So what are anti-circumvention provisions? They are provisions that grant legal protection to technological protection measures (TPMs). In plainer English, traditional copyright law grants creators a basket of exclusive rights in their work. TPMs or digital locks (such as anti-copying technologies on CDs) effectively provide a second layer of protection by making it difficult for most people to copy works in digital format. Anti-circumvention legislation creates a third layer of protection by making it an infringement to simply pick or break the digital lock (in fact, it even goes further by making it an infringement to make available tools or devices that can be used to pick the digital lock). Under the DMCA, it is an infringement to circumvent a TPM even if the intended use of the underlying work would not constitute traditional copyright infringement.
This broad legal protection for TPMs has raised numerous issues over the past eight years.
Canada can ill-afford to follow the U.S. lead by leaving doubt as to whether anti-circumvention provisions apply outside the realm of copyright. To do so would pose a threat to Canadian innovation and create significant competition law concerns. Moreover, it would subject the Canadian law to constitutional challenge, since the federal government would be encroaching on provincial property rights, rather than addressing copyright. Accordingly, any anti-circumvention provision must be linked directly to copyright. For more on these issues, see my article on the competition concerns of DRM, Jeremy deBeer's piece on the constitutional considerations, and the EFF's study on the unintended consequences of the DMCA.