Communications Law 2023

EU Article 13 Copyright Law/Youtube.

In September 2017 the European Parliament voted on an amended version of the EU copyright law.
Overall, the directive intended to find a balance between rights holders (record companies or publishers) and platforms such as YouTube.
Article 13 of this EU’s new Directive on Copyright is very controversial. The fact that platforms will be liable at the moment of upload for any copyright infringement can be a real issue for Youtube.

Firstly, one of the problems Youtube is facing is the fact that it will be forced to delete many contents if it wants to implement this new European directive. As a result, this means that some of the videos shared online around the world may no longer be accessible in Europe.
Then, Article 13 will oblige Youtube to negotiate agreements with rightholders, which means that they will, for example, have to check that a video does not share a song or copyright content.
To respect the directive, the platform will have to set up a filtering system that blocks the broadcasting of this type of video if it violates the copyright law.
So, the risk with this new directive is that Youtube will have to check every video before it’s released to see if the creator owns everything (from songs to visuals). Many YouTubers argued that the time before publication will therefore be longer, leaving little room for spontaneity (No more Youtube video reaction to actuality?)
Then, it will let little room for creativity. For example, if you watch a simple video of a youtuber speaking in front of his camera and behind him there is a Disney plush, it will be blocked.

YouTube is fighting against this directive by trying to convince Internet users to share #SaveyourInternet to protest.

On the other hand, music industry companies are supporting this new copyright law, arguing that it will protect the rights of artists on their creation

What do you think? Do you think Article 13 will be a good way to protect copyrights? do you think this will impact the creativity of content creators too much?
More generally, what balance should be find between creativity and copyrights?

The directive: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2018-0337+0+DOC+XML+V0//EN

https://www.youtube.com/watch?v=TRYSxIYHS0w
https://www.youtube.com/intl/com/saveyourinternet/
https://www.musicbusinessworldwide.com/will-article-13-really-kill-youtube-read-it-for-yourself-its-only-240-words-long/

Question of the Week (Class 4): Should there be “should’s” in S. 3 of the Broadcasting Act?

As we started discussing last week, S.3 of the Broadcasting Act (S.C. 1991, c. 11) is bit different from most other statutory provisions you might have come across. It is rather full of the word “should”. This is in stark contrast to most statutory drafting norms and, interestingly for our purposes, quite different in style if not substance from a similar in purpose S.7 of the Telecommunications Act (S.C. 1993, c. 38).

Some excerpts from the Broadcasting Act (S.C. 1991, c. 11) ….

“Broadcasting Policy for Canada

Declaration

3 (1) It is hereby declared as the broadcasting policy for Canada that

(a) the Canadian broadcasting system shall be effectively owned and controlled by Canadians;

(b) the Canadian broadcasting system, operating primarily in the English and French languages and comprising public, private and community elements, makes use of radio frequencies that are public property and provides, through its programming, a public service essential to the maintenance and enhancement of national identity and cultural sovereignty;…

(d) the Canadian broadcasting system should

(i) serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada,

(ii) encourage the development of Canadian expression by providing a wide range of programming that reflects Canadian attitudes, opinions, ideas, values and artistic creativity, by displaying Canadian talent in entertainment programming and by offering information and analysis concerning Canada and other countries from a Canadian point of view,

(iii) through its programming and the employment opportunities arising out of its operations, serve the needs and interests, and reflect the circumstances and aspirations, of Canadian men, women and children, including equal rights, the linguistic duality and multicultural and multiracial nature of Canadian society and the special place of aboriginal peoples within that society, and

(iv) be readily adaptable to scientific and technological change;

(e) each element of the Canadian broadcasting system shall contribute in an appropriate manner to the creation and presentation of Canadian programming;

(f) each broadcasting undertaking shall make maximum use, and in no case less than predominant use, of Canadian creative and other resources in the creation and presentation of programming, unless the nature of the service provided by the undertaking, such as specialized content or format or the use of languages other than French and English, renders that use impracticable, in which case the undertaking shall make the greatest practicable use of those resources;

(g) the programming originated by broadcasting undertakings should be of high standard;

(h) all persons who are licensed to carry on broadcasting undertakings have a responsibility for the programs they broadcast;

