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The U.S. DMCA vs. Bill C-32: Comparing the Digital Lock Exceptions

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legislation designed to last ten years, yet the scope of Bill C-32′s anti-circumvention exceptions became outdated in less than ten weeks.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. 

17 Comments

  1. What the USA does is irrelevant.
    Canadian Heritage Minister James Moore and the PMO are kowtowing to the US entertainment industry.
    The New World Order in 3D.

  2. Inexperience shows
    It seems Mr. Moore is over his head on this issue, maybe Tony can jump in and drag him to shore ;-)

  3. @Crockett
    Tony’s too busy trying to save the sinking ship that is the census debate to save anyone else at the moment. ;)

    But hopefully this will result in our bill being changed. I have little hope of that since this government seems to have a “We made a decision, and no matter how bad it is, we’re going to do it anyway” attitude.

  4. Sandy Crawley says:

    Executive Director, Professional Writers Association of Canada
    Surely the automatic five-year review proposed in C-32 would include reviewing exceptions.

  5. Sandy Crawley says:

    The tone of personal diatribe against either minister is a sad comment on the ideological biases of the comments.

  6. Why bother obeying any of their laws?
    We speak, we are radical extremists.
    Americans speak, they jump.

    They don’t want to listen to us, why should we listen to them?

  7. Hope?
    Well unless the conservatives somehow make this a confidence vote, the opposition parties should now have enough wriggle room and popular support to vote against it. I think the cons know this and will have to make some amendments to get it through. Again my optimism is showing in the democratic system actually working, on a side note I thank any powers that be that the cons did not get a majority {:-0

  8. @Sandy Crawley
    I’ve mentioned that here before. In fact, the new wording for section 92 of the act reads:

    “92. Five years after the day on which this section comes into force and at the end of each subsequent period of five years, a committee of the Senate, of the House of Commons or of both Houses of Parliament is to be designated or established for the purpose of reviewing this Act.”

    So while it isn’t as often as the US with respect to reviewing exceptions, the language in C-32 appears to be more encompassing. It is a trade-off. If a review of the entire act is not important to you, or you are more concerned about the exceptions to the act, then you’d tend (I believe) to agree with Dr Giest’s position. However, I personally agree with you that a periodic review of the entire act, not just a portion thereof, may in fact serve the people of Canada better. This allows for changes to account for changes in technology as well as the general societal norms. Note I say may, as at the end of the day it comes down to implementation. The act allows for the committee to be taken solely from the HoC. Where a majority government exists, they could easily stack it so the recommendations are in line with party policy. This goes for any of the parties, not just the current governing CPC.

  9. Executive Director, Radical Extremists for Fair Use 0_o
    @Sandy

    The tone of personal diatribe (eg. radical extremists) BY either minister is a sad comment on the ideological biases of the COMMENTER.

  10. Heh
    Love the way these people crawl out the woodwork to speak out against Dr. Geist when he makes the slightest comment that could be perceived as negative – and yet remain totally 100% silent when a minister catering to their desires/wants/gains does it.

  11. @Sandy “Surely the automatic five-year review proposed in C-32 would include reviewing exceptions.”

    Five years? You-tube is almost younger than that! That is a geological age in the technological universe.

    Instead, legislation should be technology neutral and have:
    a) provisions against the unauthorized use of copyrighted works for profit
    b) provisions for use of copyrighted works for lawful and fair use activities

    ED, REFU :)

  12. S. 92 v.s. the DMCA “review”
    Compare the formation every five years of an inexpert committee to “review” with no executive authority to make changes, according to the proposed s. 92, with the US Librarian’s introduction to the changes that have just been independently effected on the three year DMCA rule:

    “Section 1201(a)(1) of the copyright law requires that every three years I am to determine whether there are any classes of works that will be subject to exemptions from the statute’s prohibition against circumvention of technology that effectively controls access to a copyrighted work. I make that determination at the conclusion of a rulemaking proceeding conducted by the Register of Copyrights, who makes a recommendation to me. Based on that proceeding and the Register’s recommendation, I am to determine whether the prohibition on circumvention of technological measures that control access to copyrighted works is causing or is likely to cause adverse effects on the ability of users of any particular classes of copyrighted works to make noninfringing uses of those works. The classes of works that I designated in the previous proceeding expire at the end of the current proceeding unless proponents of a class prove their case once again.”

    It’s much more than the term of years.

