Law Bytes

The right to repair would seem like a political no-brainer: a policy designed to extend the life of devices and equipment and the ability to innovate for the benefit of consumers and the environment. Yet somehow copyright law has emerged as a barrier on that right, limiting access to repair guides and restricting the ability for everyone from farmers to video gamers to tinker with their systems. The government has pledged to address the issue and Bill C-244, a private members bill making its way through the House of Commons, would appear to be the way it plans to live up to that promise. Alissa Centivany, an assistant professor in the faculty of information and media studies at Western University and Anthony Rosborough, who completing his doctoral thesis at the European University Institute in Florence and is set to take up a joint appointment in Law and Computer Science at Dalhousie University later this year, have been two of the most outspoken experts on this issue in Canada. They join the Law Bytes podcast to talk about why the time has come for government action, their experience before a House of Commons committee on the bill, and unpack some of the confusion arising from late breaking amendments.

It has taken many months, but Bill C-27, the government’s long overdue effort at privacy reform finally is headed to committee for review. Philippe Dufresne, the Privacy Commissioner of Canada, has been patiently waiting for this moment, armed with a comprehensive review of the bill and a wide range of recommendations for amendments that include a more explicit framing of privacy as a fundamental right. Dufresne was appointed as Canada’s privacy commissioner nearly one year ago and in months since has made numerous committee appearances, issued high profile findings involving companies such as Home Depot, battled Internet companies in the courts, and worked on the privacy implications of AI. He joins the Law Bytes podcast to reflect back on his first year in the position and to outline his proposals to strengthen Canada’s best shot at a modernized privacy law.

Bill C-18, the Online News Act, has now shifted to the Senate, where the Transportation and Communications committee, is reviewing a bill that has led Meta to say it plans to block news sharing in Canada altogether in the bill passes in its current form. I appeared before the committee earlier this month with discussion that focused on a wide range of issues, including the risks of mandating payments for links, the non-compliance with international copyright obligations, why the CBC should not be included in the payment for links system, and how a fund would be a better approach. This week’s Lawbytes podcast goes inside the committee room for my opening statement and exchanges with half a dozen Senators.

For the second consecutive year, the government is using the Budget Implementation Act to quietly pass concerning legislation with minimal oversight or public attention. Last year, the BIA was used to extend the term of copyright in order to comply with the USMCA. This year, it is privacy that is at issue, with provisions related to political parties. Why would the government squeeze in privacy rules on political parties in Bill C-47? Colin Bennett, a Professor Emeritus at the University of Victoria and a leading privacy expert, has the answer. He’s been focused on Canada’s inadequate privacy rules governing political parties for a decade and is now sounding the alarm on the bill, noting that the provisions appear to be an effort to sideline a case in British Columbia that would apply tougher provincial privacy rules to Canada’s national political parties. He joins the Law Bytes podcast to explain.

The recent dust-up between Twitter and the CBC over a “government funded media” label sparked fiery rhetoric from both sides. Opponents of the CBC invoked the notion of propaganda from the public broadcaster, while supporters responded that such comments amounted to an attack on a Canadian institution. That heated debate obscures the reality that there is a discussion worth having about the CBC’s independence, its transparency, and public reporting. Monica Auer, the executive director of Canada's Forum on Research and Policy in Communications, recently wrote about that issue and she joins the Law Bytes podcast to assess whether the CBC is as independent as it says it is.

The controversy over Facebook and Cambridge Analytica was back in the spotlight in Canada as the Federal Court sided with Facebook and against the Privacy Commissioner of Canada in a decision arising from a 2019 investigation into the matter. The Privacy Commissioner ruled against Facebook in 2019, but Facebook disagreed with the findings, took the matter to court, and won. What lies behind the decision and what does it mean for privacy in Canada? My colleague Teresa Scassa, who holds the Canada Research Chair In Information Law, is widely regarded as one of Canada’s leading privacy law experts. She posted on the decision soon after its release and joins the Law Bytes podcast to talk about the ruling and its broader implications.

ChatGPT burst onto the public scene late last year, giving artificial intelligence its “aha moment” for many people. AI is now seemingly everywhere, attracting enormous attention and excitement alongside concerns, legal threats and talk of regulation. The potential of AI is evident to just about everyone, but the challenges associated with bias, copyright, privacy, misinformation and more can’t be ignored. Cohere AI is a Canadian-based AI firm that is widely viewed as one of Canada’s AI stars for its large language models that enable companies of all sizes to integrate AI technologies. Aidan Gomez, who worked on the “T” in ChatGPT, is the co-founder and CEO of Cohere AI. He joins the Law Bytes podcast to talk about AI and his views on the myriad of emerging legal and regulatory issues.

