Re: Consumer Protection Airline Passengers

PIAC Letter to The Honourable Jean Lapierre, Minister of Transport, Re: Consumer Protection B Airline Passengers

The Honourable Jean Lapierre (613) 995-0327
Minister of Transport
Place de Ville, Tower C
330 Sparks Street
Ottawa, ON
K1A 0N5
Dear Mr. Lapierre:
Re: Consumer Protection B Airline Passengers
The Canadian Association of Airline Passengers (CAAP) is a coalition of Canadian public interest and consumer organizations who are active in transportation issues associated with airline travel in Canada. The coalition was formed in 1999 to assist in providing the public interest perspective in the resolution of issues associated with the merger of Air Canada and Canadian Airlines. The membership of the organization includes the following organizations:
Air Passenger Safety Group
Canadian Federation of Students
Consumers Association of Canada Saskatchewan
Manitoba Society of Seniors
Ontario Society of Senior Citizens= Organizations
Option Consommateurs
Public Interest Advocacy Centre
Rural Dignity of Canada
Transport 2000
We believe that the there are serious deficiencies in the current regulation of the airline industry in Canada, some of which have been brought to light by the Jetsgo failure and the subsequent impact upon passengers of that airline. We believe that there is a continuing need for the kinds of consumer protection standards associated with the Canadian Airline Passenger Bill of Rights within the carrier license framework, a position that we have previously urged upon your ministry. We are writing today on behalf of CAAP to recommend some immediate and pressing problems
be addressed.

  1. Licensed carriers must conform to advertising standards currently in place in Ontario and Quebec that promote transparency by ensuring full disclosure of all fees, surcharges etc. so that a final all-in ticket price is apparent. The questionable promotion tactics of advertising one price and assessing a far different one to the enticed consumer is a practice that is incompatible with reasonable airline operation and must be stopped.
  2. Licensed carriers must be part of a self-insurance scheme similar to those in operation for travel suppliers in British Columbia, Ontario and Quebec. This may require the adoption and maintenance of more rigorous financial fitness rules for carriers. However, it is unreasonable to visit upon other industry stakeholders, such as travel agents in the aforementioned provinces, or jilted passengers, the financial effects of carrier failure where such stakeholders may not be in a position to know the financial circumstances of the carrier prior to a transaction.
  3. The office of the Airline Complaints Commissioner must be immediately reinstated. There is no evidence that the need for the Commissioner’s office has diminished: indeed, if anything there is evidence that there is likely a need to strengthen the Commissioner’s powers beyond publicity and persuasion. We are not aware of any effort on the part of Transport Canada or the Canadian Transportation Agency to consult with consumer and public interest stakeholders prior to the cancellation announcement. The suggestion that market forces can now deal with the problems formerly handled by the Commissioner lacks a basis in reality.

We are increasingly concerned that the actions of your department are exclusively supplier driven. Experience in this, and other jurisdictions, has demonstrated that important public services such as airlines require a clear set of consumer protection rules that will ensure that reasonable customer expectations are met. This is particularly the case in Canada where geography and population size constrain the ability of competition on the basis of quality of service to be effective.
We are writing to request a meeting at your earliest convenience to discuss the above. We understand that you have had the benefit of representations from industry stakeholders in relation to the making of airline policy. We wish to ensure that similar access is afforded to the representatives of the Canadian traveling public.
Thank you.
Yours truly,
Original signed
Michael Janigan
Executive Director/General Counsel