(i) the programming provided by the Canadian broadcasting system should

(i) be varied and comprehensive, providing a balance of information, enlightenment and entertainment for men, women and children of all ages, interests and tastes,

(ii) be drawn from local, regional, national and international sources,

(iii) include educational and community programs,

(iv) provide a reasonable opportunity for the public to be exposed to the expression of differing views on matters of public concern, and

(v) include a significant contribution from the Canadian independent production sector;

(j) educational programming, particularly where provided through the facilities of an independent educational authority, is an integral part of the Canadian broadcasting system;

(k) a range of broadcasting services in English and in French shall be extended to all Canadians as resources become available;

(l) the Canadian Broadcasting Corporation, as the national public broadcaster, should provide radio and television services incorporating a wide range of programming that informs, enlightens and entertains;

(m) the programming provided by the Corporation should

(i) be predominantly and distinctively Canadian,

(ii) reflect Canada and its regions to national and regional audiences, while serving the special needs of those regions,

(iii) actively contribute to the flow and exchange of cultural expression,

(iv) be in English and in French, reflecting the different needs and circumstances of each official language community, including the particular needs and circumstances of English and French linguistic minorities,

(v) strive to be of equivalent quality in English and in French,

(vi) contribute to shared national consciousness and identity,

(vii) be made available throughout Canada by the most appropriate and efficient means and as resources become available for the purpose, and

(viii) reflect the multicultural and multiracial nature of Canada;

(n) where any conflict arises between the objectives of the Corporation set out in paragraphs (l) and (m) and the interests of any other broadcasting undertaking of the Canadian broadcasting system, it shall be resolved in the public interest, and where the public interest would be equally served by resolving the conflict in favour of either, it shall be resolved in favour of the objectives set out in paragraphs (l) and (m);

(o) programming that reflects the aboriginal cultures of Canada should be provided within the Canadian broadcasting system as resources become available for the purpose;

(p) programming accessible by disabled persons should be provided within the Canadian broadcasting system as resources become available for the purpose;

(q) without limiting any obligation of a broadcasting undertaking to provide the programming contemplated by paragraph (i), alternative television programming services in English and in French should be provided where necessary to ensure that the full range of programming contemplated by that paragraph is made available through the Canadian broadcasting system;

(r) the programming provided by alternative television programming services should

(i) be innovative and be complementary to the programming provided for mass audiences,

(ii) cater to tastes and interests not adequately provided for by the programming provided for mass audiences, and include programming devoted to culture and the arts,

(iii) reflect Canada’s regions and multicultural nature,

(iv) as far as possible, be acquired rather than produced by those services, and

(v) be made available throughout Canada by the most cost-efficient means;

(s) private networks and programming undertakings should, to an extent consistent with the financial and other resources available to them,

(i) contribute significantly to the creation and presentation of Canadian programming, and

(ii) be responsive to the evolving demands of the public; and

(t) distribution undertakings

(i) should give priority to the carriage of Canadian programming services and, in particular, to the carriage of local Canadian stations,

(ii) should provide efficient delivery of programming at affordable rates, using the most effective technologies available at reasonable cost,

(iii) should, where programming services are supplied to them by broadcasting undertakings pursuant to contractual arrangements, provide reasonable terms for the carriage, packaging and retailing of those programming services, and

(iv) may, where the Commission considers it appropriate, originate programming, including local programming, on such terms as are conducive to the achievement of the objectives of the broadcasting policy set out in this subsection, and in particular provide access for underserved linguistic and cultural minority communities.”

Now some excerpts from the Telecommunications Act (S.C. 1993, c. 38)…

“Canadian Telecommunications Policy

Objectives

7 It is hereby affirmed that telecommunications performs an essential role in the maintenance of Canada’s identity and sovereignty and that the Canadian telecommunications policy has as its objectives

(a) to facilitate the orderly development throughout Canada of a telecommunications system that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions;

(b) to render reliable and affordable telecommunications services of high quality accessible to Canadians in both urban and rural areas in all regions of Canada;

(c) to enhance the efficiency and competitiveness, at the national and international levels, of Canadian telecommunications;

(d) to promote the ownership and control of Canadian carriers by Canadians;

(e) to promote the use of Canadian transmission facilities for telecommunications within Canada and between Canada and points outside Canada;

(f) to foster increased reliance on market forces for the provision of telecommunications services and to ensure that regulation, where required, is efficient and effective;

(g) to stimulate research and development in Canada in the field of telecommunications and to encourage innovation in the provision of telecommunications services;

(h) to respond to the economic and social requirements of users of telecommunications services; and

(i) to contribute to the protection of the privacy of persons.“

Legally do you see these provisions as effectively similar, or quite different? Is the difference simply that the Telecommunications Act requires some positive action of licensees (no matter how small), while the Broadcasting Act doesn’t necessarily require even that?

In Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, [2012] 3 S.C.R. 489, Rothstein J. (for the majority) had this to say about S.3:

“Policy statements, such as the declaration of Canadian broadcasting policy found in s. 3(1) of the Broadcasting Act, are not jurisdiction-conferring provisions. They describe the objectives of Parliament in enacting the legislation and, thus, they circumscribe the discretion granted to a subordinate legislative body (Sullivan, at pp. 387-88 and 390-91). As such, declarations of policy cannot serve to extend the powers of the subordinate body to spheres not granted by Parliament in jurisdiction-conferring provisions.

In my opinion, to find jurisdiction, it was not sufficient for the CRTC to refer in isolation to policy objectives in s. 3 and deem that the proposed value for signal regime would be beneficial for the achievement of those objectives….

In my opinion, CKOY cannot stand for the proposition that establishing any link, however tenuous, between a proposed regulation and a policy objective in s. 3 of the Act is a sufficient test for conferring jurisdiction on the CRTC. Such an approach would conflict with the principle that policy statements circumscribe the discretion granted to a subordinate legislative body.

The difference between general regulation making or licensing provisions and true jurisdiction-conferring provisions is evident when this case is compared with Bell Canada v. Bell Aliant Regional Communications, 2009 SCC 40, [2009] 2 S.C.R. 764. In Bell Aliant, this Court was asked to determine whether the creation and use of certain deferral accounts lay within the scope of the CRTC’s express power to determine whether rates set by telecommunication companies are just and reasonable. The CRTC’s jurisdiction over the setting of rates under s. 27 of the Telecommunications Act, S.C. 1993, c. 38, provides that rates must be just and reasonable. Under that section, the CRTC is specifically empowered to determine compliance with that requirement and is conferred the express authority to “adopt any method or technique that it considers appropriate” for that purpose (s. 27(5)).

This broad, express grant of jurisdiction authorized the CRTC to create and use the deferral accounts at issue in that case. This stands in marked contrast to the provisions on which the broadcasters seek to rely in this case, which consist of a general power to make regulations under s. 10(1)(k) and a broad licensing power under s. 9(1)(b)(i). Jurisdiction-granting provisions are not analogous to general regulation making or licensing authority because the former are express grants of specific authority from Parliament while the latter must be interpreted so as not to confer unfettered discretion not contemplated by the jurisdiction-granting provisions of the legislation.

That is the fundamental point. Were the only constraint on the CRTC’s powers under s. 10(1) to be found in whether the enacted regulation goes towards a policy objective in s. 3(1), the only limit to the CRTC’s regulatory power would be its own discretionary determination of the wisdom of its proposed regulation in light of any policy objective in s. 3(1). This would be akin to unfettered discretion. Rather, discretion is to be exercised within the confines of the statutory regime and principles generally applicable to regulatory matters, for which the legislature is assumed to have had regard in passing that legislation.“

Worth noting is that Mr. Justice Rothstein never takes on the the word “should”. But if there were no “should’s” in S. 3 might Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168 have been decided differently.

Which begs the core question:

Sorry, there are no polls available at the moment.

Jon

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Netflix’s Rising Popularity

This week Netflix was nominated for 15 Oscars – demonstrating that it is a serious competitor to the traditional cinema industry.

It comes in the same week that they announced that they were increasing prices for their subscribers. Furthermore, Netflix has recently claimed that their non-US subscribers have risen dramatically over the past month.

However their formula for measuring their own popularity has been called into dispute in the past. They claimed that Birdbox was watched by 45 million ‘accounts’ in the first week of its release, but this was measured on viewers watching 70% of the movie – compared to normal viewing statistics which tend to only count full views.

