Julianna Yau’s blog

Not exactly what I was hoping for, but it was to be expected. Now to work on a letter regarding the budget cuts and the copyright bill. So much for keeping away from the politics of it all.

Dear Ms. Yau:

The Honourable Andrew Telegdi, your Member of Parliament, forwarded to me a copy of your e-mail of April 2, 2008, regarding net neutrality and your concern that Bell Canada is engaged in anti-competitive behaviour by controlling or “shaping” the traffic of independent Internet service providers (ISPs) that provide service through wholesale access to Bell’s digital subscriber line (DSL) network.

As Minister of Industry, I am responsible for the Telecommunications Act, which sets out the objectives of Canadian telecommunications policy. The Canadian Radio-television and Telecommunications Commission (CRTC), an independent public authority, is charged with implementing these objectives in its role as regulator of the telecommunications industry.

Canadian consumers can choose their ISP in a competitive marketplace, where prices are not regulated. Indeed, the competition between telephone and cable networks, as well as satellite, wireless and other players, has ensured that Canadians have a variety of choices, in terms of both price and quality, when selecting an ISP. Provisions in the Telecommunications Act and Competition Act ensure that the competitive marketplace operates effectively.

Under section 27 of the Telecommunications Act, the CRTC has the authority to address issues of unjust discrimination or undue preference in order to ensure that the marketplace operates fairly and effectively. If consumers feel that carriers are engaging in unjust discrimination or undue preference, complaints can be brought to the CRTC, where they are subject to a formal process. The recently created Commissioner for Complaints for Telecommunications Services (www.ccts-cprst.ca) has also strengthened consumer protection with regard to telecommunications, and was established precisely to address consumer complaints on deregulated telecommunications services, such as Internet access.

In addition to the measures available under the Telecommunications Act, the Competition Act carries the power to address anti-competitive behaviour by ISPs, including cases of abuse of dominance and misleading advertising. The Competition Bureau ensures that prices in all sectors of the economy, except those that are regulated, are set by market forces and are not the result of anti-competitive behaviour. Under the abuse of dominance provisions in the Competition Act, it is illegal for a dominant firm to engage in the practice of anti-competitive acts resulting in a substantial lessening of competition, including disciplining or targeting competitors in order to raise prices or reduce customer choice.

As you may know, the Canadian Association of Internet Providers (CAIP) has filed a complaint with the CRTC regarding Bell’s traffic management practices. While I cannot comment on specific matters before the CRTC, please note that the Commission regulates wholesale access by independent ISPs to high-speed Internet access services from both telephone and cable companies. Under the CRTC’s regulatory framework for wholesale services, Bell is required to provide access to its DSL network to independent ISPs at regulated rates and terms of service. If the CRTC finds Bell or any other network operator to be in violation of these terms or otherwise engaging in unjust discrimination or undue preference, the CRTC has the power to address these issues under the Telecommunications Act.

Access to the Internet is a key issue for Canadians. Industry Canada is monitoring domestic and international developments to ensure that our legislative and regulatory frameworks remain effective. Should you believe carriers are engaging in unjust discrimination and undue preference, I encourage you to contact the CRTC at 1-877-249-2782 or by e-mail at info@crtc.gc.ca. Please note that, on May 15, 2008, the CRTC set out a process to address the issues raised in CAIP’s above-noted application. Further details regarding this application and the CRTC’s recently announced process to look into the matter can be found on its website at www.crtc.gc.ca.

Once again, thank you for taking the time to write, and I trust that you will find this information helpful.

Sincerely,

The Honourable Jim Prentice, P.C., Q.C., M.P.

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My studio is very close to completion, and I’m struggling to catch up on my emails and blogs. Here are some things that have been sitting around for weeks (with, according to Google Reader, 1000+ posts to be read):

Conferences

• Presentations from the conference on Education, Culture and the Knowledge Economy are available online (my notes are still sitting on my EeePC)
• Session materials from the Technology in the Arts Conference are also available (my notes here)

Copyright - Canada

• Not all sides are represented in debate on copyright bill
• Canadian Coalition for Electronic Rights Letter Wizard for C-61 Updated To Include Hardcopies & Personalization, plus their summary of media reactions
• CBC’s Search Engine Copyright Quiz: “what if I ________: is that illegal?”