Proposed Acquisition by TELUS Mobility of Microcell

FAX: (819) 997-0324
Mr. Gaston Jorre
Senior Deputy Commissioner
Competition Bureau
50 Victoria St
Gatineau, QC
K1A 0C9
Dear Mr. Jorre:
RE: Proposed Acquisition by TELUS Mobility of Microcell
I am writing to you with regard to the proposed acquisition by TELUS Corporation of Microcell. The Public Interest Advocacy Centre (PIAC) views this proposed acquisition with some concern.
As you know, competition in telecommunications is intended to be a very important safeguard of consumers= interests. Indeed, the telecommunications regulator, the Canadian Radio-television and Telecommunications Commission (CRTC), has stated many times its intent to rely on competitive forces instead of direct regulation, where possible. PIAC agrees. Competition has the potential not only to keep prices to consumers in check, but also to foster innovation and attention to specific customer needs.
Competition in the local telephony market for residential customers has been very slow to develop. In 1997, the CRTC ordered a number of measures, including interconnection and the availability of co-location and unbundled loops from incumbents, followed by local number portability and a number of other measures. However, the CRTC reports that, by the end of 2002, incumbents still had an aggregate market share of 95.2%, when measured in terms of number of lines. Looking at residential market share in individual large cities, the picture is not much different. Incumbents served 93.9% of residential lines in Toronto, 98.0% in Vancouver and Victoria, 99.1% in Ottawa-Gatineau, and 100% in Victoria, Edmonton, Regina, Winnipeg, and Quebec City. Only in Halifax have competitors had a noticeable effect, and even there, the incumbent has a market share of 87.3%.1
Competitive Local Exchange Carriers (CLECs) have had difficulty penetrating the local market, using either their own facilities or bottleneck facilities leased from the incumbent telephone companies. In consequence, hopes for increased competition have largely been placed upon wireless service providers, who use the radio spectrum as an access medium, and cable operators, who use a mix of coaxial cable and fiber optic rings to reach individual homes.
While Voice Over Internet Protocol (VOIP) has received a great deal of publicity lately, it remains that, to be used for telephony, VOIP must ride over an access medium to customers= homes. Today, that access medium is supplied either by the incumbent telephone company or by the cable operator, leading to a classic duopoly.2 The ability of others to provide VOIP, as an application over high-speed Internet connections, does not change the fundamental fact that the access medium, and hence local telephony as a whole, is still largely a monopoly or duopoly. It merely shifts the locus of monopoly power from the level of the voice service to the level of the high-speed Internet connection.
Wireless service suppliers (WSPs) have the potential to increase the number of competitive alternatives for basic telephone service. Traditionally, the cost per minute of this alternative has been too high for it to constitute a substitute for traditional wire-line telephony. However, costs have been dropping and the potential for meaningful competition is here.
Indeed, Microcell has entered the traditional local telephony markets, first in Vancouver and then in Toronto, positioning its City Fido service as a substitute for traditional telephony. The monthly charge of $45 for unlimited calling, which includes three features (Call Waiting, Call Forwarding, and Conference Call), seems to be attractive to customers. Indeed, some commentators have suggested that this initiative has TELUS Arunning scared@ in Vancouver.3
PIAC also notes that Microcell is the last remaining WSP that is independent of incumbent telephone companies and cable operators. Unlike them, Microcell does not have an existing wire-line business to protect, nor an existing collection of facilities that are at risk of being stranded. Indeed, Microcell has shown itself to be the only WSP that is truly interested in competing in the traditional wire-line telephony market. For example, to date Microcell is the only WSP that has registered as a CLEC, with all the obligations and advantages that entails.4
PIAC is concerned that TELUS= proposed acquisition of Microcell is intended principally to limit competition from products such as City Fido, and not for reasons of increased efficiency or network extension.
After all, TELUS mobility services already cover 92% of the Canadian population, thanks to the acquisition of Clearnet, another WSP.5 Acquisition of Microcell would not significantly increase this coverage. As well, the technologies used by TELUS and Microcell are incompatible. TELUS uses the CDMA standard, while Microcell uses GSM. As a result, there will be few if any efficiency gains in networks and their operation if the proposed acquisition is allowed to take place.
PIAC also notes that the proposed acquisition will lessen competition in the wireless services market. While Microcell=s share of that market is only 10% nationally, it has a significant presence in specific markets. More importantly, it is willing to innovate, in contrast to the other three participants, who seem content to exploit their existing services and customers.6 If competition is to flourish in the wireless and wire-line telephony markets, participants like Microcell are crucial.
In our view, there is a significant danger that the proposed acquisition of Microcell by TELUS is about eliminating a competitor, not about expanding into new markets or benefiting from economies of scale. PIAC urges you to examine carefully the rationale for this acquisition and the impact it likely will have, both on existing and on future competition. The acquisition will eliminate a market participant that has shown itself to be willing to compete vigorously for customers. Will it leave the wireless market in the hands of an oligopoly whose members prefer not to compete too vigorously on price with each other, much less with wire-line service providers?
Yours truly,
Michael Janigan
Executive Director/
General Counsel
1 CRTC, Report to the Governor in Council, Status of Competition in Canadian Telecommunications Markets (November 2003)
2 The possibility of using electric power lines has been explored for some years, but such arrangements are currently negligible, and still face major obstacles.
3 Shane Schick, ABest in Show@, 2004/05/17, at http://www.itbusiness.ca.
4 Obligations include providing customers equal access to long distance provider of their choice
5 George Cope, President and CEO of TELUS Mobility, presentation to RBC Capital Markets Conference, Banff, Alberta, 2004/02/05
6 Microcell has a “churn rate”, or rate of customer turn-over, of 3.1%, compared to 1.4% for Bell Mobility and TELUS Mobility. In PIAC’s view, a high churn rate is indicative of vigorous rivalry, and of “doing things differently”
 

Consumer Issues with Internet Service: Is Industry Self-Regulation Working?

thumb_pdfDownload File: piac_isp_report.pdf [size: 0.13 mb]


thumb_wordDownload File: piac_isp_report.doc [size: 0.17 mb]

Consumer Groups' submissions to CRTC on Payphone Access – Executive Summary of Argument

Public Notice CRTC 2002-6: Access to Payphones
Argument of the Consumer Groups
EXECUTIVE SUMMARY

Public Interest Payphones

  • Payphone service is considered an important public service by almost everyone, and is relied upon by a wide spectrum of consumers, not just those without home phone service or wireless service.
  • A significant minority of users is dissatisfied with the availability of payphones, and report frustration as a result of payphone removal or difficulty finding a payphone when they need one. Meanwhile, payphone availability is steadily declining, at a rate of app.3% per year.
  • It is therefore appropriate for the regulator to take action to ensure that payphone service continues to be provided where needed. However, it is not clear whether a subsidy is needed to accomplish this.
  • It is preferable, everything else equal, for location providers and/or payphone service providers to cover the costs of non-compensatory payphones (as is currently the case) rather than to establish a new subsidy regime paid for by subscribers or users.
  • The Consumer Groups therefore propose the following approach, applicable to all pay telephone service providers (PSTPs) unless otherwise stated:
    • a three-year period during which payphone needs (including consumer complaints) are more closely monitored, and during which PTSPs are under regulatory obligations to notify affected communities and interested parties, and to seek location providers (see argument for detailed proposal); and
    • a review after three years, to determine whether this approach is adequate, and if not, to establish a mandatory regime for public interest payphones.
  • All payphones should have the same basic functionality, consumer safeguards, and price.
  • Directory assistance should continue to be free from all payphones.
  • Every payphone location should include a coin-operated payphone, except where specifically approved otherwise by the CRTC.
  • The issue of calling card interoperability should be addressed, possibly via a follow-up to this proceeding. This issue should be given higher priority depending on the extent to which the Commission permits the provision of payphones without a coin payment option.
  • Incoming call capacity should be offered at the discretion of the location provider (as is apparently the case now). When incoming call capacity is removed from a payphone, notice should be posted on the payphone explaining why it has been removed.

