Since the introduction of Bill C-32, I have consistently argued that the digital lock provisions are far more restrictive than what is required under the WIPO Internet treaties. Now two recent developments in the U.S. demonstrate that the Canadian proposal is also considerably more restrictive than what is found in the U.S.
First, a significant new appellate court case from the 5th Circuit Court of Appeals has concluded that the restrictions on circumventing an “access control” (ie. a digital lock that restricts access to a work rather than a copy control which restricts copying of a work) are far more limited than previously thought. With language that bears a striking similarity to those arguing circumvention should be permitted for lawful purposes, the U.S. appeals court states:
Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.
In other words, the U.S. court has found that DMCA is limited to guarding access controls only to the extent that circumvention would violate the copyright rights of the copyright owner. This is very similar to what many groups have been arguing for in the context of Canadian legal reform.
Second, this morning the U.S. Copyright Office released the results of its anti-circumvention rulemaking process. The process, which runs every three years, identifies the new exceptions to its anti-circumvention rules. The recommendation covers six exceptions including circumvention of DVDs for short clips for education, documentary filmmaking, and non-commercial videos, circumvention to unlock and jailbreak cellphones, circumvention of video games for testing of security flaws, and circumvention of access controls of e-books where all available e-book editions contain restrictions of the read-aloud function.
While Bill C-32 has a similar exception for locked cellphones, the U.S. version includes both unlocking and jailbreaking to allow users to play unapproved applications on their devices. Moreover, the U.S. DVD and e-book exceptions go much further than the Canadian proposal. In the DVD context, Canadian documentary film makers have raised precisely this concern, yet the U.S. now has an exception for it and Canada would not under C-32. Similarly, the new YouTube exception in the Canadian bill – trumpted as progressive – is still subject to digital locks, while the U.S. has specific exception for it. Taken together, it becomes apparent that the Canadian rules are far more restrictive than even the U.S. DMCA.