York University Indoctrinates Rick Mercer In Law After Misleading Public on Copyright Law

October 16, 2014 Leave a comment

The night after Rick Mercer’s copyright rant aired in which he mislead the public in copyright law, York University felt fit to present Mercer with an Honorary Doctorate in Law.

Copyright Lawyer Howard Knopf last night put out a no holds barred blog on Mercer’s rant, and the need for the Competition Bureau to further investigate the “consortium’s” efforts as it pertains to law.  I don’t know how a University can indoctrinate someone who looks to be seriously involved in an effort to mislead the public on the law of that land at this point.  That looks very bad on an institution of education and learning, who also relies on fair dealing laws on a regular basis.  The timing seems very suspicious to me, and I just hope that the University is not part of a wider effort that would call the institutions independence into question.

In my view, Mercer’s Doctorate should be put on hold or stripped by York U until he corrects his points in law publicly to the nation.  I’m pretty sure the legal community itself will be weighing in on that in due time.

Rick Mercer: Not Informed or Copyright Troll?

October 15, 2014 1 comment

The answer to the above question may play out in the next few days.  Last night Rick Mercer ranted (more felt like a lecture from my parents) on the issue of copyright.  As many of you may know, I used Rick Mercer as an example of why fair dealing is necessary in my blog post last week.  It appears the answer to the question I posed last week: “Is Canada’s Broadcast Media Consortium Using Attack Ad Scandal to Push Copyright Political Agenda?” is in fact YES!  Mercer has come out with a video strongly suggesting that we should scrap the fair dealing clauses all together:


From Howard Knopf, to Michael Geist, to Ariel Katz, to Dwayne Winseck and Openmedia (who just released their report calling for expanding fair use provisions), disagree with Rick Mercer’s take/position on fair dealing and have commented on the attack ad issue publicly. These are the experts!

A big online debate is about to happen regarding the nations copyright policies, instigated by what I believe to be the big media industry lobbyists from CBC, CTV, Global, Rogers, Bell (copyright extremists or terrorists take your pick, both fit but I like copyright troll the best since nothing has been about attack ads with this group from CBC, CTV, Bell, Rogers, it’s about getting paid) who are holding our newsrooms, journalists and Rick Mercer hostage at the moment, ahead of an election.  Big media hates fair dealing!  The next few days are going to be interesting.

This blog will be following and participating in those debates, so don’t forget to subscribe if you are interested in following this.

More to come…

Conservatives Propose to “Amend” Fair Dealing Not Replace It

October 14, 2014 3 comments

Over the weekend, I’ve had some time to look at the fine print of the “leaked” Conservative Cabinet document of the Conservatives plans to introduce new copyright laws to allow them to legally use news content for political advertising.  Some have strongly suggested that these new plans will allow more privileges to politicians than the public over fair use laws and free speech.  A closer examination of the documents reveal the Conservatives plan to amend (or add to) the copyright act, not replace the fair dealing clauses that apply to the public.  From the very last sentence in the Cabinet proposal on the fair dealing amendment proposal:

“If supported, the amendment would be incorporated into the budget implementation act and enter into force upon Royal Assent”

In the House of Commons last week, Heritage Minister Shelly Glover stated:

“We believe that (using news clips for advertising) has always been protected under the fair dealing provision of the law and if greater certainty is necessary, we will provide it.”

The reasoning for this amendment by the Conservatives to clarify the law, comes as the party is under threat from the big media companies that they would not comply with existing fair dealing legislation that applies to the public, and politicians.

The Conservatives could have done a better job communicating this to the public.  They could have stated the amendment was to the copyright act, not the budget implementation bill.  However Cabinet documents linked to above were leaked internal cabinet documents.  I don’t think they were expecting these to become public, and most likely part of a conversation around how to deal with a threat from the media companies on not complying with fair use, which is a much bigger threat to civil liberties and free speech in this country ahead of an election, than communication missteps from the Conservative Cabinet on this.

