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copyright for canadians

Monday August 18, 2008
61 Reforms to C-61, Day 41: ISP Notice and Notice - Mandatory Data Retention
One of Bill C-61's few good points is the notice-and-notice approach for Internet Service Provider liability. The notice and notice system involves a notification from a copyright holder - often involving movies, software or music - claiming that a subscriber has made available or downloaded content without authorization.  The ISP forwards the notification to the subscriber but takes no other action - it does not pass along the subscriber's personal information, remove the content from its system, or cancel the subscriber's service.  It falls to the subscriber to act and experience indicates that many remove the infringing content (if indeed it is infringing) voluntarily.  If ISPs comply this approach, they qualify for a statutory safe harbour such that they will not face monetary damages (though they may be ordered to remove content).  Failure to comply with the approach can bring liability of up to $10,000 in statutory damages. This is the same approach that was proposed in Bill C-60 and that has been used on an informal basis in Canada for several years with groups like the Business Software Alliance acknowledging its effectiveness. The rationale for sticking with notice-and-notice rather than the U.S.-style notice-and-takedown becomes even more compelling in light of the U.S. experience.  Studies have demonstrated that notice-and-takedown is flawed, open to abuse, and may lead to improper claims of infringement.  While there may be pressure from the U.S. and lobby groups to move toward notice-and-takedown, the experience to-date provides plenty of reasons why that would be a mistake. While the overall approach is a good one, there is some room for improvement.  First, as pointed out in the policy position on C-61 adopted by the British Columbia Civil Liberties Association, the approach creates new data retention requirements with no judicial oversight.  In order to qualify for the statutory safe harbour ISPs are required to retain customer data for six months from the time they receive the complaint (they retain for up to a year if the complainant launches a legal action).  While there is a need to retain some data for this system to work, six months is a long period of time -- shorter periods and some form of oversight should be considered.
61 reforms, day 41

One of Bill C-61's few good points is the notice-and-notice approach for Internet Service Provider liability. The notice and notice system involves a notification from a copyright holder - often involving movies, software or music - claiming that a subscriber has made available or downloaded content without authorization.  The ISP forwards the notification to the subscriber but takes no other action - it does not pass along the subscriber's personal information, remove the content from its system, or cancel the subscriber's service.  It falls to the subscriber to act and experience indicates that many remove the infringing content (if indeed it is infringing) voluntarily.  If ISPs comply this approach, they qualify for a statutory safe harbour such that they will not face monetary damages (though they may be ordered to remove content).  Failure to comply with the approach can bring liability of up to $10,000 in statutory damages.

This is the same approach that was proposed in Bill C-60 and that has been used on an informal basis in Canada for several years with groups like the Business Software Alliance acknowledging its effectiveness. The rationale for sticking with notice-and-notice rather than the U.S.-style notice-and-takedown becomes even more compelling in light of the U.S. experience.  Studies have demonstrated that notice-and-takedown is flawed, open to abuse, and may lead to improper claims of infringement.  While there may be pressure from the U.S. and lobby groups to move toward notice-and-takedown, the experience to-date provides plenty of reasons why that would be a mistake.

While the overall approach is a good one, there is some room for improvement.  First, as pointed out in the policy position on C-61 adopted by the British Columbia Civil Liberties Association, the approach creates new data retention requirements with no judicial oversight.  In order to qualify for the statutory safe harbour ISPs are required to retain customer data for six months from the time they receive the complaint (they retain for up to a year if the complainant launches a legal action).  While there is a need to retain some data for this system to work, six months is a long period of time -- shorter periods and some form of oversight should be considered.

