clear rights, which they obviously do. The real question is whether Access Copyright is the only way to do so, which even Access Copyright’s counsel acknowledged it is not.

As for Access Copyright’s longstanding claim of a mandatory tariff, the Court eviscerates the argument, warning that it would turn tariffs into an anti-competitive tool:

Access Copyright’s interpretation of s. 68.2(1) is not only unsupported by the purpose of the Board’s price-setting role, it is, respectfully, also in direct conflict with that purpose. Instead of operating as a part of a scheme designed to control collective societies’ potentially unfair market power, Access Copyright’s interpretation would turn tariffs into a plainly anti‑competitive tool, boosting collective societies’ power to the detriment of users. The legal consequence of Access Copyright’s mandatory tariff theory would be that a user would be liable to pay royalties in full as soon as it became responsible for any infringing use of a work within a collective society’s repertoire. Under the final 2011-2014 Access Copyright tariff for post-secondary educational institutions, for example, York would be liable to pay $24.80 for each of its 45,000 full time equivalent students, totalling over one million dollars per year, as soon as it made a single infringing use within Access Copyright’s repertoire. For a university that attempts to clear its copyright obligations using alternative licences and fair dealing, a single infringing use — one that was not authorized by fair dealing or independently licensed — could thereby become a tripwire making the university liable to pay the full royalties in a tariff. This “Sword of Damocles”, as the intervener the Canadian Association of Research Libraries aptly put it, renders a university’s freedom to clear its copyright obligations without involving Access Copyright completely illusory.

In fact, the court argues that the real concern for Access Copyright is that it is unable to even bring infringement claims on behalf its members:

The source of Access Copyright’s grievance, it seems to me, stems not so much from the voluntary nature of an approved tariff, but from the fact that Access Copyright cannot initiate infringement actions on behalf of its members. To the extent that this is a problem, it has nothing to do with s. 68.2(1) and is largely outside the scope of this appeal. But it is important to recall that Access Copyright chooses to operate on the terms of a non-exclusive licence that does not give it the right to sue for infringement in respect of the rights it administers. Nothing compels Access Copyright and its members to operate this way.

Since Access Copyright did not have the ability to bring the lawsuit against York University on behalf of its members, the court ruled that there was no live dispute and it therefore could not issue a declaration on the validity of the York fair dealing guidelines. However, it noted that it was not endorsing the fair dealing analysis from the lower courts. In fact, the unanimous court made it clear it disagreed with the analysis, stating “there are some significant jurisprudential problems with those aspects of their judgments that warrant comment.” I pointed to these problems on my initial post on the federal court decision back in 2017.

For example, the federal court’s fair dealing analysis did not effectively consider the perspective of the student, which the Supreme Court says “tainted” its analysis:

The main problem with their analysis was that they approached the fairness analysis exclusively from the institutional perspective. This error tainted their analysis of several fairness factors. By anchoring the analysis in the institutional nature of the copying and York’s purported commercial purpose, the nature of fair dealing as a user’s right was overlooked and the fairness assessment was over before it began.

After re-affirming the importance of the copyright balance and fair dealing, the court notes:

In other words, contrary to the Federal Court of Appeal’s view, in the educational context it is not only the institutional perspective that matters. When teaching staff at a university make copies for their students’ education, they are not “hid[ing] behind the shield of the user’s allowable purpose in order to engage in a separate purpose that tends to make the dealing unfair”. It was therefore an error for the Court of Appeal, in addressing the purpose of the dealing, to hold that it is only the “institution’s perspective that matters” and that York’s financial purpose was a “clear indication of unfairness” (paras. 238 and 241). Funds “saved” by proper exercise of the fair dealing right go to the University’s core objective of education, not to some ulterior commercial purpose (see Lisa Macklem and Samuel Trosow, “Fair Dealing, Online Teaching and Technological Neutrality: Lessons From the COVID-19 Crisis” (2020), 32 I.P.J. 215, at p. 238). The purpose of copying conducted by university teachers for student use is for the student’s education. But in every case, all relevant facts must be taken into account in order to determine the fairness of the dealing.

This was not the only error in the lower court fair dealing analysis. The analysis on aggregate copying was one of the most obvious errors in that decision and the Supreme Court hones in on the issue:

the trial judge’s criticism of York’s Guidelines on the basis that different portions of a single work could be distributed to different students, such that an author’s entire work could end up being distributed in the aggregate, is also contradicted by SOCAN, which held that “[s]ince fair dealing is a ‘user’s’ right, the ‘amount of the dealing’ factor should be assessed based on the individual use, not the amount of the dealing in the aggregate”. And while it is true that “aggregate dissemination” is “considered under the ‘character of the dealing’ factor” (SOCAN, at para. 42; see also CCH, at para. 55; Alberta (Education), at para. 29), as this Court cautioned in SOCAN, “large-scale organized dealings” are not “inherently unfair” (para. 43). In SOCAN, where copies could easily be distributed across the internet in large numbers, this Court warned that focussing on the “aggregate” amount of dealing could “lead to disproportionate findings of unfairness when compared with non-digital works” (para. 43). By extension, the character of the dealing factor must be carefully applied in the university context, where dealings conducted by larger universities on behalf of their students could lead to findings of unfairness when compared to smaller universities. This would be discordant with the nature of fair dealing as a user’s right.

