James Gannon's IP Blog

Once again, it seems that the issue of TPMs (or “digital locks”) has become one of the main focus point of the new copyright bill, Bill C-11. And, once again, the reporting on the TPM provisions of Bill C-11, which like the remainder of the Bill remains unchanged from last year’s Bill C-32, is replete with inaccurate and incomplete descriptions of those provisions.

In order to clear up confusion, I have re-posted below one of the most popular posts from my blog, titled “TPMs: A comprehensive guide for Canadian copyright law”. See also some other posts I wrote on Bill C-32′s TPM provisions, which would all apply equally to Bill C-11:

• Top 5 Myths About the New Copyright Bill and Digital Locks
• University of Toronto Presentation on TPMs and DRM
• Bill C-32 TPM Provisions: What Do the WIPO Treaties Require?
• Charlie Angus’ C-32 Blunder
• Toronto Star article on art, culture, TPMs and Bill C-32
• Bill C-32 – User Exceptions and Digital Locks

Based on last week’s debate in the House of Commons, it appears as though one of the more contentious elements of Bill C-32, the Copyright Amendment Act, are the provision pertaining to digital locks, or technological protection measures (“TPMs”) as they’re called in the Bill. Although I earlier pointed to many errors the NPD critic made with respect to these provisions, in fairness the debate surrounding Bill C-32′s TPM provisions contained a number of persistent misunderstandings by most commentators. In an effort to help ground these debates in the actual content of the Bill and the proposed TPM circumvention laws, below is my attempt at a plain explanation of the relevant clauses in Bill C-32.

Summary of Bill C-32 TPM Provisions

The crux of the TPM provisions can be summarized as follows:

• A technological protection measure (TPM) is a device that a copyright holder uses to (A) control access to a creative work or (B) prevent copying of a creative work (s.41)
• It is an infringement of copyright to circumvent a TPM, but only if it restricts access to a work as in (A) above. There is no restriction on the act a circumventing a copy-control TPM under the definition of (B) above (s.41.1(1)(a)).
• It is an infringement of copyright to provide circumvention services (s.41.1(1)(b)) or provide circumvention devices (s.41.1(1)(c)) for both definitions of TPMs in (A) and (B) above.
• There are eight exceptions to the circumvention prohibition and the government can enact new exceptions through regulation as needed (s.41.21).
• There are no statutory damages (i.e. “default damages” of $100-$5000 per infringement) for circumventing a TPM for private purposes (s.41.1(3)). Those found to have circumvented a TPM for private purposes will only have to reimburse the copyright holder for the damage caused by their act of circumvention (s.41.1(4)).
• Large-scale, commercial and purposeful infringement of TPMs is punishable as a criminal offense (s.42(3.1)), except for libraries, archives, museums or educational institutions.
• Libraries, archives, museum and educational institutions will pay no damages if they had reasonable grounds to believe their actions did not violate the TPM provisions (s.41.2)

Exceptions

Bill C-32 contains 8 exceptions that allow circumventing a TPM for a certain purpose:

• Law enforcement and national security (s.41.11)
• Interoperability of computer programs (s.41.12)
• Encryption research (s.41.13)
• Protection of personal information (s.41.14)
• Security of computer system or network (s.41.15)
• Persons with perceptual disabilities (s.41.16)
• Broadcasting undertakings (s.41.17)
• Radio apparatus (e.g. cell phone carrier restrictions) (s.41.18)

In addition, the government can, at any time through regulation:

• Prescribe that a certain class of TPMs will not be protected under these provisions (s.41.21(1))
• Prescribe a new exception to allow circumvention for a particular purpose (s.41.21(2)(a))
• Require a copyright owner who limits access to a work through TPMs to allow access (s.41.21(2)(b))

Few other countries, including the US, have included such wide-ranging abilities for amendment through regulation in their TPM-protection laws.

