Government use of DRM represents a particularly difficult issue. Some argue that government should never use DRM systems (thereby eliminating the need for a circumvention right), maintaining that it runs counter other government priorities such as openness and accountability. Even governments themselves have acknowledged the problems associated with DRM. Last week, New Zealand issued guidelines on government use of DRM and trusted computing systems featuring a lengthy list of precautions and safeguards. They included requirements of minimal restrictions on content, assurances of future accessibility, full respect for privacy rights, retention of government control over a DRM-free version, and full access for all parties entitled to obtain the public information.
The Canadian government response to the DRM must address several issues.
First, it must determine whether the use of DRM is ever appropriate. Particularly given the policy decision to encourage DRM use through the establishment of anti-circumvention legislation, a government rejection of DRM would represent an important balance to that policy.
Second, if the government identifies specific instances where DRM can be used, it must undertake a similar policy making exercise as the one just concluded in New Zealand to establish the necessary safety measures. The NZ policy document provides a useful starting point since it identifies a broad range of issues that must be addressed.
Third, the government should consider linking this issue with the ongoing debate over the future of crown copyright. As I have written in the past, the government should be moving toward the elimination of crown copyright by removing any restrictions or requirements for prior permission for the use of government or government funded work. Crown copyright represents an important and unnecessary restriction on the access and use of public information. Eliminating those restrictions while treading carefully with respect to government use of DRM would mark an crucial development in public accountability, transparency, and the "modernization" of copyright law.