Friday August 15, 2008
61 Reforms to C-61, Day 40: TPMs - No Regular Review Process
The U.S. DMCA experience leaves little doubt that the introduction of anti-circumvention legislation will create some unintended consequences.  No matter how long the list of circumvention rights and other precautionary measures, it is impossible to identify all future concerns associated with anti-circumvention legislation.  The U.S. DMCA addresses this by establishing a flawed tri-annual review process.  The system has not worked well, creating a formidable barrier to new exceptions and long delays to address emerging concerns. As bad as the U.S. system is, the proposed Canadian system under Bill C-61 is worse since there is no mandated review of the exceptions at all.  Instead, Canada gets a flexible process that will allow the government to consider new exceptions if and when it sees fit.  In other words, the same government that brought you the Canadian DMCA will decide if there is a need to add any exceptions. Section 41.2 (1) provides that:

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.

61 reforms, day 40

The U.S. DMCA experience leaves little doubt that the introduction of anti-circumvention legislation will create some unintended consequences.  No matter how long the list of circumvention rights and other precautionary measures, it is impossible to identify all future concerns associated with anti-circumvention legislation.  The U.S. DMCA addresses this by establishing a flawed tri-annual review process.  The system has not worked well, creating a formidable barrier to new exceptions and long delays to address emerging concerns.

As bad as the U.S. system is, the proposed Canadian system under Bill C-61 is worse since there is no mandated review of the exceptions at all.  Instead, Canada gets a flexible process that will allow the government to consider new exceptions if and when it sees fit.  In other words, the same government that brought you the Canadian DMCA will decide if there is a need to add any exceptions. Section 41.2 (1) provides that:

Wednesday August 13, 2008
61 Reforms to C-61, Day 38: TPMs - No DRM Regulatory Authority
One of the ongoing concerns with anti-circumvention provisions is the prospect that the legal rules create incentives to use - and possibly misuse - DRM.  France, which many people hold up as an example of a country that prioritizes copyright and creator protection, has many of the same concerns about DRM misuse and the lack of interoperability.  Its copyright law establishes a DRM authority which is charged with ensuring interoperability. The authority is an independent administrative body focused on DRM.  It submits an annual report to the government and may appear before parliamentary committees on future copyright law reforms.  The creation of a specific body to address these issues is an acknowledgement of the need for regular review of concerns arising from the use of DRM supported by anti-circumvention legislation.  Bill C-61 contains no such acknowledgement or awareness of the prospect of unintended consequences from this legislation.
61 reforms, day 38

One of the ongoing concerns with anti-circumvention provisions is the prospect that the legal rules create incentives to use - and possibly misuse - DRM.  France, which many people hold up as an example of a country that prioritizes copyright and creator protection, has many of the same concerns about DRM misuse and the lack of interoperability.  Its copyright law establishes a DRM authority which is charged with ensuring interoperability. The authority is an independent administrative body focused on DRM.  It submits an annual report to the government and may appear before parliamentary committees on future copyright law reforms.  The creation of a specific body to address these issues is an acknowledgement of the need for regular review of concerns arising from the use of DRM supported by anti-circumvention legislation.  Bill C-61 contains no such acknowledgement or awareness of the prospect of unintended consequences from this legislation.

Tuesday August 12, 2008
61 Reforms to C-61, Day 37: TPMs - No Requirement to Unlock for Exceptions
Many countries have recognized the danger that combination of DRM and anti-circumvention legislation may effectively eliminate user rights or copyright exceptions in the digital environment.  Creating exceptions is one way to address the issue, but another is to adopt an approach of "with rights comes responsibilities."  In this case, if companies are going to obtain new legal rights for DRM, they must also shoulder the responsibility of unlocking their content when requested to do so by users for legal purposes.  This is a common theme in copyright laws around the world which often identify courts, tribunals or mediators as the source to ensure that rightsholders do not use DRM to eliminate user rights.  Three examples of many:

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.

