As part of a major set of copyright reforms in 1988, Canadian copyright law was amended to allow for the making of backup copies of computer programs. Section 30.6(b), the backup copy provision, is quite narrow, permitting the making of a single backup copy of a computer program "for a person who owns a copy of the computer program," provided that the copy is for backup purposes only and that it is destroyed "immediately when the person ceases to be the owner of the copy of the computer program."
This provision, which has not been tested in the courts, raises the interesting question of whether owning a copy of the computer program refers to owning the copyright in the computer program or owning the physical copy of the computer program. Many commentators believe that it refers to copyright ownership, in which case the provision is relatively meaningless given that most consumer software is licensed and not owned (although the enforceability of licenses that prohibit backup copies would make for an interesting test case).
The provision would be far more useful (and make much more sense) with the latter interpretation, however.
Physical copies of computer data are invariably frail – hard drives crash, CDs become scratched, and data gets corrupted – creating a real need for the right to make a backup to preserve the software program from loss. As part of the copyright reform process, this section should be clarified such that it removes any doubt that consumers have a positive right to make a backup copy of their computer programs and that those rights cannot be waived in the software licensing terms.
There is also a TPM dimension with the backup provision since TPMs can be used to block the ability to make a backup copy, even where the user has the right to do so under the Copyright Act. This issue was just raised by the Australian Attorney General, who is consulting this month on whether to add an exception for the making of backup copies of computer programs. Given the current state of Canadian law, there should be no doubt that a circumvention right to make a backup copy of a computer program is needed.