Last week, Innovation, Science and Industry Minister François-Philippe Champagne tried to spin his approval of the Rogers-Shaw merger and the enhanced role of Videotron as a win for Canadians, arguing that somehow fewer competitors would lead to greater competition. But in recent months, the Canadian communications landscape has shifted, not only with this merger but also with the gradual disappearance of a half-dozen independent providers who have been swallowed up by the large companies. What does this mean for the wireless and Internet competition in Canada? Is there any hope for consumers for a respite from some of the world’s highest prices? Paul Andersen is the Chair of CNOC - the Competitive Network Operators of Canada - and the President of E-Gate Networks, an independent provider. He joins the Law Bytes podcast to talk about the implications of the merger, the loss of many independent providers and recent leadership changes at the CRTC.

Bill C-18, the online news bill whose foundation is mandated payments for links, has unsurprisingly sparked reaction from Google and Facebook that raises the possibility of stopping linking to Canadian news. In an act of obvious retribution, the government responded to the companies response with a motion that demanded a wide range of internal and external documents dating back years and even looped in the private correspondence of companies, NGOs, journalists and potentially of thousands of Canadians. Perrin Beatty is a former Cabinet Minister under Prime Ministers Clark and Mulroney, was named President of the CBC by Jean Chretien, and is now the President and CEO of the Canadian Chamber of Commerce. His members are split in their views of Bill C-18, but not on the motion at Heritage committee. He joins the Law Bytes podcast to discuss the concerns with the motion and the dangerous precedent it sets.

In recent years, there has been growing effort to link longstanding concerns about Canadian innovation with patents. The argument – which has crossed into Canada’s strategy around AI – posits that the road to an innovative economy is inextricably linked to a greater emphasis on intellectual property and in particular on patents. But what if the correlation between patents and innovation is weak at best? What if an emphasis on patents may actually be harmful to startups whose attention and resources is better placed elsewhere? Peter Carrescia is a successful innovator and investor who recently wrote a Globe and Mail op-ed that raises precisely these issues. He joins the Law Bytes podcast to talk about his experience and concerns with direction of government policy that may be mistaking an IP policy for an innovation one.

TikTok may be enormously popular, but according to the growing number of government, there are concerns regarding links between the app and the Chinese government. That has led to a rapid spread bans of the TikTok app on government devices not only at the federal level, but at provincial and municipal governments and even at universities for university-owned devices. But is TikTok unique in this regard? How to reconcile the government’s insistence that TikTok contribute to Cancon in Bill C-11 with it banning the app due to security risks? Are the privacy concerns more about TikTok or the government’s inaction on privacy reform? Fenwick McKelvey is an Associate Professor in Information and Communication Technology Policy at Concordia University and the co-director of the Applied AI Institute. He returns to the Law Bytes podcast to talk about the TikTok bans, the state of Canadian policy in addressing the concerns, and why we may be heading for more geo-political battles over digital policy. 

Bill C-18, the Online News Act, has been at the centre of growing firestorm in Canada following reports that Google has begun testing the removal of links to Canadian news services for a small percentage of its users. The issue is headed to the Standing Committee on Canadian Heritage later today with MPs likely to take turns berating Google executives. If you’re just catching up or don’t understand what the fuss is about, this Law Bytes podcast is for you. While the government tries to spin the bill as a big win for media of all sizes without concerns for the Internet, the reality is far different. But you don’t have to take my word for it. This episode features clips of what Ministers, MPs, Senators, and government officials have already said at committee or in the Senate about the bill.

Last week was Fair Dealing Week, a chance for a wide range of Canadians - educators, students, librarians, archivists, and creators - to celebrate the important role that fair dealing plays in facilitating both fair access and fair compensation to copyrighted works. I ran a series of posts on Canadian education, fair dealing and copyright that will continue into the coming week. This podcast episode is part of that series featuring Stephen Spong, the director of the John and Dotsa Bitove law library and copyright officer at Western University. Spong used fair dealing week to write a piece that appeared in multiple press venues to lament what he termed “goblin mode gaslighting on copyright” and he joins the Law Bytes podcast to talk about fair dealing in practice and the ongoing policy debate.

