copyright for canadians

The Governor in Council may make regulations excluding from the application of section 41.1 any technological measure that protects a work, a performer ’s performance fixed in a sound recording or a sound recording,
or classes of them, or any class of such technological measures, if the Governor in Council considers that the application of that section to the technological measure or class of technological measures would unduly restrict
competition in the aftermarket sector in which the technological measure is used.

Moreover, Section 41.2 (2) states that the Governor in Council may make regulations prescribing additional circumstances in which paragraph 41.1(1)(a) does not apply, after taking into consideration the following factors:

(i) whether not being permitted to circumvent a technological measure that is subject to that paragraph could adversely affect the use a person may make of a work, a performer’s performance fixed in a sound
recording or a sound recording when that use is authorized,
(ii) whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available,
(iii) whether not being permitted to circumvent a technological measure that is subject to that paragraph could adversely affect criticism, review, news reporting, commentary, teaching, scholarship or research that could be made or done in respect of the work, the performer’s performance fixed in a sound recording or the sound recording,
(iv) whether being permitted to circumvent a technological measure that is subject to that paragraph could adversely affect the market for the work, the performer’s performance fixed in a sound recording or the sound recording or its market value,
(v) whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available in a medium and in a quality that is appropriate for non-profit archival, preservation or educational uses, and
(vi) any other relevant factor

If Canada establishes anti-circumvention legislation, it should also establish an impartial process that will enable concerned parties to raise potential new circumvention rights without excessive delay.  The process must be fast, cheap, and easily accessible to all Canadians.  Bill C-61 establishes the criteria for the introduction of new circumvention rights but fails to implement an administrative structure to conduct the reviews.

Italy's Article 71(2) quinquies provides:

The rightholders are obliged to adopt proper solutions, also by means of specific agreements with the associations representing beneficiaries in order to allow the exercise of the exceptions provided for in articles 55; 68, paragraphs 1 and 2; 69, paragraph 2; 70, paragraph 1; 71-bis e 71-quater, on beneficiaries’ specific request and on condition that the beneficiaries have acquired the lawful possession of the copies of the work or of the protected subject-matter or have lawfully accessed to them in order to use them, in accordance and within the limitations pursuant to the above mentioned articles, including the payment of the fair compensation, if due.

Denmark's Section 75d(1) provides:

The Copyright License Tribunal, cf. section 47(1), may, upon request, order a rightholder who has used the effective technological measures mentioned in section 75 c(1) to make such means available to a user which are necessary for the latter to benefit from the provisions of section 15, section 16(1), section 17(1)-(4), section 18(1) and (2), section 21(1)(ii), section 23(1) and sections 26-28, 31, 33 and 68. If the rightholder does not comply with the order within 4 weeks from the decision of the Tribunal, the user may circumvent the effective technological measure, notwithstanding the provision of section 75 c(1).

Norway's Section 53(b) provides:

Rightholders shall ensure that beneficiaries who have legal access to a protected work, without hinder by an effective technological protection measure, can use the work, hereunder produce new copies, pursuant to sections 13a, 15, 16, 17, 17a, 21, 26-28 and 31.  If the rightholder after a petition from a beneficiary of a section listed above fails to provide access as described in the first paragraph, he can, on the beneficiary’s petition, be ordered to provide such information that is necessary to enable the work to be used in accordance with the objective.

The closest Bill C-61 comes to this kind of provision is Section 41.2(2)(b), which provides that the Governor in Council may make regulations

requiring the owner of the copyright in a work, a performer ’s performance fixed in a sound recording or a sound recording that is protected by a technological measure to provide access to the work, performer’s performance fixed in a sound recording or sound recording to persons who are entitled to the benefit of any of the limitations on the application of paragraph 41.1(1)(a) prescribed under paragraph (a). The regulations may prescribe the manner in which, and the time within which, access is to be provided, as well as any conditions that the owner of the copyright is to comply with.

In other words, the government can require a copyright owner to provide access, but there is no system that gives users the right to demand such access in appropriate circumstances.  Bill C-61 should be amended to provide an independent, accessible method to require companies that use DRM to unlock content in appropriate circumstances.

It is not an infringement of copyright for a person, at the request of a person with a perceptual disability, or for a non-profit organization acting for his or her benefit, to

Bill C-61 includes an anti-circumvention exception for perceptual disabilities that seeks to mirror Section 32.  However, the provision suffers from the same shortcoming as the privacy exception.  While there is an exception for the act of circumvention, access to devices that can be used to circumvent again comes with the restriction that a person can offer circumvention devices or services only "to the extent that the services, technology, device or component do not unduly impair the technological measure."

The notion of not unduly impairing the TPM is even more non-sensical in this context given that the whole point of circumventing is to provide access to the content for those with perceptual disabilities.  The content will obviously be in the clear since that is what is needed to provide the necessary access. The limitation on devices and services here makes absolutely no sense unless the real aim to stop those with perceptual disabilities from obtaining access. Not only should the "unduly impair" wording be removed, but the bill should place a positive obligation on those companies that use DRM to circumvent their technological measure where requested to do so for access for those with perceptual disabilities.