  13. Anonymous - Thank God says:

    I depend on my connection for my livelihood, the education of my children, and for the health of my whole family. These ministers propose to remove these from me for actions that have been taken by millions of Canadians daily for many years now, including the ministers themselves. Actions which our supreme court has ruled legal. Actions which no court, country or corporation have been able to reach any agreement on regarding which software, running which media, for which purpose, would be allowed and which would not.
    The DMCA is falling apart in the US and ACTA is falling apart worldwide. The economic evidence of all of the studies does not support their lie that this law is needed. The law would completely redefine the Internet’s architecture, make what is private by default become public by default, and forever destroy the power of anonymity, once the cornerstone of the US constitution, the sine qua non of democracy, freedom of speech, and every disruptive technology of the new economy.
    All for the benefit of the movies – for stories which could be told for thousands instead of millions, and probably for the personal financial benefit of the ministers, too.
    They are the radicals, selling their souls, our freedom and that of our children, to the devil. I pray to God every day that they burn in hell.

  14. exploderator says:

    @ Sandy Crawley
    Sandy Crawley said: “Surely the automatic five-year review proposed in C-32 would include reviewing exceptions.”

    “Surely” ??? Really? What if they book the review in the summer? About a half hour later it could be concluded with a “seems fine to me”, “yup, seems fine to me too”, “all agreed?”, “motion carried.”

    If you really are the “Executive Director, Professional Writers Association of Canada”, then I urge you not to advocate leaving such a critical industry issue up to good wishes for ongoing due diligence and sufficient vigilance from government. Without specific legislated mandates, any urgent issues of the future day are likely to overshadow such a review process. Furthermore, with no specific legislated topics of review, there is no guarantee that any of your potential future concerns will be regarded by whatever elected politicians happen to preside over the review at that time. The DCMA was wise to closely specify a detailed review / exception process, to be conducted by stable authorities who work close to the issue, and who are obliged to specifically hear relevant concerns on the topic. Can you imagine the farce their Congress would make of the process, or how impossible it would be to even be heard? I see no reason to expect useful reviews as legislated in the current draft of C-32. Given the real pace of technological change, and the ability for details that seem helpful today to become a hindrance tomorrow, I suggest that even if you like C-32 as it currently reads, you would be foolhardy to trust its current utility to last, and suggest that we make damn sure there is an unambiguous and thorough review process specified in a way that might hope to keep pace with these modern times.

    If there is one underlying principle that seems most important I think it would be this: the rapid pace of technological change necessitates a legal framework that is carefully designed to keep pace with the rapidly changing societal needs. I note that the American system carefully delegates certain detailed aspects of its policy out of the main text of the DCMA, and into a more flexible and responsive policy process. I think that is very wise. It seems that the days are gone where we can hope for traditional political / legislative processes to keep up with the real ongoing demands of society for a suitable legal framework to govern our daily business. Copyright, meet the future. Bill C-32 may seem workable today, its specific policies timely, but its fundamental form is a rigid relic of the past.

    The privileged position given to “digital locks” in C-32 is a good example: TPM / DRM / “digital locks”, are nothing but a technological fad, a tool of the moment. Their efficacy and utility have been very much hit and miss, their track record is mired in controversy and failure, and we see many examples of the extremely dynamic industries that use these tools changing their own positions like dirty socks. Digital locks are merely technological tools that industry needs to sort out on its own, tools that need to thrive or fail based on their own performance in the market. Tools that should not be artificially enshrined by some legislated mandate from on high, that stands no honest hope of usefully interceding in the real dynamic forces that will ultimately determine the real outcomes of digital lock technology. If anything perhaps should be legislated about digital locks, it might be their high potential for abusive and fraudulent use against the public good. Sadly, that’s the main thing missing from bill C-32.

  15. btrussel and anonymous:
    Well said, pure poetry! Thank you.


  16. I love how when Sandy Crawley posts on this blog, it’s always two posts and then she leaves.

    Lame attack, quick withdrawal.

  17. Is Moore and Clement contradicting each other?
    > Surely the automatic five-year review proposed in C-32 would include reviewing exceptions.

    This is just too funny!! Bill C-32 is already obsolete, and you want to wait 5 more years to make changes? Technology nowadays is basically obsolete in 6 months to a year, but you want to wait 5 years to catch up? How funny is that?

    If Bill C-32 didn’t have any protection for obsolete technology, or any technology, 5 years would be fine.

    By the way, the 5 years is due to “this” below. If it wasn’t for “this”, it’d be a lot longer, which is fine by you stealing fair dealing from the public. Take a wild guess at what “this” is, and I encourage you to read subsection (1) and (2) to get the full understanding. I highly doubt you’ll even bother to search for “this”.

    Five year limitation
    (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

    Re-enactment
    (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

    Five year limitation
    (5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

    Anyway, why is Tony Clement or James Moore be allowed to stray from party “principle”? Shouldn’t Stephen Harper apply the choke chain on one of them by now? This is strange politics where James Moore tabled an obsolete bill C-32, while Tony Clement seems to go against it. Who is out of line here? They both can’t be right.