WIPO Requirements

There was a lot of debate last week regarding what the WIPO Internet Treaties required in terms of protection for TPMs. As I set out in my blog post on the subject, the requirements (which are met by Bill C-32) are as follows:

• The laws must prohibit circumvention devices of both access-control and copy-control TPMs
• The laws must prohibit the act of circumventing a TPM, as well as providing circumvention services or manufacturing, importing and distributing circumvention tools
• The laws must not only prohibit devices whose sole purpose is TPM circumvention, but also those which are primarily designed and produced for such purposes
• The laws must not only prohibit an entire device which is of the nature just described, but also individual components or built-in special functions of devices

It has also been suggested that Canada could fulfill the WIPO Internet Treaties’ requirements by only prohibiting circumvention for an infringing purpose. Besides rendering the TPM provisions almost entirely redundant, this approach is widely regarded as failing to conform with the treaty obligations by, among others, one of the key architects of the treaties themselves. Mihály Ficsor and Barry Sookman have written extensively on this subject, see:

Others have also questioned the need to ratify the WIPO Internet Treaties at all. While the desire to fulfill Canada’s international commitments and the benefits that TPMs have shown to provide artists and creators are compelling reasons enough to enact robust protection for TPMs, the global nature of digital piracy also highlights the importance of these laws. Large-scale commercial pirates will take advantage of legal gaps wherever they are found. For years, as the lone holdout among the G7 in ratifying the WIPO Internet Treaties, Canada has encouraged the growth of domestic commercial piracy operations such as file-sharing services and TPM-circumvention tool manufacturers. The weak laws in Canada facilitated piracy on a global scale. Implementing the requirements of the WIPO Treaties will bring Canada in line with international standards that have been adopted amongst our trading partners and put an end to the era where Canada is known as the weakest link in global copyright enforcement.

Do the TPM provisions override the user exceptions?

Yes, under certain circumstances, the new user exceptions do not apply if the user circumvented a TPM in order to make a copy of the work.

Bill C-32 provides four new consumer exceptions to copyright law. These would allows users to create additional copies of works they purchase for the purpose of format shifting (s.29.22), time shifting (i.e. PVRs, s.29.23), backup copies (s.29.24) or a controversial exception to create non-commercial user-generated content (s.29.21). Under each exception, except for the user-generated content exception, the provision does not apply if the user circumvented a TPM in order to make the copy.

This condition is absolutely vital for the sustainability of certain business models that are increasingly being used for digital distribution. Without this condition, the technologies that enable certain business models such as ad-supported streaming (i.e. YouTube), trial software, digital rentals and previews are completely undermined. I’ve written more on the subject explaining why user exceptions must not override protection for TPMs.

Do the TPM provisions override fair dealing?

No. Perhaps the greatest myth surrounding the TPM provisions in Bill C-32 is that these would override or “trump” the fair dealing defense.  It then bears repeating: there is nothing in Bill C-32 (and specifically in the TPM provisions) that would inhibit a user’s right to copy works under the fair dealing defense.

As noted above, the circumvention prohibition in Bill C-32 only applies to devices that control a user’s access to a work. Circumventing a TPM that prevents copying a work is permitted under Bill C-32.

Fair dealing is a defense to copyright infringement. It allows users to make fair copies of portions of a work for certain purposes. It does not grant any user a right to free access to that work. A researcher must still legally obtain access to a work in order to make a fair dealing copy. As was noted by a US court “it is not permissible to break into a locked room in order to make fair use of a manuscript kept inside”.

For example, if an academic article was only being provided behind a “paywall” (where the reader must pay a certain amount to access the article), users desiring to make fair dealing copies would still have to pay to access the article. However, once the content is legally accessed or acquired, users could circumvent any technology that prevents them from making fair dealing copies of the text of the article.

Despite the Bill’s clear distinction between access and copy control circumvention, some misunderstanding still persists. Therefore, I repeat: nothing in Bill C-32 prevents users from making fair dealing copies of works they have legally obtained.

Big picture on TPMs

One advantage of having been the holdout in implementing legal protection for TPMs is that Canada has the benefit of observing its effect in countries where protection has often been in place for over a decade. What has not occurred in Europe, Australia, the US and Asia are the cataclysmic predictions of “digital lockdown” when in fact many new and innovative digital media distribution services have emerged in these countries (and have been largely absent from Canada).

Ultimately, the use of TPMs to protect media remains a choice of the artist and distributor; and the decision to purchase protected media remains entirely with the consumer (with many works now being made available in a number of formats subject to more or less protection). Although Parliamentarians may disagree on where the appropriate balance is to be struck between legal protection for TPMs and user exceptions, what is most important is that these decisions are centered around the actual provisions of the proposed law rather than unsubstantiated assertions.