Where does the decision leave Access Copyright?

Despite an attempt to spin the ruling as a refusal “too legitimize uncompensated copying by the education sector”, the reality is that the Supreme Court has handed the collective yet another devastating copyright defeat. In the aftermath of the CCH and Alberta cases in 2004 and 2012, the York case completes the trilogy that effectively undermine virtually all of Access Copyright’s legal arguments. In 2004, the court emphasized users’ rights and balanced copyright. In 2012, it ended Access Copyright’s arguments that sought to distinguish between teacher and student copying. And now in the York case, the court has affirmed that Access Copyright does not have standing to sue on behalf its members for copyright infringement, its tariff is not mandatory, and the fair dealing analysis that it has pointed to for the past four years was tainted and contained obvious errors.

The importance of a unanimous decision cannot be overstated. The CCH case was similarly unanimous, but none of the judges from that case are still on the court. In fact, only three justices from the 2012 Access Copyright v. Alberta decision were involved in this decision (Justices Abella, Moldaver, and Karakatsanis). In other words, despite significant changes in the membership of the court, the principles of balanced copyright, user’s rights, and a commitment to fair dealing has remain unchanged. Those hoping that a change in judges might lead to a change in approach will be left sorely disappointed.

Further, this may sound self-serving, but this decision – and the court’s ongoing support for user’s rights – owes much to the exceptional work of the Canadian IP academy. The tariff issue is grounded in the path-breaking work of Ariel Katz and an earlier case involving Katz, David Lametti, and Howard Knopf; Jeremy de Beer and CIPPIC both argued as interveners in the case; and the court cited Katz, Carys Craig, Myra Tawfik, Elizabeth Judge, Daniel Gervais, Sam Trosow, Lisa Macklem, and myself on fair dealing. This represents the very best of academia, combining stellar research with real-world impact.

While the focus will rightly center on yet another Access Copyright defeat at the Supreme Court, it is worth noting what the collective told the justices during oral argument. Under repeated questions from several judges, Access Copyright counsel Sheila Block acknowledged that the Access Copyright licence was just one way for educational institutions to ensure they were compliant with their copyright obligations, since alternative licences were a perfectly acceptable manner of clearing rights without Access Copyright. This is important because educational institutions are spending millions of dollars every year on those alternative licences.

Access Copyright has spent much of the past decade arguing that the 2012 reforms undermined educational copying, but the reality is that those reforms had little to do with the flawed fair dealing analysis from the federal court and nothing to do with the status of their tariff. The collective will undoubtedly accelerate its lobbying campaign for copyright reforms designed severely limit fair dealing for education, but after two decades of litigation that has consistently affirmed the education community’s analysis of the law, perhaps it is time for Access Copyright to compete within the system, not waste millions of creator dollars on lobbying and failed litigation.

The post Copyright Vindication: Supreme Court Confirms Access Copyright Tariff Not Mandatory, Lower Court Fair Dealing Analysis Was “Tainted” appeared first on Michael Geist.

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debrahnesbit · 4 years ago

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Picking Up Where Bill C-10 Left Off: The Canadian Government’s Non-Consultation on Online Harms Legislation

The Canadian government released its plans yesterday for online harms legislation with a process billed as a consultation, but which is better characterized as an advisory notice, since there are few questions, options or apparent interest in hearing what Canadians think of the plans. Instead, the plans led by Canadian Heritage Minister Steven Guilbeault pick up where Bill C-10 left off, treating freedom of expression as a danger to be constrained through regulations and the creation of a bureaucratic super-structure that includes a new Digital Safety Commission, digital tribunal to rule on content removal, and social media regulation advisory board. When combined with plans for a new data commissioner, privacy tribunal, and the expanded CRTC under Bill C-10, the sheer amount of new Internet governance is dizzying.

While there is clearly a need to address online harms and to ensure that Internet companies are transparent in their policies, consistent in applying those policies, and compliant with their legal obligations, this proposed legislation goes far beyond those principles. The government has indicated that these rules apply only to Internet services (dubbed Online Communications Services or OCSs), citing Facebook, Youtube, TikTok, Instagram, and Twitter as examples. It notes that there will be an exception for private communications and telecommunications such as wireless companies, Skype and WhatsApp (along with products and services such as TripAdvisor that are not OCSs). Yet during a briefing with stakeholders, officials were asked why the law shouldn’t be extended to private communications on platforms as well, noting that these harms may occur on private messaging. Given that the government previously provided assurances of the exclusion of user generated content in Bill C-10 only to backtrack and make it subject to CRTC regulation, the risk that it could once again remove safeguards for basic speech is very real.

