The Globe reports that the wireless sector is at the forefront of the government's foreign investment deregulation plans. The issue was the subject of considerable confusion following mixed signals from the Speech from the Throne and the budget.
The government appears to be backtracking on quickly opening the Canadian telecom market to foreign investment. Industry Minister Tony Clement's press secretary now says "our government will also be investigating the existing restrictions for the telecommunications industry. This is a complex issue involving changes to business models, rapidly evolving technology, and existing legislation, such as the 1993 Telecommunications Act."
In the immediate aftermath of yesterday's Speech from the Throne, some copyright watchers claimed that it foreshadowed the return of a Canadian DMCA, pointing to language that promises to "strengthen laws governing intellectual property and copyright." While the return of Bill C-61 is a possibility, comments from Industry Minister Tony Clement immediately afterward suggest that he is not a mirror image of his predecessor Jim Prentice.
Clement has spoken frequently on the need for forward-looking legislation and launched a major copyright consultation effort last summer. Yesterday, he was asked specifically about copyright and U.S. claims that Canada is a copyright outlaw on CTV's Power Play. His response:
I've been pretty clear to the Americans and in my public statements that we are moving ahead with copyright reform. The key is, from the American perspective, they want us to be part of WIPO, which is an international treaty on protecting intellectual property. We don't have a problem with that, but we're going to do it in a made-in-Canada way. We're not just going to take what the Americans are doing or what the Europeans are doing. We are going to fit it to the Canadian context and I think that is the right thing to do.
Tom Clark then asks - "so are we joining WIPO?" and Clement says that Canada will be consistent with WIPO. Note that Clement was also asked specifically about a digital economy strategy. After noting that Canada is "fair to middling" in international ranks on the digital economy, he pointed to three key areas. First, the need for a legislative agenda that includes passing the Electronic Commerce Protection Act (the anti-spam bill), introducing copyright reform, and updating Canadian privacy laws. Second, investing in broadband and networks. Third, helping spur business adoption of technology.
Parliament resumes this week with the Speech from the Throne today following the unexpected - and unexpectedly contentious - decision by Prime Minister Stephen Harper to reset the legislative agenda through prorogation. The House of Commons may have been quiet but my weekly technology law column (Toronto Star version, homepage version) notes the calls for a national digital strategy have grown louder in recent months. Last week, the International Telecommunications Union issued its annual global measurement of the information society, which served again to highlight Canada’s sinking global technology ranking. Canada ranked 21st (down from 18th in 2007) in its ICT Development Index, which groups 11 indices including access, use, and technology skills.
Canada’s sliding global ranking reflects 10 years of policy neglect. Other countries prioritized digital issues while leaders here from all parties have been content to rest on the laurels of the late 1990s, only to wake up to a new, less-competitive reality in 2010.
Industry Minister Tony Clement has spoken frequently about the need for a national digital strategy, but concrete policies have been slow in coming. The parliamentary restart presents another opportunity for action. Given the failure to date to articulate a comprehensive digital strategy, perhaps a different approach might work. Following the Speech from the Throne and the budget, there will be about 100 days until the summer break. Clement could set a series of realizable targets during those 100 days. Such targets would not solve ongoing concerns regarding the competitiveness of Canada’s wireless sector or the findings that Canadians pay higher prices for slower Internet speeds than consumers in many other countries, but some momentum could be gained and some quick wins achieved.
A 100-day digital agenda could have four components: new laws, new initiatives, new enforcement, and new policy development.
On the legislative front, Clement should reintroduce the Electronic Commerce Protection Act, the anti-spam bill that passed through the House of Commons and was to have been the subject of Senate hearings earlier this year. Having received all-party support and extensive study, the legislation should be placed on a rocket docket with a commitment to passing the bill before the summer recess.
Two other long-awaited bills should be part of the short-term digital strategy. With the national copyright consultation complete, a digital copyright bill consistent with Clement’s commitment to a forward-looking, technology neutral approach should be introduced within the next 100 days. So, too, should a privacy reform bill, which Clement identified as a priority at the start of 2010.
Beyond new legislation, government can use the next 100 days to lead by example. A new data.gc.ca website with open government datasets like those found in the U.S. and U.K. should be easy to achieve. The government also could follow the Australian approach to solve the crown copyright problem that restricts use of government documents by adopting open licences that grant permission to use documents without formal approval (or the need for a new law).
