Yesterday’s U.S. DMCA Rulemaking decision, which established a series of new anti-circumvention exceptions, attracted considerable attention on both sides of the border. In the U.S., critics of the DMCA noted the progress in addressing some of the DMCA’s most troubling consequences by creating exceptions for unlocking and jailbreaking cellphones and circumventing DVD locks in several circumstances (though the decision is hardly a panacea given the restrictions on distributing circumvention tools, contractual restrictions, and the absence of a general right to circumvent for lawful purposes).
From a Canadian perspective, the U.S. decision – combined with the recent 5th Circuit Court of Appeals ruling linking circumvention to copyright and the USTR decision to cave on the digital lock rules in ACTA – provides a timely reminder of the mistake that is the digital lock rules in C-32.
Looking back, Industry Minister Tony Clement said he wanted forward-looking legislation designed to last ten years, yet the scope of Bill C-32’s anti-circumvention exceptions became outdated in less than ten weeks. Canadian Heritage Minister James Moore, when not calling critics “radical extremists,” emphasized that Bill C-32 was not identical to the DMCA. While he had the notice-and-notice system in mind, weeks later his comments became accurate since it turns out the DMCA is far less restrictive than C-32.
Just how badly does the Canadian bill stack up? On the two key issues in the bill – digital locks and fair dealing – Canada is far more restrictive than the U.S. Consider:
- U.S. rules contain a mandatory review of anti-circumvention exceptions every three years. There is no mandatory review of the exceptions in the Canadian bill.
- U.S. rules contain an exception for unlocking and jailbreaking a cellphone. Canadian rules only cover unlocking.
- U.S. rules contain an exception for education to circumvent DVD protection to gather a short clip. Canadian rules, despite various new education exceptions, would treat this as an infringement.
- U.S. rules contain an exception for documentary film makers to circumvent DVD protection to gather a short clip. Canadian rules, despite various new creator exceptions for parody and satire, would treat this as an infringement.
- U.S. rules contain an exception for everyone to circumvent DVD protection to gather a short clip to create non-commercial videos. Canadian rules include an exception for non-commercial videos, but do not exempt circumvention.
- U.S. rules contain an exception for e-books designed to facilitate access for the sight impaired. The Canadian rules do not contain a similar exception.
- U.S. law contains a flexible fair use provision that covers everything from recording television shows to making backup copies. Moreover, at least one U.S. appellate court has factored these rules when considering the DMCA. The Canadian rules contain a series of new fair dealing exceptions that are collectively still more restrictive than the U.S. fair use and are still subject to digital locks.
The response to the U.S. developments from Clement and Moore was interesting. Clement immediately asked his department to review the U.S. changes, presumably with a view to considering whether Bill C-32 should be amended. Moore, after weeks of silence on copyright (after urging people to confront C-32 critics, Moore has said virtually nothing about the bill), tweeted about a music industry article that chronicled the biggest changes in the industry, including the shift from CDs to singles, the popularity of YouTube to listen to music, social media, and Pandora. Oddly, Moore said the article “shows again the need for ongoing reform,” yet, at the risk of being labeled a radical extremist, there wasn’t anything in the article had much to do with legal changes at all.