The perspective on OCSs is clear from the very outset. After a single perfunctory statement on the benefits of OCSs which says little about the benefits of freedom of expression – the document does not include a single mention of the Charter of Rights and Freedoms or net neutrality – the government proceeds to outline a series of harms, including spreading hateful content, propaganda, violence, sexual exploitation of children, and non-consensual distribution of intimate images. The proposed legislation would seek to address these forms of harmful content through a myriad of takedown requirements, content filtering, complaints mechanisms, and even website blocking.

How does the government intend to address these harms?

The general obligations would include requiring OCSs to implement measures to identify harmful content and to respond to any content flagged by any user within 24 hours. The OCSs would be required to either identify the content as harmful and remove it or respond by concluding that it is not harmful. The OCSs can seek assistance from the new Digital Safety Commissioner on content moderation issues. The proposed legislation would then incorporate a wide range of reporting requirements, some of which would be subject to confidentiality restrictions, so the companies would be precluded from notifying affected individuals.

The government envisions pro-active monitoring and reporting requirements that could have significant implications. For example, it calls for pro-active content monitoring of the five harms, granting the Digital Safety Commissioner the power to assess whether the AI tools used are sufficient. Moreover, the OCSs would face mandatory reporting requirements of users to law enforcement, leading to the prospect of an AI identifying what it thinks is content caught by the law and generating a report to the RCMP. This represents a huge increase in private enforcement and the possibility of Canadians garnering police records over posts that a machine thought was captured by the law.

In order to enforce these rules, the public could file complaints with the Digital Safety Commissioner. The new commissioner would be empowered to hold hearings on any issue, including non-compliance or anything that the Commissioner believes is in the public interest. The Digital Safety Commissioner would have broad powers to order the OCSs “to do any act or thing, or refrain from doing anything necessary to ensure compliance with any obligations imposed on the OCSP by or under the Act within the time specified in the order.” Moreover, there would also be able to conduct inspections of companies at any time:

“The Act should provide that the Digital Safety Commissioner may conduct inspections of OCSPs at any time, on either a routine or ad hoc basis, further to complaints, evidence of non-compliance, or at the Digital Safety Commissioner’s own discretion, for the OCSP’s compliance with the Act, regulations, decisions and orders related to a regulated OCS.”

In fact, the inspection power extends to anyone, not just OCSs, if there are reasonable grounds that there may be information related to software, algorithms, or anything else relevant to an investigation.

The proposed legislation includes administrative and monetary penalties for non-compliance, including failure to block or remove content. These penalties can run as high as three percent of global revenue or $10 million. If there is a failure to abide by a compliance agreement, the AMPs can run to $25 million or five percent of global revenues. The AMPs would be referred to the new privacy tribunal for review. Given that liability for non-compliance could run into the millions, companies will err on the side of taking down content even it there are doubts that it qualifies as harmful.

If the OCS still doesn’t comply with the order to remove certain content, the proposed legislation introduces the possibility of website blocking with orders that all Canadian ISPs block access to the online communications service. The implications of these provisions are enormous, raising the likelihood of creating a country-wide blocking infrastructure within all ISPs with the costs passed on to consumers in the form of higher Internet and wireless bills. Moreover, the proposal is the answer to those who may argue that Canada does not have the power to compel this level of content blocking on foreign services as the government says it will simply order those services blocked from the country if they fail to abide by Canadian content takedown requirements.

Where a company declines to take down content, the public can also file complaints with the new Digital Recourse Council of Canada. This regulatory body would have the power to rule that content be taken down. Hearings can be conducted in secret under certain circumstances. Layered on top of these two bodies is a Digital Safety Commission, which provides support to the Commissioner and the complaints tribunal.

Who pays for all this?

The Internet companies of course. The proposed legislation will create new regulatory charges for OCSs doing business in Canada to cover the costs of the regulatory structure as the companies will pay for the Digital Safety Commissioner, the Digital Recourse tribunal, and the Digital Commission. As part of the payment requirements, the Digital Safety Commissioner can demand financial disclosures from OCSs to determine ability to pay and Canadian revenues.

Far from constituting a made-in-Canada approach, the government has patched together some of the worst from around the world: 24 hour takedown requirements that will afford little in the way of due process and will lead to over-broad content removals on even questionable claims, website blocking of Internet platforms that won’t abide by its content takedown requirements, a regulatory super-structure with massive penalties and inspection powers, hearings that may take place in secret in some instances, and regulatory charges that may result in less choice for consumers as services block the Canadian market. Meanwhile, core principles such as the Charter of Rights and Freedoms or net neutrality do not receive a single mention.

The government says it is taking comments until September 25th, but given the framing of the documents, it is clear that this is little more than a notification of the regulatory plans, not a genuine effort to craft solutions based on public feedback. For a government that was elected with a strong grounding in consultation and freedom of expression, the reversal in approach could hardly be more obvious.

The post Picking Up Where Bill C-10 Left Off: The Canadian Government’s Non-Consultation on Online Harms Legislation appeared first on Michael Geist.

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