Accommodation of Deaf Consumers

  • Deaf consumers have a right to access public payphones.
  • This right should be accommodated in a manner that does not cause undue hardship to others. In particular, the accommodation of deaf consumers should not have the effect of reducing general payphone availability, accessibility, or affordability, or of reducing basic service affordability;
  • The accommodation of deaf consumers should therefore not be funded via an increase in the price of payphone service or general phone service, such that the availability or affordability of either service is compromised;
  • A joint CRTC/Canadian Human Rights Tribunal proceeding should be initiated to develop comprehensive rules for the accommodation of deaf consumers in respect of public payphone service;
  • A pilot project should be initiated to assess the costs and benefits of different approaches to accommodation of deaf consumers;
  • All new payphone banks of four or more payphones (including those that have simply been expanded) should include a TTY unit, unless there is another TTY-equipped payphone within 70 metres;
  • All TTY-equipped payphones be well-signed; and
  • All new payphones be equipped with volume control buttons and an acoustic hearing aid coupler in the handset to accommodate hearing-impaired consumers.

END OF DOCUMENT
 

Response to the Interim Report on Copyright Reform

News Release: PIAC and CIPPIC response to the Interim Report on Copyright Reform released by the House of Commons Standing Committee on Canadian Heritage

News Release
Ottawa, ON

Public Interest Groups make Internet an Election Issue

Three public interest groups have launched a campaign to focus the attention of political parties and candidates on issues involving the Internet and user rights. The Canadian Internet Policy and Public Interest Clinic (CIPPIC), Digital Copyright Canada, and the Public Interest Advocacy Centre (PIAC) have asked party leaders and candidates for their views on user rights under copyright law and other technology-related issues.
CIPPIC and PIAC also issued today a highly critical response to the Interim Report on Copyright Reform released by the House of Commons Standing Committee on Canadian Heritage last month. CIPPIC and PIAC state that the report ignores key evidence and submissions by public interest groups, and lacks reasoning for some key recommendations. They call for rejection of the report and for a more balanced approach to copyright reform in Canada. See www.cippic.ca/whats-new .
CIPPIC, a legal clinic based at the University of Ottawa, posed seven questions to each party and candidate – party responses are posted on its website at www.cippic.ca/election2004. The issues include music file-sharing over the Internet, the rights of educators to use copyrighted material posted on the Internet, and what we should do about spam. “These are all serious issues with significant implications for Canadians”, said Philippa Lawson, Executive Director of CIPPIC. “Whoever forms the next government will have to address them, and Canadians deserve to know how they will do so.”
So far, the Liberals, Greens, NDP and Bloc have provided party responses.
Digital Copyright Canada, a forum for individuals concerned about the direction that copyright law is taking, is using its website (www.digital-copyright.ca ) to encourage electors to raise copyright law issues with their candidates, and to pressure the government to take a more user-friendly approach to copyright. It has drafted a petition calling on the federal government to expand user rights under the Copyright Act, and uses its website to direct people to individual candidate responses to the questions.
“Copyright is automatic when you create something. This means that all Canadians are copyright holders, including copyright holders of a grocery list”, commented Russell McOrmond, host of Digital-Copyright.ca. “Given that all Canadians are rights-holders, we need to ensure that our interests are considered in copyright reform. We need to remind legislators that most works under copyright are non-commercial in nature. As a Creative Commons and Open Source creator, I also want to remind the government that collecting royalties is only a subset of the wide variety of business models used by commercial copyright holders”.
PIAC, an organization representing consumer interests, has issued a report on the consumer’s view of copyright advocating broader user rights under copyright law and questioning the need to legislate protection for anti-infringement technology used by copyright holders.
“Canadian consumers have told the government that they want to it preserve and enhance existing permitted uses under copyright law,” said Sue Lott, author of the report. “If we go the route of the U.S. and enact legal protection for technical measures, we will destroy the critical balance in copyright between the user’s ability to access copyrighted works and the protections given to holders of copyright, to the detriment of consumers.” PIAC’s report and submissions to Parliament are accessible from its website at www.piac.ca/copyright.htm .
For more information, contact:
Philippa Lawson, CIPPIC
(613) 562-5800 x.2556
plawsonATuottawa.ca
Russell McOrmond
Digital-copyright.ca
(613) 733-5836
russellATflora.ca
Sue Lott, PIAC
(613) 562-4002 x.23
slottATpiac.ca

National Cyber Security Task Force

PIAC calls on Public Security Minister and National Security Advisor to Appoint Civil Society Representatives to the National Cyber Security Task Force (May 26, 2004)

PUBLIC INTEREST ADVOCACY CENTRE
LE CENTRE POUR LA DEFENSE DE L’INTERET PUBLIC
ONE Nicholas Street, Suite 1204, Ottawa, Ontario, Canada K1N 7B7
Tel: (613) 562-4002. Fax: (613) 562-0007.
e-mail: piac@piac.ca
http://www.piac.ca
The Honourable Anne McLellan
Deputy Prime Minister of Canada
Minister of Public Safety and Emergency Preparedness
Public Safety and Emergency Preparedness Canada
340 Laurier Avenue West Ottawa, Ontario K1A 0P8
Mr. Robert Wright
National Security Advisor
Office of the Prime Minister 80 Wellington Street Ottawa, Ontario K1A 0A2
BY MAIL ONLY
Dear Ms. McLellan and Mr. Wright:
Re: National Cyber Security Task Force Representation
I am writing to you regarding representation on the proposed National Cyber Security Task Force. I write on behalf of the Public Interest Advocacy Centre and the undersigned entities and individuals who are concerned with Canada’s privacy law and civil liberties.

