James Gannon's IP Blog

Let’s clear up some of the confusion about copyright law and “digital locks”.

If you’ve been reading the press lately on the federal government’s latest attempt to reform Canadian copyright law, then it’s likely you’ve read about the government’s proposed legal protection for “digital locks”. And if you’ve been wondering exactly what a “digital lock” is, you’re not alone since nowhere in the government’s proposed copyright reform bill, Bill C-11, are the words “digital lock” actually used. Neither is it a common term in either the legal or technology fields. Instead, the ominous “digital locks” phrase was coined by opponents of these provisions, which is usually followed by begging the question of why our government would propose to legally protect these “digital locks”.

Step 1: Proper Terminology

Therefore, the first step in clearing the confusion should involve using the proper legal term for these technologies that are used to protect digital media. In Bill C-11, they’re referred to as “technological protection measures” or “TPMs” and similar terminology is used in scores of copyright laws all over the world. In Bill C-11, a TPM is defined as a device or program that either (a) controls access to or (b) restricts copying of a copyright-protected work.

Step 2: Treaty Obligations

The second step in understanding Bill C-11 and TPMs is to appreciate where these laws are coming from. About 15 years ago, 89 countries signed a pair of UN treaties (the “WIPO Treaties”) saying that each would enact effective legal protections for TPMs and make it illegal to either hack a TPM or sell a TPM-hacking device. Since then, 80 out of those 89 countries have come through with that commitment. But despite three previous attempts in the 00′s, it still remains on the Canadian federal government’s international to-do list. Other stragglers include Bolivia, Namibia, Nigeria and Venezuela. In other words, the TPM laws found in Bill C-11 are not without precedent, and virtually all of our major trading partners have enacted similar laws pursuant to these Treaties.

Step 3: Understanding Digital Technology

The third step in understanding TPMs is to know how and why they’re used. If you own a device that can play digital media (including a computer or a smartphone), then chances are you already interact with TPMs on a daily basis. A common example of TPMs are software serial numbers. Computer software is often sold along with a serial number or code that must be entered when installing the program. Once somebody has used a serial number to install a computer program, nobody else can use that number to install the same program. The point of serial numbers is to ensure that each person using the program pays the original developer for a copy of the software. Absent these numbers or other TPMs, software developers could theoretically only sell a single copy of their programs before everyone had a copy of it.

Evidence has clearly shown that TPMs are the reason online digital markets are now thriving. When Internet file-sharing technologies gained prominence in the late 90′s, content owners were understandably weary of releasing their works onto this wide open medium. Fast forward a decade and almost all media can be legally accessed one way or another through channels protected with TPMs. When you buy books through Kobo’s online store, their TPM lets you copy that book to your e-reader, smartphone, or computer, but it won’t let you send it to all of your friends. Movies purchased through iTunes contain TPMs that let you copy the movie on up to, but no more than, five Apple devices. The popular PC gaming platform Steam has a TPM that lets you play games you’ve purchased on any computer where you log into your Steam account, but you have to buy additional copies of games if you want to send them to friends. Even the major record labels are now making hit singles available for free on YouTube, subject to TPMs that require viewers to watch a short ad before accessing the song.

The amount of content that artists and other creators have now made available online through TPM-protected channels is staggering. It’s fair to say that TPMs have done more to encourage the dissemination of content online than all of the file-sharing technologies like Napster or BitTorrent combined. You don’t necessarily have to love the commercials that CTV or CBC make you watch before accessing shows on their websites to appreciate that, without them, these shows wouldn’t be (legally) available on the web in the first place.

Step 4: Trade Implications

The fourth step in understanding TPMs is to appreciate that it’s all about trade. Canada has always been a major player in the cultural industries. We export our music, movies, books, software and (increasingly) video games all over the world and in turn our diverse population consumes tonnes of foreign content. It is ironic that the technologies used to protect Canadian-made cultural products are subject to legal protections in virtually every country where they are exported but remain legal to hack here in Canada. Of course this rattles our trading partners and affects our positions in international trade negotiations. And of course it puts us in a tough spot negotiating the upcoming Canada-EU Trade Agreement.

Being the lone holdout among our trading partners in offering legal protections to TPMs has also fostered the growth of a TPM-hacking industry here in Canada. Small, back-room shops all across the country have made huge profits selling TPM-hacking chips and devices all over the world. In fact, much of the opposition to the TPM laws in Bill C-11 can be traced back to a coalition of these device exporters. Last year, during the government’s open consultation on copyright reform, the hacking tool makers pleaded with their customers to send letters to the Canadian government demanding that TPM-hacking remain legal in Canada. The government received thousands of these letters from all over the world.

It’s also no secret that a large number of these devices end up in the hands of American consumers – many of the Canadian TPM-hacking chip makers offer free shipping to anywhere in North America.  Of course this affects our standing to oppose US trade measures like “Buy American” policies. And of course the US will place Canada on international trade lists along with China, Pakistan and Russia as the countries lacking the most in intellectual property protection. It’s one thing to be known as a country that leads the world in illegally copying our trading partners’ products. It’s a whole other ballgame when we actually flood their domestic markets with Canadian-made piracy-enabling tools.

Step 5: International Standards

Finally, the fifth step in understanding TPMs and Bill C-11 is to appreciate the importance of international standards for TPM protection. Right now, Canada has been the proverbial “weakest link” in legal protection for TPMs and a global leader in TPM-hacking exports. This situation won’t change if we enact legal protections that fall short of the “adequate legal protection and effective legal remedies” standard required under the WIPO Treaties that the other 80 signatories have adhered to.

Critics of the TPM provisions in Bill C-11 often claim to have a “balanced” solution for TPM protection: to create an exception that allows hacking for legal purposes. The theory is that if I can legally copy a protected work, then I should also be able to legally hack any TPM protecting that work.  The problem here is that this would allow anyone to claim a copyright exception every time a TPM is hacked. For example, Bill C-11 creates new copying exceptions that would allow anyone, at any time, to create a backup copy of a copyright work. Therefore, it would also be an exception to the TPM laws for anyone, at any time, to hack a TPM claiming it was for the purpose of backup copying (or any of the other copyright exceptions). The net effect of this proposed “balanced” approach for TPM protection would be that, under Canadian law, it is illegal to hack a TPM unless it’s done by anyone, and unless it’s done at any time.  It would be like adding a exception to traffic laws saying it’s fine to break the speed limit if you say you’re in a hurry.

Of course, the proponents of this approach know that it would cause Canada to have a virtually unenforceable TPM protection law, which is probably why the hacking device exporters and their customers have been pushing so hard for its adoption. But I don’t see how we could, with a straight face, claim that this amounts to the effective legal protection for TPMs required under the WIPO Treaties. Out of the 80 WIPO-signatory countries with TPM provisions in force, only one other country (Switzerland) has tried to adopt anything close to such an approach, and even this has been criticized as failing to meet the standards of the Treaties.

Legal protection for TPMs is long overdue in Canada. As a nation that ought to be leading on such key trade-related matters, the biggest question we should be asking our government is why it took us so long to get here.