61 reforms, day 37

Many countries have recognized the danger that combination of DRM and anti-circumvention legislation may effectively eliminate user rights or copyright exceptions in the digital environment.  Creating exceptions is one way to address the issue, but another is to adopt an approach of "with rights comes responsibilities."  In this case, if companies are going to obtain new legal rights for DRM, they must also shoulder the responsibility of unlocking their content when requested to do so by users for legal purposes.  This is a common theme in copyright laws around the world which often identify courts, tribunals or mediators as the source to ensure that rightsholders do not use DRM to eliminate user rights.  Three examples of many:

Monday August 11, 2008
61 Reforms to C-61, Day 36: TPMs - No Identification of Authorized Circumventers
The removal of the provisions that target the legality of circumvention devices is one way to help ensure that the law does not eliminate basic copyright user rights.  There are other approaches, however, that can be introduced in tandem with that change. New Zealand's new copyright law introduces the concept of "qualified circumventers." The law grants special rights to trusted third parties who are permitted to circumvent on behalf of other users who are entitled to circumvent but technically unable to do so.  The current list of qualified circumventers includes librarians, archivists, and educational institutions. Section 226E(2) of the New Zealand law provides that The user of a TPM work who wishes to exercise a permitted act under Part 3 but cannot practically do so because of a TPM may do either or both of the following: (a) apply to the copyright owner or the exclusive licensee for assistance enabling the user to exercise the permitted act: (b) engage a quali?ed person to exercise the permitted act on the user ’s behalf using a TPM circumvention device, but only if the copyright owner or the exclusive licensee has refused the user's request for assistance or has failed to respond to it within a reasonable time. This approach rightly recognizes that many people will be unable to effectively use the exceptions inserted into the law.  By creating a class of trusted circumventers, the law creates at least one mechanism to ensure that users retain their existing copyright rights.
61 reforms, day 36

The removal of the provisions that target the legality of circumvention devices is one way to help ensure that the law does not eliminate basic copyright user rights.  There are other approaches, however, that can be introduced in tandem with that change. New Zealand's new copyright law introduces the concept of "qualified circumventers." The law grants special rights to trusted third parties who are permitted to circumvent on behalf of other users who are entitled to circumvent but technically unable to do so.  The current list of qualified circumventers includes librarians, archivists, and educational institutions. Section 226E(2) of the New Zealand law provides that

The user of a TPM work who wishes to exercise a permitted act under Part 3 but cannot practically do so because of a TPM may do either or both of the following:

(a) apply to the copyright owner or the exclusive licensee for assistance enabling the user to exercise the permitted act:
(b) engage a quali?ed person to exercise the permitted act on the user ’s behalf using a TPM circumvention device, but only if the copyright owner or the exclusive licensee has refused the user's request for assistance or has failed to respond to it within a reasonable time.

This approach rightly recognizes that many people will be unable to effectively use the exceptions inserted into the law.  By creating a class of trusted circumventers, the law creates at least one mechanism to ensure that users retain their existing copyright rights.

Monday August 4, 2008
61 Reforms to C-61, Day 31: TPMs - Restrictions for Canadians with Perceptual Disabilities
Bill C-61 has the potential to impede access for all Canadians; however, one group may be particularly hard hit by widespread DRM use and the bill's anti-circumvention provisions.  Those with print disabilities (called perceptual disabilities in the Copyright Act) rely on new voice technologies to gain access to works that they are physically unable to view.  DRM can be used to limit or eliminate the use of technologies to read text aloud, thereby rendering it inaccessible for a segment of the population.  Indeed, for those that think this is a mere fairy tale, one of the better known instances of "read aloud" restrictions involved the Adobe eReader, which restricted the reading aloud function for Alice in Wonderland. The Copyright Act contains a specific provision to address access for the print disabled. Section 32(1) provides that:


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

(a) make a copy or sound recording of a literary, musical, artistic or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability;

(b) translate, adapt or reproduce in sign language a literary or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability; or

(c) perform in public a literary or dramatic work, other than a cinematographic work, in sign language, either live or in a format specially designed for persons with a perceptual disability.


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.

61 reforms, day 31

Bill C-61 has the potential to impede access for all Canadians; however, one group may be particularly hard hit by widespread DRM use and the bill's anti-circumvention provisions.  Those with print disabilities (called perceptual disabilities in the Copyright Act) rely on new voice technologies to gain access to works that they are physically unable to view.  DRM can be used to limit or eliminate the use of technologies to read text aloud, thereby rendering it inaccessible for a segment of the population.  Indeed, for those that think this is a mere fairy tale, one of the better known instances of "read aloud" restrictions involved the Adobe eReader, which restricted the reading aloud function for Alice in Wonderland.