Internal CBC documents from the middle of March this year also suggest that the media consortium very well knew how fair dealing worked in this case:

Bzl-i6xCIAA8Wih.png large

Yet the consortium went to air with the notion that the Conservatives were “stealing” (implicating an illegal act) news content, when they knew under law that wasn’t the case.  The public was purposely mislead on the law by the media, using public discourse around attack ads as cover.  That’s a much more serious issue that needs to be addressed ahead of an election where the electorate will be very cautious around what the law is in the next election due to the robocalls scandal.  If we don’t have media acting independent of bias when it comes to reporting on the law in the next election, it will not be a free or fair vote, which is one of the reasons why I’m complaining about the way this has been reported to the public.  I say this as someone who often criticizes policies on this blog as it relates to copyright and civil liberties, and with no political bias.

Ariel Katz Associate Professor at the Faculty of Law, University of Toronto, who also holds the Innovation Chair in Electronic Commerce, produced an excellent blog this morning on how the media consortium might also be infringing on the competition act:

The Government’s proposal—a proposal that seems to be unnecessary and misguided at once—might have been prompted by an agreement between the major electronic media organizations not to broadcast political ads that contain audio or video content appearing to come from news services owned by CBC/Radio Canada, CTV/Bellmedia, Global/Shaw, or City/Rogers. If what those documents appear to reveal is true, then the document that those documents reveal might be an illegal one, contrary to section 45 of the Competition Act. Thus, a story that broke as a minor (albeit important) news item about copyright reform, may turn out to be a much bigger story about possible violation of the Competition Act by Canada’s major media outlets.

Katz also went on to state (emphasis added):

Attack ads may be distasteful, or even according to some views harmful to the political process, but they are not illegal. Likewise, using excerpts of content from their own programs may be annoying for some broadcasters, but as even some of the broadcasters’ legal advisers agree, the Copyright Act does not prohibit that. If the broadcasters aren’t happy with this state of the law it is open to them to convince Parliament to change the law (within the bounds permissible for such limitation on freedom of expression that the Charter of Rights and Freedoms would permit). Or, better still, they can fight the speech that they don’t like with their own better speech; after all, unlike most Canadian, they have unfettered access to the media—they are the media. What they cannot and should not do is enter into agreements that allows them, by virtue of their control of the most important media outlets, bypass the political process, impose their own wishes, and make their own wishes effectively the law of the land.

My Canadian Broadcast Standards Council Complaint on Media Consortium

October 11, 2014 2 comments

I’m an independent blogger with post-secondary education in Broadcast News from one of CTV’s root schools.  I hold no political affiliation, nor do I belong to any lobby group, or work for/affiliated with any private or public interest group.

On October 8th, CTV broke a story regarding the use of news material in Conservatives attack ads on CTV National News.  On October the 9th, CTV and its affiliates throughout the day ran the follow up to the story, in which many experts disagreed with the original news story that Conservative Attack Ads are stealing content from news agencies. Michael Geist, Dwayne Winseck, Howard Knopf were all interviewed by CTV News Channel on October 9th. These people are a group of media/copyright law experts. During CTV National News, on October 9th, 2014 at approx. 10:08pm EST on CTV News Channel (syndicated throughout the nation at different times), CTV followed up on the story however did not run any opposing views to the narrative that using news content in political attack ads is stealing, to which under fair use provisions in law is not.  In fact the CTV National News Director opted for interviews that using news content for political ads under these circumstances is wrong, when the experts were on record all day in CTV’s newsrooms explaining that it wasn’t.  The news team at CTV National News had ample content canned with opposing views which the news director at CTV National News opted not to use.

https://twitter.com/jkoblovsky/status/520983159429922817

Further documentation obtained through access to information reveals CTV executives (among others involved), concluded that under the fair use provisions of copyright law, using news content for the purposes of political advertising was not wrong under the law, yet CTV who broke the story choose a different narrative (See CTV National News Cast lead story on October 8th, 2014), all while knowing what the law stated around fair dealing, which was utterly misrepresented by CTV.

