The inclusion of a privacy exception within Bill C-61's anti-circumvention provisions was not particularly surprising given that the U.S. DMCA includes one and there has been mounting concern about the privacy implications of DRM. The issue has captured the attention of the Canadian privacy community for the past few years. In 2006, 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.
The group (of which I am a member) sent a follow-up letter earlier this year as did Privacy Commissioner of Canada Jennifer Stoddart, who posted a public letter expressing concern that copyright reform could have a negative impact on privacy. Given those concerns, an exception to protect personal information is not unexpected. However, Section 41.14 fails to provide Canadians with full privacy protection and Bill C-61 unquestionably makes it more difficult for Canadians to effectively protect their privacy. The reason for this is that though there is an exception that permits circumvention to protect (and prevent the collection or communication of) personal information, the ability to exercise this exception is rendered difficult by virtue of the inability to legally obtain devices (ie. software programs) for this very purpose. Section 41.14(2) states that a person can offer circumvention devices or services for the protection of personal information only "to the extent that the services, technology, device or component do not unduly impair the technological measure."
Bill C-61 does not include a definition of "unduly impair." However, according to an Industry Minister official (who was responding to a journalist inquiry):
"The intent of the provision is to ensure that while individuals may obtain devices and services that circumvent technological measures with a view to protecting privacy, any ensuing circumvention of the technological measure cannot be done in a manner that would enable unauthorised uses of the underlying copyright material by that person or by a third party."
In other words, you can use a circumvention device to protect your privacy but it cannot allow you to simultaneously access the underlying content. Of course, once most circumvention devices circumvent a technological measure, the protected content will be in the clear. Distribution of this form of device is therefore illegal. Moreover, service providers will be likely be unwilling to use this provision for fear of facing liability. Not only should the "unduly impair" wording be removed, but the bill should place a positive obligation on those companies that use DRM that may raise privacy concerns to provide the keys to circumvent their technological measure where requested to do so for privacy purposes.
“….any ensuing circumvention of the technological measure cannot be done in a manner that would enable unauthorised uses of the underlying copyright material by that person or by a third party”
Uhmmm… what, exactly is “unauthorized use” as defined by the copyright act?
Gee, what a surprise! (sarcasm) The copyright act doesn’t actually contain any such notion.
Copyright governs copies, not use. Unauthorized use should be something defined by end-user license agreements, not copyright. And violating an EULA should not itself constitute a copyright violation, but is a matter that should be resolved only between the licenser and the licensee directly.
The law of unintended consequences rears it head yet again. This friggin’ bill needs to be heavily rewritten and all notions of making circumvention technology illegal in ANY context scrapped entirely. Since Canadians have to pay a tariff on blank media that supposedly gives them the privilege to privately copy songs onto such media anyways, in what way does it make any sense at all to cripple the privilege by making the technology that could be used to take advantage of it illegal? The very notion that the anti-circumvention measures supposedly “only” apply in the presence of digital locks that the publisher may choose to put in place is meaningless because virtually every publisher will utilize _some_ form of protection in the hopes that they might further gouge the consumers who will have to pay even more for something that supposedly we were already paying for.
This plays well into my concern that companies will consider their arrangement of our personal information in their database a unique and therefore copyrightable “work”, thus completely stripping us of our ability to excersize our rights under The Personal Information Protection and Electronic Documents Act. If they add DRM to their data on us, we’re completely hooped, because it would be illegal for us to ever find out what data they had…
You say, “please remove my information from your database” and they reply, “sorry, but that is protected under the Canadian DMCA and we are not obligated to remove, correct, or update it. Furthermore, we can share it with whomever we please”.
c-61
So here we are with a bill thats going to pass with little chance of now being stopped.
We have bell/rogers driving independent isp’s out of business with one stunt after another and the crtc dragging there feet.
Dark days are ahead and without government intervention on either issue we have no chance of winning either.
We are now in the age of big business doing what they want and our government going along with it.
C-61, Throttling, The End of Times
So what are we supposed to do when none of our protests are listened to by our elected officials? Wait for another election, where the same morons in Ontario will decide for the rest of Canada what we want? =[
“Limited Consultation, Considerable Act
Download a new C-61 mashup here: [ link ]
“Limited Consultation, Considerable Action” (Michael Geist vs Jim Prentice)
by “We Are All Very Concerned”
Tens of thousands of citizens who spoke on the Canadian copyright issue say they haven’t been consulted and want to ensure they have a voice. The copyright law has been extensively debated, but only among the Canadian government, the big corporations and the US Ambassador. Last public consultation was in 2001, 10% of Canadians were not even born at that time, and the technological lanscape changed significantly since then. Starring: Michael Geist (professor, blogger, columnist), Jim Prentice (Minister of Industry, Conservative), Charlie Angus (NDP), Bill Siksay (NDP), Safwan Javed (Wide Mouth Mason band), Denis Coderre (Liberal Heritage Critic), Jesse Brown (CBC Search Engine). Based on “music is the answer” by Sekula Wieslaw (Poland). Licensed to the public under Creative Commons Attribution Non-Commercial Share-Alike License. Cover picture by grantneufeld at flickr.
Also here: [ link ]
“Of course, once most circumvention devices circumvent a technological measure, the protected content will be in the clear.”
While Geist says “of course”, I don’t know if this is as well understood as it needs to be. My experience is that far too many people talking about technological measures have no background in real-world technology.
His “of course” is partly explained in a presentation I currently gave at Heritage Canada which I later blogged about.
Article title: Access and use “technological measures” – a legal distinction without a technological difference?
[ link ]
http://www.digital-copyright.ca/node/4814
Of course technological measures work li
“Of course, once most circumvention devices circumvent a technological measure, the protected content will be in the clear.”
While Geist says “of course”, I don’t know if this is as well understood as it needs to be. My experience is that far too many people talking about technological measures have no background in real-world technology.
His “of course” is partly explained in a presentation I currently gave at Heritage Canada which I later blogged about.
Article title: Access and use “technological measures” – a legal distinction without a technological difference?
[ link ]
http://www.digital-copyright.ca/node/4814
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