The Copyright Act contains a specific provision to address access for the print disabled. Section 32(1) provides that:

Friday August 1, 2008
61 Reforms to C-61, Day 30: TPMs - Anti-circumvention and Privacy
The inclusion of a privacy exception within Bill C-61's anti-circumvention provisions was not particularly surprising given that the U.S. DMCA includes one and there has been mounting concern about the privacy implications of DRM.  The issue has captured the attention of the Canadian privacy community for the past few years.  In 2006, a group of privacy and civil liberties organizations and experts sent a public letter to the responsible ministers calling for assurances that: any proposed copyright reforms will prioritize privacy protection by including a full privacy consultation and a full privacy impact assessment with the introduction of any copyright reform bill; any proposed anti-circumvention provisions will create no negative privacy impact; and any proposed copyright reforms will include pro-active privacy protections that, for example, enshrine the rights of Canadians to access and enjoy copyright works anonymously and in private. The group (of which I am a member) sent a follow-up letter earlier this year as did Privacy Commissioner of Canada Jennifer Stoddart, who posted a public letter expressing concern that copyright reform could have a negative impact on privacy. Given those concerns, an exception to protect personal information is not unexpected. However, Section 41.14 fails to provide Canadians with full privacy protection and Bill C-61 unquestionably makes it more difficult for Canadians to effectively protect their privacy.

The reason for this is that though there is an exception that permits circumvention to protect (and prevent the collection or communication of) personal information, the ability to exercise this exception is rendered difficult by virtue of the inability to legally obtain devices (ie. software programs) for this very purpose.  Section 41.14(2) states that a person can offer circumvention devices or services for the protection of personal information only "to the extent that the services, technology, device or component do not unduly impair the technological measure."

Bill C-61 does not include a definition of "unduly impair."  However, according to an Industry Minister official (who was responding to a journalist inquiry):

"The intent of the provision is to ensure that while individuals may obtain devices and services that circumvent technological measures with a view to protecting privacy, any ensuing circumvention of the technological measure cannot be done in a manner that would enable unauthorised uses of the underlying copyright material by that person or by a third party."

In other words, you can use a circumvention device to protect your privacy but it cannot allow you to simultaneously access the underlying content.  Of course, once most circumvention devices circumvent a technological measure, the protected content will be in the clear.  Distribution of this form of device is therefore illegal.  Moreover, service providers will be likely be unwilling to use this provision for fear of facing liability.  Not only should the "unduly impair" wording be removed, but the bill should place a positive obligation on those companies that use DRM that may raise privacy concerns to provide the keys to circumvent their technological measure where requested to do so for privacy purposes.

61 reforms, day 30

The inclusion of a privacy exception within Bill C-61's anti-circumvention provisions was not particularly surprising given that the U.S. DMCA includes one and there has been mounting concern about the privacy implications of DRM.  The issue has captured the attention of the Canadian privacy community for the past few years.  In 2006, a group of privacy and civil liberties organizations and experts sent a public letter to the responsible ministers calling for assurances that:

  1. any proposed copyright reforms will prioritize privacy protection by including a full privacy consultation and a full privacy impact assessment with the introduction of any copyright reform bill;
  2. any proposed anti-circumvention provisions will create no negative privacy impact; and
  3. any proposed copyright reforms will include pro-active privacy protections that, for example, enshrine the rights of Canadians to access and enjoy copyright works anonymously and in private.

The group (of which I am a member) sent a follow-up letter earlier this year as did Privacy Commissioner of Canada Jennifer Stoddart, who posted a public letter expressing concern that copyright reform could have a negative impact on privacy. Given those concerns, an exception to protect personal information is not unexpected. However, Section 41.14 fails to provide Canadians with full privacy protection and Bill C-61 unquestionably makes it more difficult for Canadians to effectively protect their privacy.

