The approach in Bill C-60 was to limit (the government believed eliminate) the need for circumvention rights by creating a direct link between circumvention and copyright. Bill C-60 only made it an offence to circumvent a technological measure for the purposes of copyright infringement. In other words, if you had another purpose – for example, protecting your personal privacy – the anti-circumvention provision would not be triggered.
If the new copyright bill adopts a U.S. style approach, then a crucial part of the discussion will be whether the government has identified all the necessary rights to limit the harms associated with anti-circumvention legislation. While these rights might be characterized by some as exceptions, I think they are more appropriately viewed as circumvention rights, analogous to the Supreme Court of Canada's emphasis on user rights.
Privacy protection is an obvious example of a circumvention right.
This issue has certainly captured the attention of the Canadian privacy community. Earlier this year, 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.
That letter was supported by four of Canada's best known privacy commissioners who each wrote their own letters on the DRM privacy issue. They include Jennifer Stoddart, the Privacy Commissioner of Canada, Ontario Privacy Commissioner Ann Cavoukian, British Columbia Privacy Commissioner David Loukidelis, and Alberta Privacy Commissioner Frank Work. Intellectual Privacy also a background paper on this issue and Ian Kerr's excellent piece on privacy circumvention is highly recommended.