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Just over a week ago I was invited by 2 of my best former students (and former research assistants) to make a presentation to law clerks of the Federal Court and Federal Court of Appeal. I used this wonderful opportunity to talk to them about an issue of particular timeliness and relevance to the appellate-level clerks especially: The ongoing saga over SOCAN's online music tariff, Tariff 22.
I described the historical evolution of the tariff and the many administrative and judicial rulings on it. I pointed out how despite over a decade of litigation, royalties have yet to start flowing pursuant to the tariff. I talked about the tariff's shifting targets, first internet intermediaries like service providers, then major music distrubutors like online music stores and webcasters, and possibly even millions of indivudual internet users.
I also mentioned my work-in-progress, which is looking at how intermediaries might (or more likely, might not) be protected from copyright liability given recent trends in traffic shaping. The SCC's decision immunizing intermediaries was premised on passive-reactive behaviour, but intermediaries (including consumer connectivity providers like Bell or Rogers and social media hosts like Facebook or YouTube) are becoming increasingly active in monitoring, managing or maybe even filtering online content. So my research is examining the collision of copyright safe harbours and network neutrality, which are among the most controversial topics in this area of the law right now.
I'll post more on that issue as my work evolves. Meanwhile, I told the law clerks not to expect any kind of conclusion to this SOCAN saga until 2014, which -- based on events so far -- is about the time I'd expect litigation over version 2.0 of the tariff to wrap up if it goes to the SCC again. And by then, who knows what the web will look like? Don't be surprised to see SOCAN propose a 3rd iteration of this tariff. Maybe, based on my research, they'll decide to go back where they started and seek royalties from non-neutral ISPs. I guess we'll see.
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