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January 18 class

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  1. 1. Global Information Law and Practice Net Neutrality January 18, 2018 professor michael geist university of ottawa, faculty of law
  2. 2. Digital Copyright Innovations
  3. 3. User Exceptions • Non-commercial User Generated Content – Use new work to create new work AND authorize intermediary to disseminate if: • Non-commercial purposes • Attribution if possible • Source not infringing copyright • No substantial adverse effect (including financial) on exploitation of existing work
  4. 4. User Exceptions • Expansion of fair dealing – Prior coverage research, private study, news reporting, criticism, review – Adds education, parody, satire • Format shifting (reproduction for private purposes) – Authorized copy – Don’t give it away – No circumvention – Use for private purposes – Not a copy to CD (private copying levy) • Time shifting – Legally acquire program – No circumvention – One copy – Only keep for “reasonable” period of time – Don’t give it away – Private purposes – Does not apply to on-demand services
  5. 5. User Exceptions • Backup Copies – Solely for backup purposes – Not an infringing copy – No circumvention – Don’t give it away – Must destroy if don’t own or license source copy
  6. 6. Education Exceptions • Publicly Available Materials on the Internet – Education institution can reproduce, communicate, or perform any work publicly available on the Internet – Conditions • Attribution • No digital lock • No opt-out notice • No knowledge that posted without consent • Distance education – New exception for communication of lessons regardless of location of the student – Conditions • Student must destroy materials 30 days after conclusion of the course • Institution must destroy materials 30 days after conclusion of the course • Limit further communication of the lesson • Cinematographic works – New exception provided not infringing copy • Reproduction in class – Technology neutral - no longer limited to flip charts, overhead projectors, etc.
  7. 7. Library Exceptions • Digital Inter-Library Loans – Libraries can provide digital copies to their patrons or patrons of other libraries – Conditions • Measures to prevent making more than one copy • Measures to prevent communicating to another person • Measures to prevent using for more than five business days
  8. 8. Enabler Provision • “It is an infringement of copyright for a person to provide, by means of the Internet or another digital network, a service that the person knows or should have known is designed primarily to enable acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.” • Factors: – Express or implicit marketing – Knowledge – Uses other than copyright infringement – Ability to limit copyright infringement – Benefits to person – Viability of service without copyright infringement
  9. 9. Building a Balance: SCC on Copyright
  10. 10. Theberge - 2002 • Dispute between well-known Quebec artist and gallery • Initial agreement calls for posters of works. Gallery “transfers” images to canvas. Artist sues. • Issue: – Is this a reproduction? • Court sides with gallery – a reproduction requires more than one copy. This a “transfer” since one copy all the time • Note that this a 4-3 decision, suggesting split on the court
  11. 11. “Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.”
  12. 12. CCH - 2004 • Dispute between the Law Society of Upper Canada and legal publishers • Two kinds of copying at issue: – Provision of photocopy machines (authorization) – Copying on demand services • Unanimous court sides with LSUC – Strong endorsement of fair dealing – Introduction of “users’ rights” language – High threshold for authorization
  13. 13. “the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.”
  14. 14. ESAC v. SOCAN - 2012 • Is the communication right triggered for the sound recording contained in a downloaded software program? • Same music is licensed for inclusion on the program & no fee payable if purchased in physical format from a store • ESAC characterizes as double dipping • SOCAN argues additional value for the download • Court sides with ESAC – Emphasizes importance of technological neutrality – Describes the Internet as “technological taxi”
  15. 15. “The principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost for the use of more efficient, Internet-based technologies.”
  16. 16. SOCAN v. Bell - 2012 • Song previews case – is the availability of song previews on music services such as iTunes fair dealing (research) given the consumer research role • Bell et al. argue yes (though did not do so at the CB) • SOCAN argues no – Narrow interpretation of research – Individual copying vs. aggregate copying • Court sides with Bell – Very broad approach to research under fair dealing – Says aggregate copying not relevant for the “amount” of copying
  17. 17. “Limiting research to creative purposes would also run counter to the ordinary meaning of “research”, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework.”
  18. 18. “Since 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.”
  19. 19. Alberta v. Access Copyright - 2012 • Dispute over Copyright Board determination on K-12 tariff • Schools argue that virtually all copying from Access Copyright repertoire is fair dealing • Access Copyright seeks limited interpretation of fair dealing, larger tariff • Appeal involves Copyright Board’s determination of what is fair dealing • Everyone agrees that copying qualifies for six factor test – issue is how to apply it
  20. 20. “The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study. Instruction and research/private study are, in the school context, tautological.”