https://www.scribd.com/doc/242562324/CBC-Political-Ads-ATIP

From what the experts have said, and from the documentation provided, CTV National News has intentionally mislead the public on a matter of policy and law due to what can only be described as self-interest from the CTV National news team.

http://jkoblovsky.wordpress.com/2014/10/10/is-canadas-broadcast-media-consortium-using-attack-ad-scandal-to-push-copyright-political-agenda/

This puts into question journalistic independence on public policy which the CBSC is responsible to investigate, among other agencies.   I would ask that in addition to CTV’s involvement, that the CBSC also follow up on the initial reporting from CBC, Global, Rogers affiliates on this story that aired between October 8th – 9th 2014.  Documentation provided through access to information of these stations executives and news anchors around fair use, paint a very different picture around what they knew of fair use, and what was reported.  Please follow up on this complaint, and provide a detailed investigation on this matter, and how the CBSC plans to rectify the matter within law.

Categories: cdnpoli, Copryight, CRTC, Politics Tags: , , , ,

Is Canada’s Broadcast Media Consortium Using Attack Ad Scandal to Push Copyright Political Agenda?

October 10, 2014 2 comments

Over the past few days the broadcast airwaves have been filled with stories relating to proposed changes the Conservatives want to make to the copyright law to allow them to use news clips in their political advertising without permission or compensation. Like many Canadians, I find attack ads distasteful, despicable, and a disgusting way of doing politics.  However like everyone in Canada political parties should be free to criticize political figures.  Criticism of political ideology is a very healthy exercise for democracy, even if you don’t agree with how it’s done, or what’s being said.

During my time in the copyright debates in 2009, the one thing I learned is that big media companies hate a piece of law in the Copyright Act called “Fair Dealing” which explicitly exempts copyright owners from being compensated under certain circumstances.  This is to protect free speech, education, political satire, research, and criticism from being controlled by rights holders.  Big media hates this provision because quite simply their not getting paid for their works.  The way CTV,  journalists, and opposition MPs are reporting this to the Canadian public is that the Conservatives would steal news content, and not pay for it.

Section 29, of Canada’s Copyright Act deals with the fair dealing exemptions (in which criticism is fully covered emphasis added):

29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

R.S., 1985, c. C-42, s. 29;
R.S., 1985, c. 10 (4th Supp.), s. 7;
1994, c. 47, s. 61;
1997, c. 24, s. 18;
2012, c. 20, s. 21.

Previous Version
Marginal note:Criticism or review

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:

(a) the source; and

(b) if given in the source, the name of the

(i) author, in the case of a work,

(ii) performer, in the case of a performer’s performance,

(iii) maker, in the case of a sound recording, or

(iv) broadcaster, in the case of a communication signal.

1997, c. 24, s. 18.

Marginal note:News reporting

29.2 Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned:

(a) the source; and

(b) if given in the source, the name of the

(i) author, in the case of a work,

(ii) performer, in the case of a performer’s performance,

(iii) maker, in the case of a sound recording, or

(iv) broadcaster, in the case of a communication signal.

1997, c. 24, s. 18.

I’ve quoted the fair dealing exemptions in full, because it’s important that Canadians know where the law lies on this.  Fair dealing is necessary to allow blogs like this to continue to criticize public policy without being taken down on copyright laws.  It allows journalists to report on the news, and it also allows Rick Mercer to suggest that the speaker of the house should be replaced by a bag of flour. The interesting question would be, if fair dealing already states that for the use of criticism no compensation or permission is needed to use the copyright protected works, why are the Conservatives introducing amendments to the copyright act to allow what’s already allowed, and why are the news agencies all pissed off about this.  It all comes down to the mighty dollar for the media companies.

The narrative that the Conservatives are stealing news content (which many of the journalists are using to describe legal fair use of their works) strongly suggests Canada’s Broadcast Media Consortium has issues with fair dealing uses of their works, not just by the Conservatives however; this could also extend to blogs, and other online media such as their works being used by youtube commentators and so forth. Canada’s Broadcast Media Consortium sent a letter to the Conservatives back in May demanding authorization (that essentially means they pay for the use of their copyright protected material) or they would not air the content (which under several laws, notwithstanding fair dealing, and election laws is illegal).

