I have spent much of the past month identifying problems with Bill C-61's anti-circumvention provisions. While the bill misses many necessary exceptions and includes exceptions that do not withstand careful analysis, even the current list of exceptions pre-suppose that a person has the technical ability to circumvent. There may be a group of Canadians with sufficient technical expertise to do so, but my sense is that the overwhelming majority would not even know where to begin.
There are several mechanisms that could be used to address this issue (and note that it must be addressed or else even the meagre exceptions within C-61 will be illusory). The first would be to ensure that the bill does not touch the legality of circumvention devices themselves. Section 41(1)(c) provides that no person shall:
manufacture, import, provide – including by selling or renting – offer for sale or rental or distribute any technology, device or component if
(i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological measure,
(ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a technological measure, or
(iii) the person markets the technology, device or component as being for the purposes of circumventing a technological measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.
From a WIPO ratification perspective, there is no requirement for this provision. Indeed, Bill C-60 provided a model that did not touch devices themselves, choosing instead to target conduct involving circumvention for the purposes of copyright infringement. By removing the unnecessary ban on devices that can be used to circumvent, there is a greater likelihood that Canadians would have access to programs that could be used to retain their existing rights and protect their privacy. Bill C-60 got this issue right and C-61 should be amended by restoring an approach that avoids regulating technologies in this manner.