My thoughts on this are the following (most of which I don’t have answers to!):
– How can we compare the popularity and market trends of streaming services such as Netflix when they calculate (and possibly inflate) their own popularity rather than it being objectively measured?
– Are online streaming services even as popular as we think considering that their viewing statistics are not the most trustworthy?
– That being said, Netflix is clearly much more popular than its competitors (Hulu, Amazon Video etc). So, do we risk seeing a monopoly of the movie market in the coming years? What does this mean for consumers?
– Does this mean that they should be more regulated?
– Should online streaming service films be allowed to be nominated at the Oscars, which was originally for cinema feature films?

News of the Week; January 23, 2019

MEDIA, COMMUNICATIONS & NET NEUTRALITY

DIGITAL

CREATIVITY

SURVEILLANCE & PRIVACY

GAMES

Jon

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Results of today’s “One Word Poll” on your policy priority for the communications system

Results

Freedom = 4

Privacy = 4

Security = 3

Access = 2

Open = 2

Balance = 1

Consumer Protections = 1

Creativity = 1

Fact-based = 1

Innovation = 1

Net-neutrality = 1

Transparency = 1

Thanks to everyone who played…

Jon

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Class 3 Slides & Video – “The Roles of Communications & Content in Defining Justice, Sovereignty & Culture”

Video & slides below.

Also below you will find the video we didn’t get to watch “Lessons from fashion’s free culture” which addresses question of the conditions required for optimal creative eco-systems. Since so much of what broadcasting, telecommunications, and the internet carry and facilitate is “creative”, any deeper analysis of the roles of regulation (or not) of mediums must necessarily wrestle with the complexities of how creativity actually works.

Jon

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Question of the Week (Class 3): Should Canada ban Huawei from our 5G Networks?

Thanks to Mishaal for doing the heavy lifting in the post just below. Will add a couple of more articles for you to consider (click on the screen-captures).

So our Question of the Week is simply:

Sorry, there are no polls available at the moment.

Jon

With Canadian-Chinese relations in question, should Canada ban Huawei from our 5G Networks?

Amidst all the turmoil of the arrest of Huawei chief financial officer Meng Wanzhou, Canada must decide what they are to do with Huawei, who Crown lawyers describe as the world’s largest telecommunications company. The firm employs 180,000 people in more than 170 countries and regions worldwide, including more than 700 people in Canada, which exasperates the situation. Ultimately, should we follow the lead of many of our allies and ban the telecommunications giant or will we continue to allow them to utilize our network, allowing them to infiltrate our networks or gain access to confidential information.

The Globe and Mail states that “New Zealand, Australia and the United States have already announced they will ban Huawei from participating in their next-generation mobile data networks. Britain has not yet formally banned Huawei, but its main telecom company, BT Group, has announced it will be stripping Huawei from its 3G and 4G operations and banning it from its 5G network. The director of Britain’s MI6 Alex Younger has even gone on the public record raising the issue of whether they’d be “comfortable with Chinese ownership of these technologies.” Taiwan, Japan and countries in Europe are also getting cold feet on Huawei.”

The worry about Huawei stems from their close relationship with the Chinese government, who have a propensity to take advantage when the opportunity arises in the cyber world. The Glove and Mail report that ” Poland’s Internal Security Agency has arrested and charged a Huawei employee with espionage. And recent news media reports reveal U.S. authorities are pursuing a criminal investigation of Huawei for stealing trade secrets of U.S. firms.” The likelihood of cyber espionage being undertaken is entirely likely and is nearly certain with the implementation of the China’s 2017 National Intelligence Law, which gives Beijing the power to compel Huawei’s support for its intelligence work.

Taking all this into consideration, do you think Canada should ban Huawei from the development of our 5G network?

https://www.theglobeandmail.com/opinion/article-for-the-security-of-canadians-huawei-should-be-banned-from-our-5g/

https://www.cbc.ca/news/canada/british-columbia/huawei-meng-extradition-questions-fraud-1.4943162

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How to Post (course members only)

Once you have signed in through your CML account, posting to the website is pretty simple.

All you have to do is add “post” (without quotes) to the end of the URL. Once you do so and press enter you will be taken to a page where you can post.

So you will go from this…