From here the Conservatives set out to clarify the law by sneaking in an amendment to the copyright act due to this threat from the Media Consortium who is not co-operating with fair dealing laws, specifically to allow political parties full access under fair dealing.  The problem is the Conservatives are well known for sneaking in unrelated stuff into their budget bills, and have a track record of being pig headed and dishonest about their intentions, to which the media (especially CTV) are playing up big time because they want people to pay for any use of their works, and seemingly disagree with the fair dealing clauses currently in law by the way they are framing this.  CTV News Channel had a large number of experts throughout the day yesterday that explicitly disagreed with the stations views on fair dealing.  During the nightly CTV’s National News cast, not one of those interviews made it to air.

There is an excellent interview with copyright lawyer Howard Knopf on the current situation as it relates to current law, and another good explanation of fair dealing. Also the fact that we have defamation laws that cover inaccurate and defamatory reporting when it comes to taking comments out of context.  If Canada’s Broadcast Media Consortium pushes this into court, they will have a very huge hill to climb, considering the Supreme Court has ruled on fair dealing cases 6 times  three times in recent years, so there’s a lot of precedents and case law moving forward that isn’t in the Consortium’s favor.

What’s also troubling is the political position of the Liberals on fair dealing.  Ralph Goodale stood up in the house of commons during question period yesterday and essentially repeated the fact that fair dealing is stealing.  Is the official position of the Liberal Party of Canada that fair dealing needs to be scrapped entirely?  That would kill free press/free speech in this country.

Like many Canadians I’m fed up with Conservative attack ads.  Rather than taking the approach to attack fair dealing in copyright law needed for among other things a free press, and free speech; why not introduce legislation or commit to a platform to deal with the decorum in Canadian politics?  That would be the grown up thing to do.  Unfortunately we’re going to be stuck with Conservative attack ads in the next election. The media consortium will back down, because legally it would be the battle of their life time with several precedents moving forward in favor of the Conservative’s position on fair dealing.  What we can do as Canadians, is vote.  If you don’t like attack ads, than don’t vote for the attacking party.  Plain and simple.

As far as journalistic integrity goes,  it’s not attack ads journalists have to worry about. It’s attacking the very principles within copyright law that allow for free press and free speech that does the most damage to a journalists reputation. This is coming from someone who received his broadcast journalism eduction at Niagara College in the 90’s which back then was the root school for CTV!  I got to know a lot of the CTV executives during my education there, and not one of them would have ever tolerated such bias around reporting like I’ve seen from CTV on this issue over the past few days.  In fact, if we had presented bias in our news reporting we would have been failed and kicked out of the course.  I’ll tell you this, I have a lot of thinking to do on exactly who I trust for political commentary after this story.  It puts questions on how independent our free press is, especially when commenting on important public policy such as copyright.  That’s way more disturbing to me than attack ads which I don’t pay attention too in the first place.

UPDATE: Another excellent post by copyright lawyer Howard Knopf on the fact that media themselves are now starting to become part of the story, with documentation accessed through access to information.  The documentation seems to suggest a planned political attack against the Conservatives by our major media news outlets, coordinated by CBC; all the while knowing their position on copyright and attack ads was very weak legally.

See also:

Conservatives Propose to “Amend” Fair Dealing Not Replace It

My Canadian Broadcast Standards Council Complaint on Media Consortium

Future Tech Friday: A Generation of Idiots, Smart Phones, and Dumb People

September 26, 2014 Leave a comment

For this this installment of Future Tech Friday, I’d thought I’d return to humanity.  Out of my years online, this has to be one of the best creative productions I’ve ever seen.   In a world of technology, it’s important to take a pause.

