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CYBERLAW 2002: THE NEXT GENERATION

Source: Michael Geist, Globe and Mail

Posted on January 3, 2002

      The continuing importance of issues such as copyrights and privacy facilitates the task of predicting cyberlaw trends for the year ahead.

      While there are always some surprises -- few people had heard of Napster in early 2000 yet it became the year's dominant story, while security was not a mainstream issue in 2001 until Sept. 11 -- most of the central concerns are not tough to identify.

      That being the case, I can safely predict that copyrights, privacy, domain name disputes, cybersecurity, and competition issues will command headlines in 2002. Dig a little deeper, however, and you find these issues continue to evolve, with new, more complex players and initiatives about to take centre stage.

      In Canada, Ottawa's copyright reform process will heat up as policy makers conclude their review of hundreds of submissions received last year, and begin to propose changes to Canada's copyright framework.

      These changes will include the much-anticipated regulations that will determine whether Internet retransmitters may continue to broadcast signals over the Web.

      The changes will also shape policies on technical-measures protection, which involves using technology to guard against the copying of digital content, and intermediary liability, which will determine the role Internet service providers will play in the fight against piracy.

      Complicating this process is the forthcoming decision from the Canadian Federal Court on whether the "Tariff 22" decision will remain intact. This 1999 Copyright Board landmark case stated that responsibility for on-line music lies with the party that makes it available. A statutorily-mandated review of copyright amendments enacted five years ago will also be conducted.

      Outside Canada, copyrights will prove to be contentious in both courts and legislatures. Kazaa, the file-sharing service that has replaced Napster as the recording industry's public enemy No. 1, is embroiled in litigation in both the United States and Europe, while TiVo Inc., which markets digital video recorders, has been hit with lawsuits from the movie industry.

      Even more significant -- and troubling -- is a proposed U.S. bill that contemplates requiring technology companies to include copy protection technologies in their products, thereby "hard-wiring" copyright control.

      Privacy will also garner significant attention in 2002, particularly in Canada. Look for individual provinces, particularly Ontario and British Columbia, to introduce their own privacy legislation to complement the federal law.

      The federal Privacy Commissioner reported that there were nearly 100 complaints filed last year under that statute. With his release of dozens of decisions in December, experts hope the commissioner will continue to follow through on his public commitment to regularly release new decisions, which should lead to many more insights into how the legislation is being applied.

      New procedures and reforms to old procedures will dominate the domain name dispute landscape in 2002. The dot-ca domain received its own dispute resolution policy in late November with the release of the Canadian Dispute Resolution Policy. It should be up and running by the spring, with the first group of decisions coming by late summer.

      At the international level, reforms to the Internet Corp. for Assigned Names and Numbers' uniform domain name dispute resolution policy (ICANN UDRP), which has been hit by consistent criticism, is possible as a consultation on potential changes is under way.

      Perhaps the most noteworthy development will be the effect of a recent U.S. case involving the Corinthians.com domain. A U.S. appellate court ruled in December that the U.S. anti-cybersquatting act, which had been used by trademark holders as an alternative to the ICANN UDRP, actually provides domain name registrants with a clear right of appeal to UDRP decisions. In light of that finding, there could be a deluge of UDRP appeals in U.S. courts this year.

      The impact of the Sept. 11 terrorist attacks will continue to be felt throughout 2002, with cyber-security among the most highly charged issues.

      The Council of Europe's cybercrime treaty was concluded late last year, with Canada becoming an early signatory. The treaty will result in greater co-ordination among law enforcement authorities and may yield new requirements for Internet service providers to retain customer data.

      Of even greater concern are the emerging high-tech cybercrime tools being developed by law enforcement. Some U.S.-based Internet service providers have quietly installed Carnivore, an e-mail surveillance program capable of filtering thousands of messages per second.

      Meanwhile, the Federal Bureau of Investigation has confirmed the existence of the so-called Magic Lantern project, which would reportedly allow law enforcement officials to plant a "Trojan horse keystroke logger" program onto a target's computer by sending a computer virus over the Internet. Once installed, the program could monitor everything typed on a computer keyboard.

      New business models and new technologies will also continue to create new challenges for competition authorities. Nine U.S. states, along with the European Union, appear determined to continue to pursue their antitrust cases against Microsoft Corp.

      Moreover, a new group of e-commerce initiatives are now on officials' radar screens.

      Digital content is a common target as authorities in the United States have launched investigations into the new on-line music subscription services backed by the major record labels, as well as two planned on-line video-on-demand services backed by the major movie studios.




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