Canada’s New National Security Policy

PIAC and the undersigned have read with interest the recent Securing an Open Society: Canada’s National Security Policy. We congratulate you on this initiative and in particular on the recognition of an open society as a defining element of our country. The new national security policy underlines its commitment to a security framework that “fully reflects and supports key Canadian values of democracy, human rights, respect for the rule of law, and pluralism.” In discussing the Integrated Threat Assessment approach, the policy states that such assessment will be “undertaken in a way that respects the privacy rights of Canadians”.

Cyber Security Task Force Representation

To assure that the reality approaches such ideals we recommend that you consider at least one representative on the proposed task force from those groups dedicated to defending the privacy rights and civil liberties of Canadians. Information technology is not only wired into critical infrastructure, but is also woven into the social fabric, as the policy recognizes. The Task Force’s collective mind can best consider the problems of the integration of cyber security policy and privacy and fundamental civil rights if a voice promoting these concerns is found within it.
We look forward to your consideration of our request. Should you decide such representation on the Task Force is appropriate, we will be pleased to offer suggestions of possible candidates.
Sincerely,
John Lawford
Barrister & Solicitor
Research Analyst
JDL/sr
Stephanie Perrin,
President
Digital Discretion
Darrell Evans, Executive Director
B.C. Freedom of Information and Privacy Association
Murray Mollard
Executive Director
B.C. Civil Liberties Association
Philippa Lawson
Executive Director
Canadian Internet Policy and Public Interest Clinic, University of Ottawa
Richard S. Rosenberg
Vice-President
Electronic Frontier Canada
Valerie Steeves
Chair
National Privacy Coalition
Thomas B. Riley
Executive Director
Commonwealth Centre for e-Governance
 

Digital copyright issues

Chair, Standing Committee on Canadian Heritage
House of Commons
Ottawa, Ontario

Submission of the Public Interest Advocacy Centre on Copyright Reform – Private copying and WIPO ratification

  • Thk you for giving Public Interest Advocacy Centre opportunity to provide input to this committee on some aspects of copyright reform process this committee has been engaged in over last year
  • think it is of critical importance that committee hears from range of voices with a stake in the issues raised by copyright reform in the digital era and the pressure to meet our international obligations with respect to copyright. This means not just creators and rights-holders or their collective representatives, but from users or consumers of copyrighted materials.

Who we are

  • Public Interest Advocacy Centre (PIAC) – non-profit organisation that provides legal services and research to Canadian consumers and the organizations that represent them. Our work primarily concerns important public services including telecommunications, broadcasting, energy, financial services and public transportation.
  • PIAC represents coalitions of low income or vulnerable consumers before regulatory tribunals such as Ontario Energy Board and CRTC. Through contributions program for non-profit consumer and voluntary organizations of the Office of Consumer Affairs, Industry Canada, we provide research on consumer issues affecting marketplace, including report, recently completed reviewing individual public submissions on reform of the Copyright Act, called The Consumer’s View of Copyright.
  • PIAC also member of Balanced Copyright Coalition, a coalition of public interest advocates, academics, Canadian Internet, telecommunications, broadcasting and technology companies and industry associations interested in the development of Canada’s Copyright Act
  • Aware that focus of today’s appearance on private copying levy and WIPO ratification – will address this but would also like to address briefly some larger consumer concerns with respect to WIPO ratification

Private copying levy and WIPO ratification

  • Review of this committee’s recent transcripts suggests uncertainty about the current conformity of Canada’s private copying levy with the WIPO treaty (March 25/04 line 0915)
  • As public interest organisation which comments on consumer issues, our view on issue is from perspective of end-user
  • Three concerns:
  • High costs for end-users or consumers – consumers already pay levy on blank recording media, which now includes MP3 players (Dec. 12/03 Copyright Board decision) – affording national treatment obligations under WIPO treaties will greatly increase the costs imposed on consumers
  • Levy generally imposed (despite minor cost differences) – doesn’t distinguish between non-infringing and infringing uses, therefore consumers already paying levy even though they may be using recordable CDs simply to back-up computer files, for example, not necessarily for any copyright-related purpose
  • Consumer have little knowledge of copyright – being pulled into the debate and subjected to new fees and limitations without any clear understanding of what constitutes infringement and what is permissible under the Act

Ratification of WIPO must reflect Canadian legal environment

  • Fair dealing provision of Copyright Act – important for consumers – legal protection for technical measures (such as found in the Digital Millennium Copyright Act of the U.S.) – can have the effect of eliminating fair dealing by protecting measures that prevent access to copyrighted works – U.S. experience reflects fall-out of this for academic and research community – legal cases, numerous bills to mitigate effects of legislation, strong concerns expressed by the Register of Copyright
  • Recent court cases have considered and narrowed the definition of copyright infringement in the digital era
  • Private copying exception to infringement (1997 amendment to Copyright Act) to allow for the making of a copy of a musical sound recording for the private use of person making the copy
  • Copyright Board decision (12 Dec. 2003) – indicated that downloading music for personal use does not amount to infringement (p.20)
  • CCH Canada Ltd. v. Law Society of Upper Canada – Supreme Court held that setting up facilities that allow for copying does not constitute authorizing infringement
  • Recent federal court decision denying motion by Canadian Recording Industry Association seeking disclosure of identity or certain ISP customers – important holding regarding copyright infringement – court held that the act of placing music files on file sharing service (uploading) does not constitute copyright infringement (para. 27-28)

Public submissions to the federal government consultation opposed to changes that would bring Canada closer to DMCA-style Act

