James Gannon's IP Blog

Yesterday, the House of Commons debated Bill C-32, the Copyright Amendment Act. One aspect of the Bill that was brought up by members of Parliament for every party was the legal protection for digital locks (or “TPMs” as they’re called in the Bill) pursuant to Canada’s obligations under the WIPO Internet Treaties.

A statement from the debates that seemed to be often repeated by certain MPs was along the lines that half of the countries that have implemented the Treaties have not followed the implementation model of the DMCA in the United States. This is true. In fact, the only country to implement the WIPO Treaties’ TPM obligations exactly as in the DMCA was the United States itself. Since each country has a different legal framework , it’s virtually impossible for two countries to enact TPM laws in exactly the same way. Many countries, including most EU nations, in fact offer more robust protection for TPMs than what is found in the DMCA. Bill C-32 actually departs considerably from the legal protection for TPMs found in the US in that is has significant flexibility for the government to enact additional exceptions through regulation at any time.

So what then is meant by saying only half of the countries follow “the US model”? At no time did any member elaborate on what the “US model” exactly was, or what makes a set of TPM laws “US-style”. Certainly some implementations (Australia in particular) are quite close to what’s found in the DMCA, but where is this invisible – and incredibly hard to draw – line between “US” and “non-US” ratifiers?

I think the more important question for Parliamentarians is what do we know about requirements for WIPO TPM ratification? The basic requirement was set out in the WIPO-published “Guide to the Copyright and Related Rights Treaties Administered by WIPO”:

Contracting Parties may only be sure that they are able to fulfil their obligations under Article 11 of the Treaty if they provide the required protection and remedies:

(i) against both unauthorized acts of circumvention, and the so-called ‘preparatory activities’ rendering such acts possible (that is, against the manufacture, importation and distribution of circumvention tools and the offering of services for circumvention);

(ii) against all such acts in respect of both technological measures used for ‘access control’ and those used for the control of exercise of rights, such as ‘copy-control’ devices (it should be noted from this viewpoint that access control may have a double effect extending also to copy-control);

(iii) not only against those devices whose only – sole – purpose is circumvention, but also against those which are primarily designed and produced for such purposes, which only have a limited, commercially significant objective or use other than circumvention, or about which it is obvious that they are meant for circumvention since they are marketed (advertised, etc.) as such; and

(iv) not only against an entire device which is of the nature just described, but also against individual components or built-in special functions that correspond to the criteria indicated concerning entire devices.

So instead of asking whether or not Bill C-32 is following a “US-model” for TPM laws, what we should be asking is whether the current draft Bill is following a “WIPO-model”. I would challenge any of the MPs who made this statement yesterday to define what is meant by the “US-model” and what the proposed alternative would be. Any compliant implementation of the WIPO Treaties would inevitably bear some resemblance to the DMCA (and every other country’s implementation law), but also differ significantly in the way in which it’s integrated within the existing legal framework and the inclusion of exceptions. This is precisely the case with Bill C-32′s TPM provisions.

Over 60 countries, including every G7 country and each of our major trading partners, have fulfilled the treaties’ obligations for “adequate legal measures” and “effective legal protections” for digital locks. Bill C-32 offers a made-in-Canada approach to WIPO ratification that differs from other signatories’ approach (including the US) in its flexibility and list of exceptions. As a WIPO signatory nation (since 1997), ratification of the treaty obligations are imperative for Canada to reposition itself as a global digital leader.