The Canadian Human Rights Tribunal has ruled that the Internet hate provision found in the Human Rights Act is unconstitutional.  In a decision released today, the Tribunal ruled that the restriction on speech imposed by the provision is not a reasonable limit under Section 1 of the Charter of Rights and Freedoms.

ITBusiness.ca recently held a copyright roundtable on several issues, including the private copying levy.  A report and video of part one has been posted here.

Howard Knopf blogs on yesterday's final copyright roundtable, held in Peterborough.  There was some local media coverage, in which Canadian Heritage Parliamentary Secretary Dean Del Mastro questioned the closed door approach to the consultations.

A group of Edmonton residents are hosting a public copyright roundtable tomorrow (Thursday) at the University of Alberta.  Details here.

Tucows, one of Canada's Internet success stories, has a great post on copyright.  Copyright's Creative Disincentive was written by David Weinberger and does a terrific job of discussing copyright and culture.  Tucows will be appearing at the final copyright roundtable in Peterborough today and is urging Canadians to contribute to the process.

My column on the decision to kill the cellphone cost calculator generated considerable reaction: 

• The Liberal party issued a press release criticizing the decision and arguing that it placed the wireless industry ahead of consumers. 
• The CBC covered the story, including comments from the CWTA, PIAC, and Bell (it should be noted that Bell indicates that it did not meet with officials specifically on the cellphone calculator but rather left the issue to the CWTA).
• Catherine Middleton points out the FCC is asking questions about similar consumer disclosures and cost comparisons.
• Readers have pointed to two other private comparison sites - cellphones.ca and cellplanexpert.ca.

Last week I discussed the well-known challenge faced by millions of Canadians as they sort through a myriad of cellphone pricing plans in a marketplace still lacking in robust competition.  The subject of this week's technology law column (Toronto Star version, homepage version) is that previously unreported, however, is Industry Canada officials identified much the same problem and worked for years to develop an online tool to address it.

After spending tens of thousands of dollars creating and testing an online calculator designed to help consumers select their ideal wireless plan, Industry Minister Tony Clement killed the project weeks before it was scheduled to launch. Government records suggest intense lobbying this spring by Canada’s wireless companies, who feared the service would promote lower cost plans, played a key role in the decision.


The Office of Consumer Affairs (OCA), a branch within Industry Canada with a mandate to promote and protect consumer interests, was the original source for Which Cell Plan? A Calculator. The calculator asked consumers for detailed information about their current or anticipated cellphone use and then provided them with a detailed list of suitable plans from Canadian providers. In 2008, the OCA paid Decima Research almost $60,000 to conduct extensive usability testing. The company conducted 12 two-hour focus group sessions in Halifax, Vancouver, and Montreal that included cellphone users as well as “cellphone intenders” – those expecting to purchase a cellphone within a year.

Decima Research’s report noted “participants felt being a consumer of cellphones is frustrating and difficult. The service plans of different providers are difficult to compare because they are all different…Secondary frustrations and challenges included the length and limitations of contracts, billing inaccuracies, and quality of service issues such as dropped calls and coverage.” The focus groups’ response to the cellphone cost calculator was positive, with the vast majority of participants indicating they would use the tool and encourage friends and family to do the same.

Yet just as Industry Canada was set to launch the tool, the major wireless carriers began lobbying against it.  According to lobbyist registration records, the Canadian Wireless Telecommunications Association and Bell Canada met with officials from Clement’s office on April 8th, with the association listing telecommunications regulation and consumer issues as the topics of discussion.  Two weeks later, Telus also met with the same officials to discuss consumer issues.

The carriers were apparently concerned that the tool only covered voice services and that it was geared toward lower-priced plans. Sensing that Clement was facing pressure to block the calculator, Canadian consumer groups wrote to the Minister, urging him to stick with it.

Despite months of preparation, thousands of dollars in taxpayer expense, the creation of an effective tool, and the obvious benefits for lower income Canadians, Clement nevertheless killed the project. Given the tool’s potential to encourage more Canadians to adopt wireless services, the decision ironically came just as Clement was meeting with technology executives in an effort to kick-start a national digital agenda. According to an Industry Canada spokesperson, “technical limitations” were to blame.

With public dollars having funded the mothballed project, the government should now consider releasing the calculator’s source code and enable other groups to pick up where the OCA left off.  In the meantime, Industry Canada has posted a cellphone checklist that asks consumers many of the same questions, but does not provide any information on carrier plans or pricing.