  • PIAC reviewed individual submissions – 540 of 700 indicated opposition to amendments that would augment rights of copyright holders over the public, whether through ‘making available right’, legal protection for technical measures or rights management information
  • General concern – technical protection measures eliminating legal uses and upsetting the balance between copyright holders and the public, in favour of copyright holders

Conclusion

  • We need to take the time to adopt changes that won’t upset the balance between users and copyright holders
  • Canada not behind other G-7 countries in terms of treaty ratification – only U.S. and Japan have ratified WIPO treaties
  • Changes in the digital environment affecting copyright suggests the need for new models – i.e. Creative Commons license – allows rights holders to specify their own conditions of use
  • Licenses wouldn’t override fair dealing but can indicate a voluntary surrender of some or all parts of copyright
  • False premise re the Internet in the Status Report – that it is a commercial enterprise only – Internet’s fundamental premise and reason for its phenomenal success is that its organizing structure involved a non-market exchange of information – it created a public domain that must be protected and not eliminated by digital copyright reforms

Report: The Consumer’s View of Copyright

thumb_pdfThe Full text is available as a PDF[pdf file: 0.43mb]

Executive Summary

This report examines the relationship between copyright and consumers in light of current federal government initiatives to amend the Copyright Act. Specifically, the report looks at the submissions made by individual members of the public to the federal government under the copyright reform consultation, which began in 2001.
The report also focuses on the changing context for copyright created by the digital era and its effect both on the relationship between consumers and copyrighted works and between consumers and owners of copyrighted works. It examines digital copyright issues in relation to important recent developments in copyright law in the U.S. and the increasing importance of copyright in international trade agreements.
Finally, the report makes some recommendations concerning proposed changes to the Copyright Act, in light of issues identified by consumers and the immediate reform agenda of the federal government.

Copyright and the public interest

Copyright applies to all original literary, dramatic, musical and artistic works. It protects the expression of an idea in a fixed manner, but not the idea itself. It has been described as a balancing of interests between the creator (or copyright owner) on one side and the public on the other. The reasons for this lie in the original purposes of copyright to promote learning and public consumption of works as well as to protect works in order encourage authors to create works.
Copyright law in Canada, as it has developed, has emphasized the need to find an appropriate balance between creators’ rights and the public’s interest in those works. The difficulty in finding the appropriate balance between these rights is the source of the tension in copyright law.

Copyright in the digital age

The tension between the public’s interest in using works and those of copyright holders in protecting and benefiting from works has been accelerated by the digital age. Ordinary citizens may easily access and use works made available on the Internet in ways that broaden and fundamentally change the way individuals relate to works. At the same time, creators, who are increasingly characterized by copyright owners and representatives of the cultural industries, are concerned that this change in the relationship between works and users of those works, as a result of the digital age, threatens the traditional protections of copyright and therefore the economic benefits that flow from that protection.
One way that copyright owners have asserted their rights in the digital era has been to employ technological measures to protect works from unauthorized uses or even access to those works. However, the concern raised by these measures is that they place potential control over copyright in the hands of copyright owners well beyond what currently exists in copyright legislation. These measures may have the effect of eliminating legal uses of copyrighted works.

Digital copyright and the international context

The struggle between copyright owners and users concerning protection and access is being played out in the international context. In the U.S. it has revolved around some key legislative changes. Extension of copyright terms and the enactment of digital copyright legislation, the Digital Millenium Copyright Act (DMCA) have had a significant impact on user rights in the United States.
Copyright is also increasingly the subject of international treaties and trade agreements. This creates pressure on Canada to harmonize its copyright laws with those of other countries, adding further complexity to the challenge of maintaining the balance between copyright owners and the rights of the larger public.

Consumers and copyright

An overwhelming majority of the individual submissions to the federal government under the copyright reform consultation, indicated opposition to amendments that would augment the rights of copyright holders over the public or the consumer in the digital environment. Many of the submissions also stated their opposition to amendments to the Copyright Act that would bring Canada closer to a DMCA legislative model.
The concern consistently expressed by individuals was that technological protection measures would eliminate legal uses under copyright legislation and tip the balance between copyright holders and the public, in favour of copyright holders. Strong concerns were also expressed that granting further legal protections for copyright holders would diminish scientific enquiry and free speech. Concerns were expressed that consumers had been left out of the copyright debate.
The extent of public reaction to proposals regarding the direction of copyright reform in the digital age is a function of the extent to which copyright now has a very real and direct impact upon consumers. Copyright is a consumer issue because the subject matter of copyright has become increasingly important in an information age. The growing importance of information in our economy means that both having access to and controlling that information has an increased economic value.
Copyright is also a consumer issue because the digital age has changed the way the public accesses and uses the content that is subject to copyright. Consumers, as a matter of course, come into contact with copyrighted works using digital technology. This means they are now directly affected by the legal uncertainties around copyright due to the ease of reproduction and manipulation of copyrighted works by computers.
Recommendations for reform of the Copyright Act

The following recommendations address those issues identified by the federal government as part of its short-term reform agenda:

Recommendation 1: The Canadian government should not model Canada’s copyright reform on the DMCA
Recommendation 2: The government should not proceed with legal protection for technological measures
Recommendation 3: The “fair dealing” provision of the Copyright Act should be expanded
Recommendation 4: The term of protection for unpublished works should not be extended
 