Orphan Works bill in the US

• The Art Newspaper on the Orphan Works bill
• Counterfeit Chic on the Orphan Works bill

C-10

• Alberta considers tax credits for film production

• Arts subsidies ­– Why do we need them?

Tech

• NDP calls for net neutrality

• Bill C-555

Tags: art, c-10, conferences, copyright, net neutrality, orphan works

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It’s been a while since I’ve posted a real entry to this blog because I’ve been busy with my studio open house. Now that I have better studio space, I’ll be re-evaluating how much time I’m spending on this blog. Celebrate Our Artists’ Weekend is just around the corner, and I have some other things on the go too.

Here are some links (some of which are old in blog time) to things which have been happening while I’ve been running around with studio stuff. There’s more to come, because I have 168 unread blog posts!

Art

• “Spring Cleaning” Parliamentary Update from the Canada Conference for the Arts
• From zero to $22.5-million in 2 years
• Flood shuts Canada’s national archives

C-10

• No guidelines could fix bill C-10 film clause: Cronenberg
• MPs, including Tories, sign up to view controversial sex comedy

Copyright

• John Degen on copyright in the Globe & Mail, and his afterthoughts
• Lessig on the orphan works bill in the US
• Louis Vuitton sues art student over Darfur design
• No quick fix in negotiations: actors union to members
• Denver Gingerich wants to know whether anyone attended the Copyright in Canada conference who can share information about it

Net Neutrality

• Internet protesters to descend on Ottawa
• NDP to introduce ‘net neutrality’ private member’s bill

And just for fun, here’s a story of how Dell is competing with Sony not only for market share but severity of PR fiascoes.

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Last month (April 2nd, to be exact), I send a form letter to my MP on C-10 Net Neutrality. I typically try to write a letter personally, but I just haven’t been able to find the time for that recently.

Here’s what I sent:

Honourable Andrew Telegdi:

I am deeply concerned about Bell Canada’s recent announcement that it will make its practice of throttling official starting April 7.

Canada does not have strict enforceable net neutrality legislation and so there is very little structure in place to prevent the big ISPs from discriminating by speeding up or slowing down Web content based on its source, ownership or destination.

I am outraged that Canada does not have a policy to protect my ability to communicate and access information freely on the Internet and urge you to take action on this matter immediately.

Sincerely,

Julianna Yau

And here’s the response I received today:

Dear Julianna Yau,

Thank you for your email regarding net neutrality. The issues you have raised are both valid and timely.

The internet is currently unregulated in Canada. Given the fluid and evolutionary nature of the internet, it is extremely difficult to develop effective measures to protect both consumer and internet provider. With that being said, the Canadian Radio-television and Telecommunications Commission (CRTC), is mandated to regulate the internet. Last year, the CRTC announced that it will be holding hearings concerning internet regulations by 2009.

In 2006, the Conservative government advised the CRTC that it should adopt a more hands-off approach and let market forces determine the telecommunications landscape as much as possible. This approach does not afford proper recognition to the rights of Canadian internet users, and has resulted in the problems we are beginning to see now in terms of internet providers’ practice of throttling internet connections.

I have forwarded your email to the Hon. Jim Prentice, Minister of Industry, so that your concerns can be properly addressed.

Thank you again for your correspondence.

