James Gannon's IP Blog

So copyright is big news again.

Shortly after the Copyright Amendment Act (Bill C-32) was tabled yesterday, mainstream news outlets began running stories trying to summarize the myriad of changes to Canadian copyright law proposed in the Bill. Surprisingly, many news stories chose to highlight above all the provisions in the Bill related to Technological Protection Measures (TPMs) – or “digital locks” as they’re being called.  What makes this sudden attention to TPM protection so surprising is that these sections of the new Bill are largely unchanged since the last proposed copyright reform Bill in 2008, Bill C-61.

What is perhaps less surprising is that these stories about “digital locks laws” are replete with misconceptions and misinterpretations of both the technology at issue and the proposed laws themselves. So in an effort to counter the fear, uncertainty and doubt that is being propagated regarding these proposed laws, I have compiled my “Top 5 Myths About the New Copyright Bill and Digital Locks”:

Myth #1: The laws protecting digital locks were copied from the U.S.

This is perhaps the biggest myth surrounding these new laws that has been sadly reported in many media outlets. There is absolutely no basis to the claim that the digital lock protections in Bill C-32 were copied or modelled from the American Digital Millennium Copyright Act or any other American law.

The reality is that the genesis for these digital lock provisions goes back to WIPO (the intellectual property branch of the UN) treaties that Canada signed back in 1997 along with 87 other countries. The treaties stipulated that countries provide effective legal remedies against the circumvention of digital locks:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

The United States ratified this article of the treaty with the digital lock protections in the DMCA in 1999. European countries have enacted protections for digital locks pursuant to their 2001 Copyright Directive, also modeled after the WIPO treaties’ requirements. In the 13 years since the WIPO treaties were signed, around 70 countries have enacted laws protecting digital locks on copyright works.

As an example, here is Article 37/1 of the Law on Copyright and Neighbouring Rights of the Republic of Moldova:

(1) The following actions, whether or not infringing, in any way, the copyright or the neighbouring rights as a  result of their performance, shall be deemed infringements of the legislation of the Republic of Moldova on copyright and neighbouring rights:

a) circumvention of technical means of copyright and neighbouring rights protection;

Protection for digital locks in the Ukraine (Article 50) is certainly not weak either:

Copyright and (or) related rights infringements that give grounds for seeking remedies shall be:

[…]

f) any actions for the intentional circumvention of technical means of protection and (or) related rights, in particular the production, distribution, importation for distribution and use of means of circumvention;

The digital lock provisions in the new Canadian copyright bill will inevitably resemble the similar laws that have been passed by the scores of other countries that have ratified the WIPO treaties in the last 13 years. However, they are in no way copied or directly modeled after any one country’s laws. The digital locks protections in Bill C-32 simply represent a made-in-Canada approach to WIPO ratification.

Myth #2: The laws protecting digital locks are the strictest in the world

This is also false. In two important ways, the digital lock provisions in Bill C-32 are actually more permissive than those found in other countries. First, the provisions in Bill C-32 contained a number of exceptions that aren’t found in other countries (see Myth #3),  and second, the protections specifically permit circumventing digital locks that prevent copying of works (see Myth #4).

In fact, when you compare the laws proposed on Wednesday with those of Canada’s major trading partners, it looks like we’re quite comparable to the international approaches, if not more permissive:

This is a far, far cry from those who have described the Bill as the “most anti-consumer copyright bill in Canadian history”.

As the chart above shows, should Bill C-32 be enacted, it appears as though Canada will provide domestic and international artists with the similar kind of protections that Canadian artists enjoy in the rest of the world when it comes to digital locks.

Myth #3: The laws protecting digital locks will “trump” all other laws and apply without exception

Here is another area where I think there has been a big gap in the reporting on this issue. Section 47 of Bill C-32, a.k.a. the “digital locks laws”, contains no fewer than eight exceptions that explicitly allow circumvention. In addition, there is a provision that specifically allows the Government to include new exceptions through regulation. Not only that, but the existing exceptions for copyright infringement will still apply, digital lock or not (see Myth #4).

The exceptions in Bill C-32 include law enforcement and national security:

41.11 (1) Paragraph 41.1(1)(a) does not apply if a technological measure is circumvented for the purposes of an investigation related to the enforcement of any Act of Parliament or any Act of the legislature of a province, or for the purposes of activities related to the protection of national security.

Interoperability of computer programs:

41.12 (1) Paragraph 41.1(1)(a) does not apply to a person who owns a computer program or a copy of it, or has a licence to use the program or copy, and who circumvents a technological measure that protects that program or copy for the sole purpose of obtaining information that would allow the person to make the program and any other computer program interoperable.

Encryption research:

41.13 (1) Paragraph 41.1(1)(a) does not apply to a person who, for the purposes of encryption research, circumvents a technological measure by means of decryption

Protection of personal information:

41.14 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological measure if  (…) the only purpose of circumventing the technological measure is to verify whether it permits the collection or communication of personal information and, if it does, to prevent it.