Bill C-11 is in the hands of the government as Canadians await a decision on which Senate amendments it will accept, which might be rejected, and then how the Senate responds. A key question involves a fix to the regulation of user content provision, which provides that sound recordings are in, but user content is out. Senator Paula Simons, an independent Senator from Alberta nominated by Prime Minister Justin Trudeau to the Senate in 2018, co-crafted the compromise amendment and has been one of the most engaged and informed Senators throughout the Bill C-11 legislative process. She joins the Law Bytes podcast to discuss the hearings, her amendment, and what may lie ahead for both Bill C-11 and the upcoming Senate review of Bill C-18.

Many Canadians started the new year with an unwelcome surprise as they learned that Canada had extended the term of copyright by additional 20 years with no mitigation measures or efforts to limit the harmful effects of the policy. That the extension did not get much attention was seemingly by design as the government buried it in a budget implementation bill and posted no news releases on it. Mark Swartz is a Scholarly Publishing Librarian at Queen’s University and has been an active participant in copyright reform issues for many years. He joins the Law Bytes podcast to talk about Canada’s approach to copyright term extension, the impact on the public domain, and what could come next.

The House of Commons and Senate return from a lengthy break this week and will likely run until late June with the occasional week or two off. Digital policy may not attract top line attention, but it has emerged as one of the government’s most active issues. This week’s Law Bytes podcast provides a preview of the upcoming session, looking at what may lie ahead for issues such as telecom policy, privacy reform, Bills C-11 and C-18, copyright, and trade policy.

The battle over the Rogers – Shaw merger has continued to escalate in recent days with TekSavvy filing a complaint with the CRTC on the wholesale access implications of the deal, a campaign to urge ISED Minister François-Philippe Champagne to reject the transaction, and a forthcoming Industry committee hearing on the situation. The merger heads for what may be its final legal showdown this week as the Federal Court of Appeal conducts its hearing on the Competition Bureau’s appeal of a recent decision from the Competition Tribunal that rejected its opposition to the proposed merger. Jennifer Quaid is an Associate Professor and Vice-Dean Research in the Civil Law Section at the University of Ottawa, Faculty of Law. She joins me on the podcast to unpack the legal arguments in the case, provides her prognostication on a potential outcome at the Court of Appeal, and offers insights into potential future competition law reforms in Canada in light of a national consultation on the issue.

The start of a new year often means a fresh start and for the CRTC, it meant welcoming a new chair, as Vicky Eatrides officially took over as chair a few days into 2023. Eatrides comes to the Commission at a particularly busy time with wireless competition concerns top of mind for many Canadians and the government set to ask the Commission to play a pivotal role in implementing Bills C-11 and C-18. Konrad von Finckenstein is someone who knows quite a bit about the challenges faced by new CRTC chairs, having served in the role from 2007 to 2012. He was recently appointed to the Order of Canada for his many contributions to public life and he joins me on the podcast to reflect on those experiences in the context of the CRTC. Our conversation reflects on what is involved in launching entirely new programs, ensuring public engagement, and developing policies that enjoy both public support and can withstand potential legal challenges.

Canadian digital law and policy in 2022 was marked by legislative battles over Bills C-11 and C-18, the Rogers outage, stalled privacy and AI reform, copyright term extension, and a growing trade battle with the U.S. over Canadian policies. For this final Law Bytes podcast of 2022, I go solo without a guest to talk about the most significant trends and developments in Canadian digital policy from the past year and to think a bit about what may lie ahead in 2023. 

The government’s two big Internet bills - Bill C-11 and Bill C-18, both made significant advances late last week. The Senate Transport and Communications committee concluded months of hearings on Bill C-11 by agreeing to about 25 amendments, notably including a change to the scope of user content regulation that is designed to limit the application to sound recordings as well as the removal of a provision that critics feared would limit CRTC independence. Meanwhile in the House, Bill C-18 cleared the Canadian Heritage committee with changes that invite legal challenges and make a showdown over blocking news content increasingly likely. Just prior to these closing committee meetings, I appeared on TVO’s the Agenda with Steve Paikin to discuss the bills and why they matter. The interview elicited very positive feedback and with the kind permission of TVO and the Agenda, I’m pleased to provide the audio version of that interview as this week’s Law Bytes podcast.