 

Categories: Future Tech

CRTC vs Netflix: The Fight For Survival Is On

September 24, 2014 Leave a comment

The regulatory process in telecom and broadcasting in Canada is badly broken, and under the new chairman Jean-Pierre Blais it’s very existence as a regulator is about to be put into question by new media companies. From allowing companies like Bell and Rogers to get away with internet throttling for years with no recourse, to excessively high phone bills, and now Blais has picked a fight with Netflix over his assumption that new media companies are regulated under a public mandate in which the not only the Government doesn’t agree with, but companies like Facebook, and Google are surely to take exception too as well as future media distributors.

There is a very interesting presentation about the future of telecom from a market analyst I’ve come to trust over the years when it comes to media. His name is Gerd Leonhard. Below is an embedded talk on the future of telecom to ITC leaders in the EU.

What’s about to take place in media is another technological disruption in content distribution channels. It happened over music, and it’s starting to happen in video content as well.  Over the next few years Africa and the Middle East will be wired up fully with satellite wifi, bringing about 3 billion more users to the net. In these places cell phones dominate and the net will be the medium of choice to consume media. As a result, there is going to be a huge demand on what is known in the policy trenches as “over the top media” (in which Leonhard explains in detail how this currently affects telecom providers in the above embedded video), or in more English related terms “internet broadcasting” services like Netflix.

The next evolution in content distribution will be in the form of social media. Social media companies mine your information on your social media profile to sell you advertising on that site. As a result Google and Facebook will be getting into content distribution within the next 5 years to not only service the needs of the 3 billion coming online in the near future with media, but also to fulfill a market need in media advertising which would be more targeted ads over content through social media. What this will essentially do is set up an entirely new global content distribution network.  This change (due to the needs of the new 3 billion internet users) will be quite rapid.

Telecom companies in Canada currently have an artificial monopoly on Canadian content distribution rights, in which the suppliers of that content will be looking towards the social media distribution channels as more lucrative compared to traditional over the air distribution networks through Rogers, Bell etc. As a result these big telecom companies stand to loose a ton of money, and will have to reinvent themselves, or at least try to minimize the damage.  This technological change will completely disrupt telecom business models in Canada.

For a long time on this blog, I’ve been quite strong on privacy issues regarding all telecom providers on your private information.  The reason being is that telecom providers hold a lot of personal information on websites visited etc.  Social media, is a gold mine of information, but Internet marketers know it’s not completely accurate.  The information from your telecom provider is more accurate regarding the profiling of their users.  With social media gaining content distribution and stealing it from the telecom providers; the next logical step in market and business transition would be the sale of your information at the telecom provider level, with investors hungry for accurate analytics.

Last week the CRTC got into a spitting match with Netflix over it’s subscribers data. All broadcasters in Canada are required to hand over their “ratings” information to the CRTC. Netflix doesn’t provide this information publicly, and refused to give this info to the CRTC. The CRTC then came up with an implied threat of regulating Netflix if it didn’t cough up that info.  Who regulates the disclosure of your private info collected by online broadcasters is the current question before the Canadian public and government, and it’s a big one since it will impact how your information is handled in the future by telecom, online broadcasters and how will the flow of our personal online data be monitored, and by whom?  In my opinion the CRTC is not mandated to handle this information.  It flows through the Privacy Commissioner, which pretty much puts the CRTC in a very tight corner in the near future regarding it’s ability to regulate anything.

The one thing to be optimistic about is that our regulator and our telecom industries are about to be kicked in the pants by companies that out pace Rogers/Bell by a large margin.  If the CRTC moves forward on pushing Netflix, Rogers/Bell/CRTC will not be controlling that conversation.  That’s going to be interesting.  If I were Bell/Rogers or other creative unions, I’d be very careful what you wish for right now.

To Be Continued….

UPDATE: September 29th, 2014 -> The CRTC has backed down from the Netflix spitting match.  Wise move considering the above info. Worthy to note that the CRTC still thinks it has regulatory power over internet content, it will now not enforce, however even backing down from this public spitting match has significantly weakened that presumption. It would have to be legislated in, and I don’t think any government would be willing to do this considering the power of Google and Facebook.

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