————
 

Sommaire

Ce rapport examine les liens qui existent entre le droit d’auteur et les consommateurs suite aux initiatives actuelles du gouvernement fédéral visant à modifier la Loi sur le droit d’auteur. Le rapport étudie, en particulier, les propositions effectuées par les membres du public auprès du gouvernement fédéral conformément au processus de consultation sur la réforme du droit d’auteur qui a débuté en 2001.
Le rapport souligne non seulement l’importance du contexte en constante mutation dans lequel le droit d’auteur évolue, en particulier suite à l’émergence de la technologie numérique. Le présent rapport décrit également les conséquences de la technologie numérique sur les liens entre les consommateurs et les œuvres protégées et ceux existant entre les consommateurs et les détenteurs d’un droit d’auteur. Ce rapport examine les questions relatives au droit d’auteur numérique suite aux importants événements qui ont eu lieu récemment en matière de législation sur le droit d’auteur auxÉtats-Unis et suite à l’importance toujours croissante accordée aux droits d’auteur dans les accords commerciaux internationaux.
Finalement, le rapport propose quelques recommandations visant à modifier la Loi sur le droit d’auteur, conformément aux questions soulevées par les consommateurs et à l’ordre du jour immédiat du gouvernement fédéral concernant la réforme.

Droit d’auteur et intérêt public

Le droit d’auteur s’applique à toute œuvre originale littéraire, théâtrale, musicale et artistique. Il protège l’expression d’une idée de manière fixe, mais ne protège pas l’idée elle-même. Le droit d’auteur est souvent décrit comme étant le juste équilibre entre les intérêts des créateurs (ou des détenteurs du droit d’auteur) d’un côté et ceux du public de l’autre. La fonction actuelle du droit d’auteur s’inscrit dans l’objectif original de celui-ci qui consistait à promouvoir l’apprentissage du public, à l’encourager à consommer ainsi que protéger ces œuvres afin d’encourager les auteurs à la création.
Au Canada, la Loi sur le droit d’auteur a évolué. Elle s’efforce de trouver un juste équilibre entre les droits des créateurs et ceux du public relativement à ces œuvres. L’équilibre entre ces droits est source de tension lorsqu’il s’agit de loi sur le droit d’auteur.

Le droit d’auteur et l’ère numérique

La tension entre les intérêts du public qui utilise les œuvres et ceux des détenteurs du droit d’auteur qui protègent leurs œuvres et en tirent profit s’est aggravée suite à l’émergence de l’ère numérique. Chaque citoyen peut facilement avoir accès aux œuvres grâce à Internet et peut les utiliser de diverses façons. Ces différentes méthodes permettent au public d’avoir une opinion plus large et totalement différente sur ces œuvres. De plus, les créateurs, qui sont de plus en plus caractérisés par les détenteurs du droit d’auteur et les représentants de l’industrie du contenu, redoutent que cette nouvelle relation entre les œuvres et les utilisateurs de ces œuvres, suite à l’émergence de la technologie numérique, menace les protections traditionnelles qu’offre le droit d’auteur et par conséquent les retombées économiques qui découlent de cette protection.
À l’époque du numérique, les détenteurs du droit d’auteur affirment leurs droits en employant, entre autres, des mesures technologiques pour protéger leurs œuvres contre les utilisations illégales voire l’accès à leurs œuvres. Cependant, ces mesures donnent aux détenteurs du droit d’auteur le contrôle du droit d’auteur qui va bien au-delà de ce qui existe actuellement dans la législation. Cet abus de pouvoir potentiel fait l’objet d’inquiétude. Ces mesures pourraient supprimer toute utilisation légale d’œuvres protégées.

Droit d’auteur et contexte international

La lutte entre les détenteurs du droit d’auteur et les utilisateurs concernant la protection et l’accès des œuvres se joue sur fond de contexte international. AuxÉtats-Unis, les discussions portent sur quelques modifications législatives fondamentales. L’élargissement des clauses sur le droit d’auteur et la promulgation de la loi en matière de droit d’auteur d’œuvres numériques, le Digital Millenium Copyright Act (DMCA), a eu des conséquences significativessur les droits des utilisateurs aux États-unis.
Le droit d’auteur fait également de plus en plus l’objet de traités internationaux et d’accords de commerce. Le Canada se trouve donc dans l’obligation d’harmoniser ses lois en matière de droit d’auteur avec celles des autres pays, ce qui rend l’équilibre entre les détenteurs du droit d’auteur et les droits du grand public encore plus difficile à maintenir.

Consommateurs et droit d’auteur

La grande majorité des propositions effectuées par des citoyens à titre personnel auprès du gouvernement fédéral suite à la consultation sur la réforme du droit d’auteur s’oppose aux amendements qui renforceraient les droits des détenteurs au détriment du public ou du consommateur dans l’environnement numérique. Bon nombre des propositions refusent également toute modification qui rapprocherait la Loi sur le droit d’auteur canadienne au modèle législatif qu’est le DMCA.
Les citoyens s’inquiètent des mesures technologiques visant la protection des œuvres qui élimineraient toute utilisation légale de ces dernières conformément à la Loi sur le droit d’auteur et déstabiliseraient l’équilibre entre les droits des détenteurs et ceux du public favorisant les premiers. Les personnes interrogées s’inquiètent aussi du fait que les consommateurs ont été écartés du débat.
La réaction du public aux propositions concernant l’orientation de la réforme du droit d’auteur dans l’ère numérique est proportionnée aux conséquences très réelles et directes du droit d’auteur sur les consommateurs. Le droit d’auteur est une question de consommation, car il est devenu fondamental à une époque où tout repose sur l’information. Dans notre économie, l’importance croissante accordée à l’information signifie qu’y avoir accès et la contrôler lui donne une valeur économique supérieure.
Le droit d’auteur est également une question de consommation parce que l’ère numérique a modifié la façon dont le public accède à la culture, soumise au droit d’auteur, et la manière dont il en fait usage. Par conséquent, les consommateurs découvrent des œuvres protégées par le droit d’auteur grâce à la technologie numérique. L’émergence de la technologie signifie que le public subit dorénavant directement les incertitudes juridiques du droit d’auteur grâce à l’informatique qui facilite la reproduction et la manipulation des œuvres protégées par le droit d’auteur.
Recommandations pour la réforme du droit d’auteur