The government can use the next 100 days to step up its digital enforcement agenda. This includes ensuring Internet providers are compliant with net neutrality requirements and that telemarketers abide by do-not-call legislation.
Finally, longer-term digital agenda issues must be put on the policy front burner. These include discussions on spectrum allocation, digital television transition, removal of Canadian control requirements in the telecom sector, and new media issues.
None of these initiatives will mark an immediate resurgence in Canada’s digital ranking. But after years of missteps, perhaps some baby steps now would put the nation’s digital agenda back on track.
SaveOurNet.ca points to a letter written by NDP MP Charlie Angus to Industry Minister Tony Clement late last year on net neutrality. The money paragraph focuses on the enforcement side of the CRTC's Internet traffic management guidelines:
I urge you to do what is in your power to curtail ISP's discriminatory traffic-shaping practices. In order to make Net Neutrality a reality in Canada, I would ask that you direct the CRTC to adopt it as part of Canada's internet policy, and enforce it through regular compliance checks of ISP traffic.
As the traffic management guidelines take effect, Canadians should begin to see more detailed disclosure of ISP traffic management practices and the possibility of complaints or investigations.
Predictions about future technology law and policy developments are always fraught with uncertainty, yet identifying the key players is a somewhat easier chore. Although Parliament is not scheduled to resume until March, my weekly technology law column (Toronto Star version, homepage version) tracks ten who are likely to lead the way in Canada in the coming year.
Tony Clement, federal Industry Minister. From anti-spam legislation to the national copyright consultation, Clement demonstrated a keen interest in technology issues during his first year as industry minister. 2010 should be no different, with privacy reform legislation, a new copyright bill, and rules for another wireless spectrum auction all on the agenda. To top it off, Clement has sent strong signals that he wants to forge ahead with a long-overdue national digital strategy.
James Moore, federal Canadian Heritage Minister. Young, bilingual, and tech-savvy, Moore broke the mould for a minister of Canadian heritage. This year will present Moore with at least two highly contentious issues likely to leave many unhappy: copyright reform and fee-for-carriage for television broadcast signals.
Stockwell Day, federal International Trade Minister. The link between international trade and tech policy is not immediately obvious, yet two trade initiatives mean that Day may ultimately dictate policy to his cabinet counterparts Clement and Moore. The Anti-Counterfeiting Trade Agreement and the Canada - European Union Trade Agreement both fall under his mandate and feature detailed intellectual property provisions.
Peter Van Loan, federal Public Safety Minister. Van Loan is responsible for Bills C-46 and C-47, the controversial lawful access legislation that died last week with the decision to prorogue Parliament. Part security, part privacy, and part Internet, the legislation likely will be reintroduced and face stiff opposition when it comes before a House of Commons committee in 2010.
Charlie Angus, NDP digital affairs critic. The only opposition member to make the list, Angus is frequently the sole voice on digital policy issues on Parliament Hill. With the Liberal Party seemingly unable to muster a coherent digital policy, Angus has filled the void by introducing net neutrality legislation, injecting himself into the copyright debate, and providing a consistent voice for artists’ concerns.
Konrad von Finckenstein, chair of the Canadian Radio-television and Telecommunications Commission. Coming off a busy year, von Finckenstein will remain in the spotlight in 2010. The CRTC’s fee-for-carriage decision will become an immediate lightning rod for praise or criticism (likely both), while the commission’s enforcement efforts on the do-not-call registry and net neutrality guidelines will face intense scrutiny.
Jennifer Stoddart, Privacy Commissioner of Canada. Stoddart enters the final year of her seven-year term with an opportunity to leave her mark on privacy in Canada. Her Facebook decision garnered international attention in 2009, leaving Stoddart with considerable capital to play an influential role on lawful access, privacy reform, and anti-spam legislation.
Ron Kirk, U.S. Trade Representative. Kirk is the leading figure on U.S. trade policy. U.S. trade officials will undoubtedly claim that Canadian laws are inadequate and Kirk will therefore maintain maximum pressure on Canada on behalf of U.S. lobby interests.
David Jacobson, U.S. Ambassador to Canada. Jacobson had scarcely unpacked after being confirmed to the post this fall before he was criticizing Canadian intellectual property laws. Working together with Kirk, Jacobson will provide ample evidence that a change in administration does not mean a change in attitude on digital policy.
