Four Questions for Michael Geist
Michael Geist has a lot of letters after his name. Some of them include: “LL.B,” “LL.M,” and “J.S.D,” and all of those mean he’s a pretty sharp guy. In particular, he’s a sharp guy when it comes to technology law: he writes a weekly column that appears in the Toronto Star and Ottawa Citizen; he holds the Canada Research Chair in Internet and E-Commerce at the University of Ottawa; he’s been called one of the 50 most influential people on intellectual property in the world. And he knows Internet regulation.
After the Internet effectively turned itself off on 18 January, 2012, a lot of people – millions of them, in fact – took action. In his column that week, Geist pointed out that more people read Wikipedia’s blackout page than watched the Superbowl. But it didn’t stop there: millions went on to sign online petitions and to look up the contact information of their elected representatives. In short, the protest moved people.
We want to find out what will happen next, so we asked four questions to the man who might know. Geist got technical about the details of two of Canada’s most controversial bits of legislation and about the role of academics in shaping policy.
Thought Out Loud: You’re an academic in a relatively new discipline and you maintain a very visible public profile through your blog, newspaper columns, and numerous television appearances. Given the importance that Internet law, digital copyright, and online privacy issues play in everyday life, it seems that academia is lagging behind technology. Is it more difficult for academics in your field to have meaningful input on legislative matters than it is for academics in a more robust, traditional field of study?
Michael Geist: It is always a challenge to influence public policy, particularly on issues such as copyright, telecom, and privacy, which tend to involve many stakeholders and firmly held views from across the spectrum. That said, I think it is easier for academics in the field to provide meaningful input. First, new issues and a lack of comfort with the technology often mean that policy makers are looking for independent assistance and perspectives. Second, many academics in the field are more comfortable adopting new techniques to disseminate their work – blogs, op-eds, social media all help to raise public awareness and potentially influence the policy process. Third, because it is a new field, there is an opportunity for newer entrants that might not exist in more established disciplines.
TOL: In your 22 January column in the Toronto Star, you stated that the online SOPA protest could only be considered a “stunning” success. We agree. Looking beyond SOPA, what do you see as the long-term effect of the Internet collective flexing its muscle on this issue? Will the protests change how legislators approach digital copyright reform?
MG: I think we are already seeing the reverberations from SOPA. In Europe, the enormous public protests against the Anti-Counterfeiting Trade Agreement (ACTA) – tens of thousands having taken to the streets in recent months – was clearly emboldened by the success countering SOPA. Similarly in Canada, we’ve seen a strong outcry against elements of Bill C-11 (the copyright reform bill) and against Bill C-30 (the online surveillance legislation).
The big question is whether this will result in different policies. I think the answer will ultimately be yes, but the jury is definitely still out. In Canada, the government has shifted on copyright since its 2007 proposals and some of that may be due to the public outcry. However, it has been unwilling to compromise on the most controversial part of the bill, the digital lock rules, which have generated significant opposition. In Europe, the protests have definitely stalled ACTA implementation by up to two years, but we don’t yet it if it is dead or delayed.
TOL: The SOPA protest brought digital copyright and online piracy reform to the forefront of public consciousness in short order. For many of us it has been a steep learning curve in a short period of time. We assume that any comprehensive digital copyright legislation needs to be complex and nuanced in ways that, so far, haven’t been adequately considered at the Parliamentary level. What would Prime Minister Geist’s copyright reform bill look like?
MG: I’ve written a lot about what I’d like to see in a copyright bill. The reality is that Bill C-11 includes many provisions worth supporting. I would definitely keep the Internet provider liability rules, the changes to statutory damages, and the new consumer exceptions. Three of the most controversial issues are digital locks, fair dealing, and a provision on user generated content.
On digital locks, the law should be clarified that it is only a violation to circumvent a digital lock where the underlying purpose is to infringe copyright. This would provide rights holders with the legal protections they are seeking, while ensuring that users rights are not lost anytime a digital lock is present.
On fair dealing, there have been inaccurate claims that that the addition of education as a fair dealing category will permit rampant, uncompensated copying. Codifying the Supreme Court of Canada’s six-part fairness test within the Copyright Act should alleviate those concerns by adding certainty to the change.
On the user generated content provision, some stakeholders have expressed concern that the provision could harm creators’ commercial exploitation of their works. Moving the provision within the Copyright Act’s fair dealing rules would establish a second layer of analysis that would require any mash-up to meet both the fairness analysis and the non-commercial criteria.
TOL: You are one of the more vocal critics of Bill C-30, an act that would give police the power to demand personal information from ISPs without a warrant. The bill, titled the Protecting Children From Internet Predators Act, has raised considerable popular opposition due to the vague language that outlines when police would be able to make a request for this information, and general unease at the potential for abuse that could result from this legislation. Where do you draw the line in terms of balancing the need for law enforcement to have access to information about bad guys versus ensuring that law-abiding citizens’ privacy is protected to the greatest extent possible?
MG: The biggest concern to date with Bill C-30 is the disclosure of Internet provider customer information without court oversight. Under current privacy laws, providers may voluntarily disclose customer information but are not required to do so. The new system would require the disclosure of customer name, address, phone number, email and Internet protocol addresses.
This strikes at a bedrock principle of privacy law and is rightly opposed by the privacy and civil society community. Yet in talking with law enforcement, it is clear what they want is timely, guaranteed access in appropriate circumstances. They argue the current warrant system does not meet this standard nor do the current privacy rules. I have argued that a new warrant specific to subscriber information could be developed. Such a warrant could offer rapid authorization and lower costs. For law enforcement, it would provide the access they want, while for privacy advocates it would maintain the oversight principle.