The U.S. DMCA experience leaves little doubt that the introduction of anti-circumvention legislation will create some unintended consequences. No matter how long the list of circumvention rights and other precautionary measures, it is impossible to identify all future concerns associated with anti-circumvention legislation. The U.S. DMCA addresses this by establishing a flawed tri-annual review process. The system has not worked well, creating a formidable barrier to new exceptions and long delays to address emerging concerns.
If Canada establishes anti-circumvention legislation, it must also establish an impartial process that will enable concerned parties to raise potential new circumvention rights without excessive delay. The process must be fast, cheap, and easily accessible to all Canadians. It will require clear criteria for the introduction of new circumvention rights along with an administrative structure to conduct the reviews.
The recent Australian review assessed each proposal on the basis of four criteria derived from the U.S. – Australia Free Trade Agreement:
- The use of a work, performance, or phonogram must be non infringing;
- A work, performance, or phonogram that is used must be in a particular class of works, performances, or phonograms;
- An actual or likely adverse impact on the non-infringing use of a work, performance, or phonogram must be credibly demonstrated in a legislative review or proceeding; and
- The exception must not impair the adequacy of legal protection or the effectiveness of legal remedies against the circumvention of ETMs.
While there may be some concern that the Australian criteria itself is overbroad, the committee was able to apply it to numerous cases where it found a likely adverse impact, a non-infringing use, and where it was not persuaded that an exception would impair the adequacy of the DRM protection.
The appropriate administrative structure is more difficult to identify. The Copyright Board of Canada is an obvious candidate, yet the lengthy hearing periods and the growing disenchantment with its processes suggest that it may not be the best choice. Given the marketplace concerns associated with TPMs, the Competition Bureau is another possibility, however, it also suffers from delays and insufficient administrative resources to address these issues. Perhaps the best approach would be the creation of a new collaborative body that brings together the expertise of the Copyright Board, Competition Bureau, Privacy Commissioner of Canada, as well as a handful of advisors from private sector groups with expertise in cultural matters, security, education, libraries, and consumer protection. This is not ideal, though neither is anti-circumvention legislation. Nevertheless, an on-demand review process for new circumvention rights is needed to counter the likely negative impacts that come with legal protection for DRM.