The Globe featured an article over the weekend on the renewed emphasis on an iPod levy (ie. expansion of the private copying levy).  While the article suggests that it is the music industry that is seeking the levy, it is more accurate to say that it is copyright collectives and some artists groups that are supportive of a levy expansion.  CRIA argued against the applicability of the levy to iPods in 2007.

Yesterday I posted on how security guards outside the Toronto copyright town hall demanded that the Canadian Federation of Students and NDP MP Olivia Chow stop distributing flyers discussing their positions on copyright.  It turns out there is further fallout from the incident.  Chow was distributing a flyer that included NDP MP Charlie Angus' interview with Exclaim! on copyright along with "count on me to speak out against Bill C-61 and anti-circumvention rules. I support stronger fair dealing." The Angus interview includes comments on the need for forward looking laws, the failed DMC, and the need to ways to monetize online activities.

While none of this is new - MPs like Angus and Chow have been saying this for months - it generated an incredible response from Alan Willaert, the Canadian representative of the American Federation of Musicians. Willaert sent the following email to representatives of virtually every major Canadian creator group:

Greetings to all.

I am attaching a flyer that was handed out by Olivia Chow at last night’s Copyright Town Hall meeting at the Royal York in Toronto.  I am sure all of you will find its content equally as disgusting as I did.

In light of the fact that the NDP at its convention in Halifax this month dealt with a resolution identified as 6-21-09 Expanding Party Policy on “Supporting Canadian Creativity”, and showed clear support for “ensuring appropriate copyright protection so that creators are fairly compensated for their intellectual property”, I am shocked that both Chow and Charlie Angus are allowed to openly depart from party policy and directive, obviously just to shamelessly buy votes among young people and academics.

We intend on taking the NDP to task over this, and will accept nothing less than a retraction of Ms Chow’s statements and an apology.

Leaving aside the fact that some of those same creator groups spoke for stronger fair dealing with protection for parody at the town hall, it is incredible that we've reached the point that speaking against C-61 and for fair dealing is viewed by some groups as "disgusting" and requiring a retraction and apology.

"The town hall that didn't invite the town."

Lots of coverage this morning on the remarkable Facebook settlement, which represents a major success for Canadian privacy and CIPPIC (which launched the case). The best source of information on the forthcoming changes come from the Privacy Commissioner's letter to CIPPIC. Podcast of the press conference available here.

Ivor Tossell has a great piece and podcast in the Globe on the current copyright consultation and the active role of "users" in the debate.

Russell McOrmond writes an op-ed in the Georgia Straight on why we need protection from DRM, not for DRM.

Now Magazine has a piece urging people to attend tonight's copyright town hall in Toronto, noting the need for flexiblity in future copyright bills.

The New Zealand government has released a draft framework that moves toward open access for non-copyright information and open licensing for copyright works.

The copyright consultation has one of its biggest days today with a major town hall in Toronto, a roundtable hours before, and increased media coverage.  The consultation has attracted growing attention in recent weeks as the chart on submissions below demonstrates.  There are now over 3,000 submissions with the overwhelming majority of them speaking out against Bill C-61, anti-circumvention rules, and for stronger fair dealing (earlier charts here, here, and here).

Unfortunately, the chart is not entirely accurate in part because the government has effectively been altering some of the submissions.  This issue has arisen because of the large number of Canadians that have chosen to use the CCER submission form service.  The service allows anyone to submit their comments by either using a form letter or modifying the content as they see fit.  The government has decided to treat virtually all submissions from the CCER IP address as the form letter and simply added the relevant name to a single copy of the letter (the chart below reflects the fact that each letter is, in fact, an individual submission. Note that this is not limited to CCER, the government is doing the same thing for a form letter from the Canadian Private Copying Collective). I am reliably told that 10 to 20 percent of people who use the CCER site modify their submissions.  The government's approach has wiped out those modifications entirely by adding names to a letter that they did not sign. 

I raised this concern with Industry Canada yesterday.  They responded:

Industry Canada does not alter submissions. They are posted as received. We recognize participants using the form letter may alter the contents of the letter to best express their personal positions and opinions.  Every effort is made to identify variance in the contents of these form submissions. When we receive a form submission which also reflects a personal position, it is posted on the web site as a formal submission, in its original format.