Thousands of online Canadians. Last year demonstrated that Canadians are keenly aware of digital issues and willing to actively voice their views. Record numbers participated in the copyright consultation, thousands submitted comments to the CRTC on net neutrality, and more than 100,000 emailed their views on the fee-for-carriage debate. Combining passion with Internet technologies, the power of the individual has thrust digital policies to the forefront, enabling individual Canadians to ensure their concerns are factored into the decision-making process.
Canwest features an interview with Industry Minister Tony Clement in which he sets out priorities for 2010: modernizing Canadian privacy law and introducing a new copyright bill.
The Communications Energy and Paperworkers’ Union, Canada's largest telecom union, says its plans to challenge the Globalive decision in federal court, arguing the "decision is illegal."
Industry Minister Tony Clement announced this morning that the Government has overturned the CRTC decision on Globalive, giving the go-ahead for the fourth national wireless carrier to enter the marketplace. Clement stated "Globalive is a Canadian company, and meets Canadian ownership and control requirements under the Telecommunications Act." While Clement was careful to say that the decision applies solely to these facts, the Order-in-Council seems to suggest that the door is open to greater foreign involvement in the Canadian wireless marketplace.
The key paragraphs focus on the need to interpret the Canadian control requirements with enhanced competition in mind and on the absence of foreign investment restrictions under the law:
Whereas the Governor in Council considers that, when possible, the Canadian ownership and control requirements should be applied in support of the Canadian telecommunications policy objectives set out in the Act, including enhancing competition in the telecommunications market;
Whereas the Canadian ownership and control requirements of the Act restrict the ownership of voting shares by non-Canadians, but the Act does not impose limits on foreign investment in telecommunication common carriers and should be interpreted in a way that ensures that access to foreign capital, technology and experience is encouraged in a manner that supports all of the Canadian telecommunication policy objectives;
These paragraphs signal the prioritization of enhanced competition in the marketplace. With support for foreign investment, the removal of foreign control limits may not be far behind.
The Anti-Counterfeiting Trade Agreement made it to the floor of the House of Commons yesterday as NDP MP Charlie Angus raised concerns about the agreement, the lack of transparency, and questions about whether the recent copyright consultation was little more than theatre given the prospect that ACTA will decide what Canadian copyright law ultimately looks like.
Industry Minister Tony Clement responded by arguing that the ACTA is not law in Canada, stating that it is "subservient" to domestic law. While that is true for the moment, once it is completed the pressure to implement - much like the WIPO Internet treaties - will be enormous. Clement also stated that people interested in the treaty could check out my website to learn more. While I appreciate the shout-out, it should be obvious to everyone that this website is not a replacement for full and frank disclosure on ACTA and the Canadian government's position on the treaty. A full Hansard transcript of the exchange, along with the YouTube version, follows below:
And the transcript:
Angus: Mr. Speaker, the European Union has leaked details of the secret ACTA negotiations in Korea and guess what? It has exposed the industry minister's so-called public consultations on copyright as a total sham, because ACTA will deep six Canada's ability to establish copyright policy. Further, it will strip thousands of citizens from the right to even use the Internet under the idiotic “three strikes and you are out“ policy. The government has no right to negotiate away our domestic copyright laws. Will the minister table in the House the mandate letter that was given to the negotiators to start the ACTA talks?
Clement: Mr. Speaker, despite the hon. member's fear-mongering, the Government of Canada has not adhered to or agreed to anything in the ACTA negotiations. The ACTA negotiations are in fact subservient to any legislation that is put forward in the House. In good faith, I and my colleague, the hon. Minister of Canadian Heritage and Official Languages, talked to the people of Canada, talked to stakeholders about a future copyright bill. We are proud of the fact that we have had that consultation because we got some good ideas, even from some NDPers.
Angus: Mr. Speaker, the ACTA provisions read like a wish list for the U.S. corporate lobby because it will override any flexibility for WIPO, it will gut our domestic copyright policies and it will criminalize thousands of Internet users through the three strikes provision. Canada needs a minister who is willing to stand up for the innovation agenda, not a minister who is acting like a hand puppet for the U.S. embassy. Why will the minister not table the ACTA negotiations so we can open it to public scrutiny?
Clement: Mr. Speaker, if the hon. member wants to read more about it, he could go to Michael Geist's website. The fact is that anything that goes on in ACTA is completely subservient to what we as parliamentarians decide on this issue. We have gone further in terms of ensuring the public is aware of the issues involved in copyright renewal and reform than any other government and we are proud of that record.