Les recommandations suivantes répondent aux questions identifiées par le gouvernement fédéral dans le cadre de son ordre du jour à court terme sur la réforme :

Recommandation 1 : Le gouvernement canadien ne doit pas s’inspirer du DMCA pour réformer sa Loi sur le droit d’auteur.
Recommandation 2 : Le gouvernement doit abandonner toute protection juridique pour les mesures technologiques.
Recommandation 3 : L’article sur l’« utilisation équitable » de la Loi sur le droit d’auteur doit être révisé et élargi.
Recommandation 4 : Les clauses concernant la protection de toute œuvre non publiée ne devraient pas être révisées ni élargies
 

Presentation to the Standing Committee on Resources Development

Presentation to the Standing Committee on Resources Developmenton Bill 35 – Energy Competition Act, 1998

Speaking Notes of the Public Interest Advocacy Centre(PIAC)

Introduction

First of all, I would like to extend our thanks to the Committee for giving us an opportunity to address the Committee on our concerns associated with Bill 35 – the Energy Competition Act.
The Public Interest Advocacy Centre (PIAC) is a non-profit organization that provides legal and research services on behalf of consumer interests, and, in particular, vulnerable consumer interests concerning the provision of important public services. Since the inception of the Centre in 1976, the regulation of public utilities, such as telecommunications and energy, has been an important focus of the Centre’s work .
PIAC has been a frequent intervenor, generally on behalf of low income customers, in proceedings before the Ontario Energy Board, both with respect to rates and policies for natural gas local distribution companies and in the former periodic reviews of different aspects of the Ontario Hydro operation. We participated fully in the OEB proceedings that produced the report recommending the legislative changes in the gas industry which has provided a policy basis for the portions of this Bill dealing with the natural gas industry. PIAC has also published extensive reports in utility fields and frequently provides policy reports to the federal department of Industry on consumer related concerns. We have appended a partial list of publications to this document.
By way of general comment upon Bill 35, we would state that the Government appears to be proceeding in a prudent fashion, given the relatively large stakes involved in the management of the transition to a more competitve energy industry in Ontario. Getting from where we were, to where we will end up, is by no means a straightforward proposition.The management of the change will play a key role in the economic future of all stakeholders . As we will discuss later in this submission, it is vitally important that the superintending authority possess the ability to fashion effective consumer protection and market failure remedies when the need arises. In energy, we do not have the luxury to wait for long term market correction based on economic theory in the event that serious impairment arises to threaten energy access and affordability.
It should also be recognised that this Bill deals with two industries, gas and electricity, with wholly different historical profiles in terms of meaningful regulation, public accountabilty and effectiveness. The natural gas industry has carried out its monopoly operations pursuant to real scrutiny by an informed and effective regulator, the OEB, with authority to review performance and compliance. Ontario Hydro, on the other hand , has not had a similar experience and its lack of meaningful accountability has given rise to many of the problems that beset it today. Public satisfaction with the historical performance of the natural gas industry is relatively high: there is little clamour for change among natural gas residential consumers. In electricity, on the other hand, there has been a demonstrable need for change that is apparent to all informed stakeholders.
However, little can be gained at this juncture by a recitation of the past sins of Ontario Hydro. When discussing the treatment of utilities, it is always a risky proposition to quote from former British Prime Minister Margaret Thatcher. However, I believe that her statement ” if we spend our present, debating the past, we will find that we have forfeited our future ” has particular resonance with many of the tasks concerning the management of the electricity industry that are before us in this Bill. We cannot make the monkey of stranded costs disappear from the backs of the Ontario Hydro customer. We can only ensure that there is a equitable treatment of these costs so that : (1) the burden of the costs are fairly allocated and (2) no market participant is able to avoid contribution by opting out.
We have organised our comments upon this Bill under the general headings of Benefits, Consumer Protection and Unknowns. The limitations of time prevent a lengthier discussion of many of the points raised in each of the above noted categories, but I trust that other presenters may be addressing them.

Benefits

We see potential benefits accruing to all consumers from the following features or effects of Bill 35:

  1. The separation of the Ontario Hydro’s generation assets and the restructuring of the transmission and distribution system should encourage better accountability of individual system components and reduce cross-subsidies among system components. As well, the elimination of vertical integration should help attenuate market power.
  2. The introduction of competition into the electricity sector, given adequate supervision to maintain service and quality standards, should serve to introduce new efficiencies into the generation and distribution system that should help to reduce operating costs.
  3. In the natural gas sector, the removal of regulatory barriers to gas sales may enable the expansion of competitive delivery of other components of the current system delivered in a monopoly mode. Once again, this increases the possibilities for elimination of cross-subsidies and inefficiencies currently costed to gas delivery.
  4. The provisions requiring licensing of gas marketers, with proper enforcement, should address the ongoing problem of consumer deception or improper conduct in the solicitation and delivery of commodity to customers.
  5. The monopoly components of the Ontario Hydro’s transmission system will finally be subject to cost of service regulation, and ongoing scrutiny will take place to ensure conformance with OEB directives.

Protections

  1. Proper enforcement of the licensing provisions links a code of conduct for marketers and retailers with their ability to stay in business. This provides a powerful incentive to avoid customer abusive behavior.
  2. Contracts entered into with an unlicensed marketer cannot be enforced against the user, diminishing the prospect of hit and run sales by rogue operators with an eventual assignment of contracts to an established player.
  3. The OEB must approve the distribution rates to be charged by the successor corporations to the MEUs. In addition, the distributor has an obligation to supply customers in the distribution area providing security of access for consumers.
  4. Any transfer of over 20% of the assets of a distribution system is subject to OEB approval, presumably to protect customers in the serving area from improvident transactions.
  5. The new distribution corporations set up by the municipal utility must separate monopoly and competitive businesses. This provides some insurance against cross-subsidization..