  21. 21. Intermediary Case Study Mike Zuck is a wealthy Silicon Valley entrepreneur who owns the majority of shares in a popular social media service. While he is excited by the success of the site, he says he has a bigger dream. “I’m thrilled that we’ve connected a billion people through my website. But what if we could bring Internet access to a billion people that don’t currently have it. Now that would be cool.” Zuck targets several countries for his idea including Brazil, India, and Indonesia. His idea is simple: convince a local wireless provider to give free Internet access. The free service will be different from its paid service. The free version be a slimmed down, basic version with access to Zuck’s site and few other sites that he alone will determine. Subscribers who want access to the entire Internet will need to pay for the service. Zuck finds partners in each country. In Brazil, the service generates objections from an app developer who is angry that his app won’t work on the free service. In India, a competing social media service is angry that it is blocked on the free service. In Indonesia, there is anger over the alteration of approved sites so that they use less data.
  22. 22. Intermediary Case Study The telecom regulators in all three countries have come together to discuss the situation and look to you for advice: 1. Do you think the services are lawful in each country? 2. Should the services be lawful? Is there anything wrong with offering a free, slimmed down service that increases Internet access? 3. What changes, if any, should be made to the service?
  23. 23. The Legal Role & Responsibility of Internet Intermediaries
  24. 24. Subscriber information (privacy) Copyright Network traffic (neutrality)
  25. 25. Net Neutrality • Definitions • US experience • Canadian experience • HK experience • India • Looking Ahead
  26. 26. Definitions Save the Internet Coalition “Network Neutrality — or "Net Neutrality" for short — is the guiding principle that preserves the free and open Internet. Put simply, Net Neutrality means no discrimination. Net Neutrality prevents Internet providers from speeding up or slowing down Web content based on its source, ownership or destination.”
  27. 27. Definitions Telecom Policy Review Panel "The Telecommunications Act should be amended to confirm the right of Canadian consumers to access publicly available Internet applications and content of their choice by means of all public telecommunications networks providing access to the Internet. This amendment should (a) authorize the CRTC to administer and enforce these consumer access rights, (b) take into account any reasonable technical constraints and efficiency considerations related to providing such access, and (c) be subject to legal constraints on such access, such as those established in criminal, copyright and broadcasting laws."
  28. 28. Definitions • Discrimination - treating equivalent content or applications in a different manner (often due to economic considerations) • Transparency - consumer awareness about the service they are buying, what content may be altered • Protection against limited competition in the market - potential for abuse due to limited consumer choice • Maintaining a level playing field
  29. 29. U.S. Experience • 2003 – Tim Wu coins net neutrality term • 2004 – FCC Commish principles: – Freedom to access content. – Freedom to run applications. – Freedom to attach devices. – Freedom to obtain service plan information • 2005 – Madison River case – block VoIP
  30. 30. U.S. Experience • 2008 – First decision over Comcast blocking BitTorrent • 2009 – FCC seeks to expand to non- discrimination and transparency • 2010 – Courts block FCC power
  31. 31. U.S. Experience • 2010 – Open Internet Order • Transparency: Consumers and innovators have a right to know the basic performance characteristics of their Internet access and how their network is being managed; • No Blocking: This includes a right to send and receive lawful traffic, prohibits the blocking of lawful content, apps, services and the connection of non-harmful devices to the network; • Level Playing Field: Consumers and innovators have a right to a level playing field. This means a ban on unreasonable content discrimination. There is no approval for so- called "pay for priority" arrangements involving fast lanes for some companies but not others; • Network Management: This is an allowance for broadband providers to engage in reasonable network management. These rules don't forbid providers from offering subscribers tiers of services or charging based on bandwidth consumed; • Mobile: The provisions adopted today do not apply as strongly to mobile devices, though some provisions do apply. Of those that do are the broadly applicable rules requiring transparency for mobile broadband providers and prohibiting them from blocking websites and certain competitive applications; • Vigilance: The order creates an Open Internet Advisory Committee to assist the Commission in monitoring the state of Internet openness and the effects of the rules.
  32. 32. U.S. Experience • 2014 – Court narrows enforcement of Open Internet Order • 2015 – New FCC support for net neutrality • 2017 – FCC order rolled back under Trump
  33. 33. HK Experience - 2004 - the incumbent network operator applied for court injunction to block voice-over-IP service provided by a competing network operator over incumbent operator’s broadband connection - Incumbent network operator also applied for judicial review of regulator’s decision to allow competing network operator’s voice- over-IP service - Matter settled outside court with incumbent operator paying costs - 2009 - Market competitive – no need for regulatory action - Smaller geography, low barriers to entry