#CyberFLASH: Why Navdeep Bains and Melanie Joly Are on a Collision Course on Digital Policy

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The Canadian chapter of the International Institute of Communications held their annual conference in Ottawa this week, headlined on Thursday by back-to-back appearances from Canadian Heritage Minister Melanie Joly (in a question and answer session with Jennifer Ditchburn) and Innovation, Science and Economic Development Minister Navdeep Bains.

Both ministers spoke primarily about their key policy initiative, namely digital cancon (Joly) and innovation (Bains). Joly’s cancon discussion again emphasized the benefits of exports and foreign investment, but she also indicated that all policies are still on the table, including an ISP tax and efforts to bring Internet companies such as Netflix “into the system.” Joly was followed by Bains, who used his speech to sketch out the foundation of his forthcoming innovation strategy. His focus included universal, affordable Internet access and telecom competition (which raises real doubts about whether the government will approve Bell’s proposed purchase of MTS).

Both ministers noted that their public consultations are ongoing, yet the reality is that sooner or later the government will have to make some policy choices. An export-led cancon strategy that focuses on foreign participation would mesh nicely with an innovation strategy that envisions similar benefits from embracing the digital environment. However, many of Joly’s comments and the pressures from some stakeholder groups point to the prospect of new Internet fees or regulations to support the domestic industry. Should that happen, it is increasingly likely that Bains and Joly will present dramatically different visions of Canada’s digital future with policy proposals that are fundamentally incompatible with one another.

The most obvious example involves the issue of universal, affordable Internet access which pits Bains’ vision of an innovative economy that has affordable Internet access as its foundation against Joly’s potential support for an ISP tax. The two policies tug in opposite directions as Bains is looking for ways to lower Internet costs and increase access, while an ISP tax would increase costs and reduce access.

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#CyberFLASH: Why the TPP is a Canadian Digital Policy Failure

23065912105_d47e1e8ba5_k-780x350The official release of the Trans Pacific Partnership (TPP), a global trade agreement between 12 countries including Canada, the United States, and Japan, has sparked a heated public debate over the merits of the deal. Leading the opposition is Research in Motion founder Jim Balsillie, who has described the TPP as one of Canada’s worst-ever policy moves that could cost the country billions of dollars.

My weekly technology law column (Toronto Star version, homepage version) notes that as Canadians assess the 6,000 page agreement, the implications for digital policies such as copyright and privacy should command considerable attention. On those fronts, the agreement appears to be a major failure. Canadian negotiators adopted a defensive strategy by seeking to maintain existing national laws and doing little to extend Canadian policies to other countries. The result is a deal that the U.S. has rightly promoted as “Made in America.” [a video of my recent talk on this issue can be found here].

In fact, even the attempts to preserve Canadian law were unsuccessful. The TPP will require several important changes to domestic copyright rules including an extension in the term of copyright that will keep works out of the public domain for an additional 20 years. New Zealand, which faces a similar requirement, has estimated that the extension alone will cost its economy NZ$55 million per year. The Canadian cost is undoubtedly far higher.

In addition to term extension, Canada is required to add new criminal provisions to its digital lock rules and to provide the U.S. with confidential reports every six months on efforts to stop the entry of counterfeit products into the country.

While these are all changes that reflect U.S. standards, there was little effort to promote some of Canada’s more innovative copyright policies in the agreement. The U.S. has allowed Canada to keep its “notice-and-notice” policy for Internet providers, but on the condition that no other TPP country may adopt it. Meanwhile, Canadian policies that promote user generated content, limit statutory damages, or establish consumer exceptions are all missing from TPP.

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