Monday July 28, 2008
61 Reforms to C-61, Day 26: TPMs - Encryption Research Exception Requires Notice
As discussed in the last entry, Bill C-61 includes an exception for encryption research much like the U.S. DMCA.  The U.S. DMCA exception has been widely criticized as providing insufficient legal protection for legitimate encryption research, leading to significant concerns in the research community about the prospect for liability.  The Canadian provision is little better.  In both cases it requires the researcher to inform the target about plans for circumvention for research purposes.  The Canadian bill substitutes a requirement of "good faith effort to obtain authorization" in the U.S. law for a notice requirement ("the person has informed the owner of the copyright in the work . . . who has applied the technological measure"), notice and/or authorization are unnecessary and potentially chilling. The exception already includes a condition that "it would not be practical to carry out the research without circumventing the technological measure" and that the person has "lawfully obtained the work," so the researcher has a legal copy and must pass a necessity barrier.  The inclusion of an additional notice requirement should be dropped since it has little to do with copyright protection, yet creates a possible barrier for researchers who need to do encryption research without telegraphing their plans to the target organization.
61 reforms, day 26

As discussed in the last entry, Bill C-61 includes an exception for encryption research much like the U.S. DMCA.  The U.S. DMCA exception has been widely criticized as providing insufficient legal protection for legitimate encryption research, leading to significant concerns in the research community about the prospect for liability.  The Canadian provision is little better.  In both cases it requires the researcher to inform the target about plans for circumvention for research purposes.  The Canadian bill substitutes a requirement of "good faith effort to obtain authorization" in the U.S. law for a notice requirement ("the person has informed the owner of the copyright in the work . . . who has applied the technological measure"), notice and/or authorization are unnecessary and potentially chilling.

The exception already includes a condition that "it would not be practical to carry out the research without circumventing the technological measure" and that the person has "lawfully obtained the work," so the researcher has a legal copy and must pass a necessity barrier.  The inclusion of an additional notice requirement should be dropped since it has little to do with copyright protection, yet creates a possible barrier for researchers who need to do encryption research without telegraphing their plans to the target organization.

Friday July 25, 2008
61 Reforms to C-61, Day 25: TPMs - Research Exception Limited to Encryption and Security Testing
Bill C-61 includes two exceptions relevant for researchers: an exception at Section 41.13 limited to encryption research (unlike the U.S. DMCA, encryption research is not defined) and security testing at Section 41.15, which could be construed to include security research on computer or network vulnerabilities.  The impact of the anti-circumvention provisions will be felt by a research community far broader than just those involved in these two areas.  This past week, I met with several University of Ottawa researchers engaged in fields as diverse as biblical scholarship and engineering.  Their common thread is that their research plans will be stymied by Bill C-61.  Researchers that need to circumvent in order to access content for media criticism, search technologies, network content distribution, etc. will all find themselves unable to conduct their research.  Those that argue that Bill C-61 is unenforceable have never had their work subjected to an ethics review that invariably includes an examination of the legality of the methodology.  If the work fails the review, there will be no grant funding and the research simply stops. The exceptions for encryption and security testing are needed (though as drafted they too have shortcomings to be discussed shortly), however, the Canadian approach to exceptions has been to simply mirror the U.S. DMCA list.  A general research exception is essential if Canadian researchers are to be able to continue their work.
61 reforms, day 25

Bill C-61 includes two exceptions relevant for researchers: an exception at Section 41.13 limited to encryption research (unlike the U.S. DMCA, encryption research is not defined) and security testing at Section 41.15, which could be construed to include security research on computer or network vulnerabilities.  The impact of the anti-circumvention provisions will be felt by a research community far broader than just those involved in these two areas.  This past week, I met with several University of Ottawa researchers engaged in fields as diverse as biblical scholarship and engineering.  Their common thread is that their research plans will be stymied by Bill C-61.  Researchers that need to circumvent in order to access content for media criticism, search technologies, network content distribution, etc. will all find themselves unable to conduct their research.  Those that argue that Bill C-61 is unenforceable have never had their work subjected to an ethics review that invariably includes an examination of the legality of the methodology.  If the work fails the review, there will be no grant funding and the research simply stops. The exceptions for encryption and security testing are needed (though as drafted they too have shortcomings to be discussed shortly), however, the Canadian approach to exceptions has been to simply mirror the U.S. DMCA list.  A general research exception is essential if Canadian researchers are to be able to continue their work.