Security:

41.15 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological measure that is subject to that paragraph for the sole purpose of, with the consent of the owner or administrator of a computer, computer system or computer network, assessing the vulnerability of the computer, system or network or correcting any security flaws.

Perceptual disabilities:

41.16 (1) Paragraph 41.1(1)(a) does not apply to a person with a perceptual disability who circumvents a technological measure for the sole purpose of making a work, a performer’s performance fixed in a sound recording or a sound recording perceptible to that person [or someone who assists that person]

Broadcasting:

41.17 Paragraph 41.1(1)(a) does not apply to a broadcasting undertaking that circumvents a technological measure for the sole purpose of making an ephemeral reproduction of a work, a performer’s performance fixed in a sound recording or a sound recording in accordance with section 30.9

Radio apparatus:

41.18 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological protection measure on a radio apparatus for the sole purpose of gaining access to a telecommunications service by means of the radio apparatus.

The provisions protecting digital locks in the new copyright Bill are not in any way unduly restrictive. If anything, the laws contain greater exceptions than what we see around the world.

Myth #4: The laws protecting digital locks will trump the fair dealing exception

This myth is not at all accurate. In fact, the Bill was very carefully drafted to avoid this exact scenario. Unfortunately, to understand why requires a bit closer look at the actual Bill than simply scanning over Michael Geist’s summary (which should be taken with a grain of salt on this issue given his close affiliation with video game hacking groups who stand to lose the most from these laws).

The actual text of Bill C-32 breaks down “technological protection measures” into two categories: (a) technologies that control access to a work and (b) technologies that control copying of a work:

“technological protection measure” means any effective technology, device or component that, in the ordinary course of its operation,

(a) controls access to a work, to a performer’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner; or

(b) restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19.

Now if you look closely at the prohibition against circumventing (or “breaking”) the digital locks, you can see that the prohibition against breaking digital locks only applies to the first category of locks:

41.1 (1) No person shall:

(a) circumvent a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure” in section 41;

In other words, there is no blanket prohibition against circumventing copy-control protection measures. This means, contrary to what you might read, that there is nothing in the Bill that causes these “digital locks laws” to somehow “trump” any of the existing fair dealing exceptions (making copies for the purpose of research, private study, news reporting, criticism, and review) or the new parody and satire fair dealing exception (s.21 of Bill C-32).

The laws protecting digital locks in the new Bill very carefully and intentionally carved out the prohibition against devices that control copying of a work. Of course, you must still have obtained and accessed the work legally, but once you have legal access to a work, there is no provision in the new Bill that would prevent you from making use of the fair dealing copyright exceptions, digital lock or not.

Myth #5: Protections for digital locks will stifle innovation and hurt consumers

In many ways, protections for digital locks encourage the development of business models and distribution platforms that would not exist without such protections. Rather than harming consumers, evidence from around the world shows that these offerings tend to provide a greater choice of digital products.

Countries have had laws protecting digital locks for over a decade now. The experience has generally shown that these laws have lead to more rather than less choice for consumers – legal choices that is. Many of the innovative digital distribution services that have flourished around the world recently, such as Spotify for music and Hulu for video, are not currently being offered in Canada, partly because Canada cannot guarantee that our copyright laws will protect their distribution models. The evidence from countries that do protect digital locks is clear: ensuring adequate protection for digital media encourages more rather than less availability of digital goods on the legal market.

Many of the news reports on Bill C-32 seem to suggest that protecting digital locks will somehow “trump” the new exceptions for format shifting (e.g. moving music from your computer to your iPod) or time shifting (e.g. PVR recording). Once again, evidence from countries that currently protect digital locks has shown that this is not at all the case. Quite to the contrary, all of these new digital technologies like MP3 players and PVRs were first invented and popularized in countries that protected digital locks (U.S., Japan, Europe). Seems hard to argue that the digital locks provisions in Bill C-32 will stifle the use of technologies that were themselves created in countries that offer similar protection.

Canada recently placed 14th out of 17 developed nations in a ranking of innovative countries. All 13 countries ahead of us (Switzerland, Ireland, U.S., Japan, Sweden, Germany, U.K., Netherlands, Finland, France, Denmark, Belgium and Austria) have enacted protections for digital locks. I’m not suggesting there’s a direct correlation, but neither is 13 out of 13 a coincidence.

Evidence from the rest of the world shows that protecting digital locks leads to new and exciting distribution technologies that take advantage of these protections. This in turn leads to greater choice and availability of digital products for consumers. It’s an obvious win for both creators and consumers which is why every one of Canada’s major trading partners has enacted similar protections. The fear, uncertainty and doubt that has been propagated regarding these laws in the last few days has been troubling and I hope these myths have been finally put to rest here.

Update: Some have challenged my ability to comment on digital locks or TPMs by pointing out that I am a lawyer rather than a computer scientist. Before going to law school, I obtained degree in Systems Design Engineering from the University of Waterloo. I’ve worked in software development for a large multinational company, a small independent company, a public institution and freelance. I’ve worked both on proprietary software products and open source projects. I even worked part-time on a couple development projects during law school to help with the bills.