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61 Reforms to C-61, Day 15: TPMs - No Exception for Cell Phones

Friday July 11, 2008

The 61 reforms series now shifts to several weeks worth of postings on the fundamentally flawed, dangerous, and stunningly overbroad anti-circumvention provisions in Bill C-61.  The digital lock rules have rightly been the primary focus of attention for most groups as they are far more restrictive than the Liberal's C-60, more restrictive than approaches in other countries such as New Zealand, and arguably even more restrictive than the rules under the U.S. DMCA.  The Canadian DMCA goes far beyond what is needed to comply with the WIPO Internet treaties and ultimately have the effect of eviscerating fair dealing in the digital environment. 

Even with the many reforms I plan to propose, the reality is that these provisions will still be problematic.  I question the need for anti-circumvention legislation (as do countries like Israel which declined to include it in their recent set of reforms).  If the government is committed to anti-circumvention legislation, however, major amendments are critical.

With an eye on the launch of the Apple iPhone in Canada today, I start the anti-circumvention problems with their effect on locked cellphones.  As currently drafted, the bill could make it an infringement to unlock a cellphone and would certainly make the distribution of programs used to unlock cellphones (or service providers that do so) illegal.  Why is this the case?

  1. Section 41.1(1) makes it a violation to "circumvent a technological measure within the meaning of paragraph (a) of the definition of "technological measure"
  2. "Technological measure" covers any effective technology, device or component that controls access to a work
  3. Circumvent means to "bypass, remove, deactivate or impair the technological measure."

In the case of cellphones like the iPhone, unlocking would certainly involve a circumvention.  The only question is whether the iPhone is a "work" under the law.  In the United States, there has been experience with this question and the U.S. Copyright Office agreed that a specific exemption was needed to remove the possibility that a work would cover cellphones (the argument is that the cellphone includes software which constitutes a work).  In supporting an exemption, the Office noted that:

"This is a noninfringing activity by the user. . . The purpose of the software lock appears to be limited to restricting the owner’s use of the mobile handset to support a business model, rather than to protect access to a copyrighted work itself."

Even with the exemption, at least one company has pursued a legal strategy of suing unlockers. Despite the experience in the U.S. and the similar legislative wording in Canada, C-61 does not include a specific exemption for cellphones.  As I pointed out earlier this week, Industry Minister Jim Prentice purports to favour greater competition in the wireless market, yet this bill represents a significant step back since it locks consumers in and the competition out.  Amendments are needed to make it absolutely clear that the anti-circumvention provisions do not apply to the unlocking of cellphones.

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