While that may be intent, I have been provided multiple examples of original or modified letters that have not been posted to the site but rather have simply had the authors' names added.  For example, Justin Ruf of Yorkton, Saskatchewan, is listed as having signed the CCER letter and does not have an individual submission.  Yet this was his submission (posted with permission):
Dear Ministers,
I am a citizen who cares about Canada\'s cultural policy, and I am writing in regard to legislative proposals for \"copyright reform.\"

During the last Parliament, Bill C-61 provided some very sensible approaches to this complicated topic, but it also left room for improvement. As you consider the issue of copyright reform, I hope that you will work to ensure that any new legislation is not a regression from the sensible policies set out in Bill C-61.

In particular, I do not believe that \"digital rights management\" (DRM) technologies should stop the public from making lawful uses of their legitimately acquired media. Publishers using DRM push aside the delicate balance between copyright and the rights of the public - a balance set according to an assessment of the public interest by legislators - and replace it with one-sided rules that reflect publishers\' private interests. Even artists disagree with publishers\' anti-consumer use of DRM, as evidenced by the recently formed Canadian Music Creators Coalition. Therefore, as in Bill C-61, new copyright reform legislation should not make it illegal to circumvent DRM for lawful purposes.

Canada is going the way of American style DRM and this is a path we should not go down as evidenced that that course they have chosen has been nothing but problems. When I buy a product, ie a DVD/CD, why should I not be able to put that on my computer so I have have a back up copy or to stream it to my TV/sound system? Are we going to start to be like the Americans and start fining Grandparents for downloading a song off the internet, or maybe we could throw teenagers in jail? That would show them! This may sound crazy but it is happening in the USA because of a DRM system that favours Big Business.

This is an issue that a person must know more about in order to understand and I implore you to seek out the information, listen to a podcast on the issue, ask computer users, ask a consumer, ask yourself if you think you should be able to what they want with the things that you own.

These concerns are shared by a substantial and growing number of informed Canadian citizens. I hope that you will take them into account when considering any changes to Canadian copyright law. Thanks very much for your time.

Sincerely,
Justin Ruf

The submission is not even close to the same as the CCER letter, yet the government has listed Ruf as a signatory. In my view, it is the wrong approach for all stakeholders. Every Canadian who takes the time to speak out - whether a single paragraph, a long essay, or a form letter - deserves to have their voice count as a submission.  Obviously any modified letter should be posted in its original form and I would argue that the same is true for a submission based on a form letter.

Regardless of the approach you take, there are just over two weeks to join the thousands of Canadians who have spoken out.  What are you waiting for - speak out on copyright today!

Position
Number of Supporters
Submissions against another Bill C-61 2417
Submissions in favour of shorter copyright term 85
Submissions against anti-circumvention or in favour of limiting DRM/Digital locks 2517
Submissions in favour of stronger personal use/copying and backup protections
2475
Submissions in favour of an “open copyright” system 10
Submissions advocating an end to the Crown Copyright 12
Submissions opposed to adopting an American-styled DMCA 44
Submissions in favour of stronger fair use/fair dealing protections 2061
Submissions opposed to implementing WIPO 8
Submissions in favour of eliminating all copyright
3
Submissions against a three-strikes rule 25
Submissions that favour a “notice and notice” approach
2401
Submissions in favour of instituting a levy for file-sharing/monetizing P2P
19
Submissions in favour of greater exemptions for education/research 25
Submissions in favour of establish a good-faith defence that the user believed their use of a work was fair and non-infringing 2398
Submissions in favour of laws that are technologically neutral
2003
Submissions that argue individuals should be protected from liability as long as their use was private and non-commercial
1965
Submissions in favour of a parody exemption
5
Submissions in favour of ISP neutrality
5
Submissions satisfied with current laws
3
Submissions calling for a strong public domain
6
    Submissions in favour of stronger penalties for copyright infringement
5
Submissions in favour of turning copyright into a crime 2
Submissions arguing for protection for photographs
3
Submissions against works being available in digital or other forms for free 80
Submissions arguing for more protection for writers and other artists
29
Submissions opposed to creating new exceptions
2
Submissions opposed to an expansion of fair dealing
1
Submissions in favour of notice and takedown
2
Submissions in favour of implementing WIPO
4
Submissions promoting a collective licensing scheme
5
Submissions in favour of anti-circumvention/protecting digital locks
1
Submissions in favour of fining those who violate copyright laws
5
Submissions in favour of halting illegal file sharing
2
Submissions endorsing Bill C-61
1
Submissions proposing the expansion of the private copying levy
8
Submissions in favour of increasing school fees and tariffs for books and photocopies
1
    Total Submissions
3003