Thursday July 24, 2008
61 Reforms to C-61, Day 24: TPMs - No Exclusion of Non-Infringing Access
Bill C-61's anti-circumvention approach ranks among the broadest of any statute in the world.  One area where it is particularly (over)broad is in its failure to exclude non-infringing access.  Under the current bill, Section 41.1(1) simply states that "no person shall circumvent a technological measure within the meaning of paragraph (a) of the definition of 'technological measure'".  Technological measure "means any effective technology, device or component that, in the ordinary course of its operation controls access to a work. . . " By using such a broad approach - any circumvention of any effective access control - the statute prohibits the circumvention of TPMs that have absolutely nothing to do with infringing copying.  The most obvious example of this comes from the region coding found on DVDs and many computer games.  Many DVDs include Macrovision (designed to stop copying a DVD to VHS), Content Scramble System or CSS (the subject of important litigation involving DeCSS, a software program created to allow Linux users to play DVDs since they were otherwise unable to do so due to CSS), and region coding.

The premise behind region coding is fairly straight-forward. With DVD region coding, the world is divided into eight regions (Canada and the U.S. form Region One).  Consumer electronics manufacturers have agreed to respect region coding within their products by ensuring that DVD players only play DVDs from a single region.  The net effect is that Canadian-purchased DVDs will play on Canadian-bought DVD players, but DVDs purchased in Europe, Australia, or Asia (all different regions), are unlikely to work on those same DVD players (with the exception of those DVDs that are region coded zero, which can be played worldwide). 

Note that the use of region coding has nothing to do with traditional notions of copyright law.  The underlying work may involve a copyrighted work - DVDs and video games regularly use region coding - yet the protection is designed to manipute markets by restricting the ability to use fully authorized copies of works.  Many countries have recognized this by specifically excluding non-infringing access controls from their anti-circumvention legislation.  For example, New Zealand's new copyright law includes a much different definition of technological measure, stating that:

for the avoidance of doubt, does not include a process, treatment, mechanism, device, or system to the extent that, in the normal course of operation, it only controls any access to a work for non-infringing purposes (for example, it does not include a process, treatment, mechanism, device, or system to the extent that it controls geographic market segmentation by preventing the playback in New Zealand of a non-infringing copy of a work)

Section 53a of Norway's anti-circumvention law states that the provisions shall not "hinder private users in gaining access to legally acquired works on that which is generally understood as relevant playback equipment," while Finland's law expressly permits circumvention for non-infringing uses of lawfully acquired copies.  The failure to include such a provision under Bill C-61 is a striking failure that must be remedied.

61 reforms, day 24

Bill C-61's anti-circumvention approach ranks among the broadest of any statute in the world.  One area where it is particularly (over)broad is in its failure to exclude non-infringing access.  Under the current bill, Section 41.1(1) simply states that "no person shall circumvent a technological measure within the meaning of paragraph (a) of the definition of 'technological measure'".  Technological measure "means any effective technology, device or component that, in the ordinary course of its operation controls access to a work. . . "

By using such a broad approach - any circumvention of any effective access control - the statute prohibits the circumvention of TPMs that have absolutely nothing to do with infringing copying.  The most obvious example of this comes from the region coding found on DVDs and many computer games.  Many DVDs include Macrovision (designed to stop copying a DVD to VHS), Content Scramble System or CSS (the subject of important litigation involving DeCSS, a software program created to allow Linux users to play DVDs since they were otherwise unable to do so due to CSS), and region coding.

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