Unknowns

  1. The successful fostering of competition will result in loss of market share by the Genco. Such market share loss may impact on the payments to be made to the Financial Corporation for the retirement of debt. In turn, this may increase the size of the stream of revenue required from all market participants through the levy to recover for stranded debt. This makes it, of course, difficult to capture competition benefits for consumers achieved in the electricity generation sector.
  2. Will municipal taxpayers be subject to greater risks by the activities of the municipal commodity corporations? There will be differing levels of expertise and buying power in the new commodity acquisition corporations owned by the MEUs. If a new corporation is not able to outbuy the market or even acquire competitively priced electricity, the separation from the local transmission business may buffer customers but not local taxpayers from losses by the municipally owned commodity business that might be incurred. As well, there may have to be a workably competitive market in place for retail, in order for the end-use customers to be protected in this circumstance.
  3. Will there be other competitive sources of power generation to produce a workably competitive market, or are we simply fostering a competitive resale market?
  4. We are creating a retail market for commodities that the ordinary citizen has little experience in buying. The initial experience with door to door natural gas sales has been a cautionary tale . Healthy competition depends on the communication of straightforward unbiased information to establish a market of informed consumers, to mandate transparency in the details of the retail transaction, and to ensure swift and effective enforcement of rules of marketplace conduct. Will there be adequate resources provided for these tasks and how will they be provided? Consumer and competitive concerns militate for strong provisions incorporated into the licensing regime to ensure customer mobility, ease of comparison with rival services, as well as confidence in the ability of the licensed marketers to deliver their product. There must be pro-active oversight with the resources to ensure that the job gets done.
  5. The necessity to put in place transmission rates for January 1999 should not prevent a cost of service review of the monopoly elements of Ontario Hydro , particularly before any performance based regulation is put in place.Will current management be successful again in evading regulatory scrutiny because of time constraints.
  6. There are differences in the licensing regime set up for electricity and that set up for gas. What will be the effect of such differences upon the retailing of the energy commodity, for example ?

Conclusions

In this decade, PIAC has been actively engaged with the regulatory and governmental process that has attempted to establish the framework for competition in telecommunications in Canada. The telecommunications experience with competition to date is, in some ways, instructive to the current task in energy, and, in other respects, not particularly helpful.
In telecommunications, it was necessary to re-price network access to facilitate competitive entry into long distance markets. This meant an two to three fold increase in basic rates (despite the initial CRTC finding that such increases were not inevitable). Similar to the energy market, the revenues from long distance service were disproportionately produced from the high volume users. (One third of all Bell Canada accounts in 1994 produced two thirds of the long distance revenue). The CRTC generally left it to market forces both to establish an informed consumer market as well as police the many resellers that sprung up to sell long distance offerings to compete with the former incumbent monopolist. In the result, the higher volume user was largely the market target for discounts. Consumers were bombarded with a confusing array of advertising and some customers were slammed onto services they had not authorized. By the beginning of 1998, most telephone customers were paying higher total telephone bills.
There also continues to exist indicia of the former monopoly in the market power exercised by the incumbent local telephone companies. Up to this year, for example, Bell Canada was able to retain close to a 90% share in the residential long distance market despite the fact that its RealPlus savings plan had call amount minimums that exceeded the monthly long distance bills of a majority of its residential customers. This meant that most customers were not receiving any benefits from competition.
This year, there are finally discounts for ordinary callers available with Bell and there appears to be an expanded interest in low volume customers by most long distance players. The lion’s share of competition benefits still remain with the high volume user.
However, this pattern should not be repeated in energy. Simply put, energy customers in Ontario will not countenance a doubling or tripling of their energy rates and wait six years for some real benefits no matter what the advertising program that accompanies the changes. As well, there will be much less tolerance for unscrupulous operators in the energy field as the consequences of misconduct in false representations, slamming, and inability to deliver are more serious. As one commentator has stated, ” You can’t have a busy signal when you turn on the light switch”.
The telecommunications industry has been saved from widespread public outcry from market misconduct, in part, by the fact that the players are absorbing the transactional costs of customer transfer themselves to encourage customer mobility. Because of the arbitrage nature of competitive commodity offerings in the energy field, long term locked-in energy contracts with customers are the desirable norm for marketers. This makes it difficult to effect market corrections without regulatory intervention, both to police misconduct and secondly to ensure workable competition in an informed consumer market.
Similar to telecommunications, there will likely be attempts to wring concessions for high volume users with accompanying threats to exit the system, if rates are not designed to recover more costs from smaller users. As well, competition theorists are likely to be frustrated by the maddening tendency on the part of private market participants to maximize the bottom line, in the form of cream skimming , service reductions, and mergers and acquisitions, rather than financing competitive entry as they are supposed to be doing.
In our view, Bill 35 seems to have a framework of remedies in place to address th above noted problems.This returns to the central theme of our presentation. The evolution of a genuinely competitive market for energy will initially require more regulatory vigilance not less. (In the case of Ontario Hydro, we are starting close to regulatory ground zero)The statutory provisions of this Bill creating the licensing regime and establishing effective OEB superintendence over the process are vital to the successful smooth transition to competition as well as the operation of the industry to the benefit of the entire public interest.
 

Energy – Other PIAC Documents

Energy Letters

Energy Presentations and Speeches

 

Other Energy Documents