Sincerely,
Katherine Preiss
Member’s Assistant
Hon. Andrew Telegdi P.C., M.P.
Kitchener-Waterloo

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In the past two days, much discussion on the responsibilities of ISPs (Internet Service Providers, such as Rogers or Bell) has landed in my inbox or feed reader. This includes:

• The CCC’s platform on copyright
• A letter to the CCC from a member of ACTRA
• The Globe & Mail’s poll on whether ISPs should take a greater role in combating illegal file sharing
• Northworthy’s 2 cents

What really did get me was the poll on the G&M website. I have mostly been thinking about the ISP’s role in combating copyright infringement from the perspective that they are in the most advantageous position to do anything (and, of course, keeping in mind the problems of net neutrality, privacy and copyright holder abuse). But the question of whether it is in fact an ISP’s responsibility to do anything has, surprisingly, never crossed my mind. And if it isn’t their responsibility, where does the responsibility lie? To find out, let’s start by looking at who the players are:

• ISPs (Internet Service Providers; they provide end users with access to the internet; the internet is where the possibly infringing content is contained)
• website hosts (companies which allow persons to store content on servers; the servers may belong to the website host or to a third party; by being on those servers, the content is accessible on the internet)
• websites hosting user-generated content (sites such as YouTube, MySpace, Facebook, any discussion forums, etc, where the majority of the content is submitted by the users rather than the company running the website)
• users (the individual persons who access the internet and provide possibly infringing content; users can provide and access content either through a website or directly through their computer)
• software designers/companies (the entities which create the necessary software for computers to interact with each other and with servers; examples of relevant software are website browsers, software to facilitate peer-to-peer networking, and “webware“)
• hardware manufacturers (makes the computers used to go online and the servers where internet content is usually housed)
• copyright holder (the first copyright holders of content; often, but not always, this is the creator)

And how they play together:

Scenario 1 - User accesses content

1. User gets internet access through ISP
2. User gets software to put onto their hardware so that they can access the content on the internet
3. User accesses internet and obtains content, which could potentially have been provided to the user without permission of the copyright holder; or
   User deliberately seeks to obtain content without the permission of the copyright holder (usually, this happens by obtaining the content without payment; however, content is increasingly being provided without requirement of payment)

Scenario 2 - User only provides content

1. User gets internet access through ISP
2. User gets software to put onto their hardware so that they can provide content on the internet. This content may either be their own, or be provided without the permission of the copyright owner.
3. Content provided by the user is accessed by other users.

This is where we get into issues with the concept of “making available“. The argument is that the entity responsible for making something available is responsible for the copyright infringement; the counter-argument is that the content being made available could be used for legitimate purposes (primarily, anything falling under fair dealing). The problem with the counter-argument is that it is addressing an issue which is not related to the primary act of infringement in the act of making available.

A few weeks ago, I spoke with a colleague and friend about the concept of making available. After some discussion, we came to the very simple agreement that someone who makes a work available to the public without the permission of the copyright holder is infringing copyright…because they are publishing (making public; making available) something to which they do not have publishing rights. Someone who photocopies an entire book or reproduces artwork or duplicates software, without the copyright holder’s permission, and makes it publicly available is infringing copyright regardless of whether anyone takes the copied work or whether money is exchanged. Again, this is because that person did not have the right to copy the work. The problem of the accessibility of a work for fair dealing is an entirely valid one, but should not be solved by diluting the concept of the right to copy.

We also have to draw a distinction between the responsibility of infringement and the responsibility of policing. In most discussions where the ISPs, website hosts, software designers and/or websites hosting user-generate content have been nominated to police copyright infringement, the argument has mainly focused on the idea that they are an accessory to copyright infringement because they facilitate the transmission of content. I believe that this kind of thinking is one which is part of the administration/practice of law, and not unique to copyright law itself. The problem, in this case, is that this foursome is the easiest target for being asked to police copyright infringement on the internet because they are often seen as having mythical powers (and sometimes less mythical powers). While I think it is technically possible for that them to do the policing, I am now wondering whether that is the right decision, even without considering complications such as net neutrality, privacy issues and the mind-boggling question of how this can be implemented.

If we can agree that the goal is to prevent unauthorized distribution of works, and that the source of the unauthorized distribution is at the level of user, what needs to be done to stop that from happening, without resorting to technical protection measures? To answer that, I think we need to find out why people who do not have the right to distribute copies either are unaware that they don’t have that right or why they feel they do have that right.

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