The Bill C-11 committee began its sprint to the finish yesterday, hearing from the first series of witnesses with plans to hold four hearings per week until mid-March followed by two weeks of clause-by-clause review of the bill. The first panel included my colleague Jeremy deBeer, who pointed out that a review of hundreds of articles on legal protection for digital locks shows consensus that the restrictive approach found in Bill C-11 is unnecessary for WIPO compliance and likely to result in unintended consequences.
The committee heard from another witness, lawyer James Gannon, that the absence of digital lock legislation is hurting our economy (a reminder that the Canadian digital music market has grown faster than the U.S. for five consecutive years, that Netflix chose Canada as its first foreign market, and the music industry now calls Canada a greenfield opportunity might be in order) and that New Zealand and Switzerland – both OECD countries who link circumvention to actual copyright infringement in their digital lock rules – were the only developed ones that don’t follow the “international standard” with many of the remaining 80 or so countries having “compliant or more robust standards” for digital locks.
Yet a review of dozens of countries that have implemented the WIPO Internet treaties demonstrates that this is plainly wrong. In addition to key allies that do not have any anti-circumvention rules (e.g. Israel), have proposed more flexible rules (e.g. India), or have adopted more flexible rules but have yet to ratify the WIPO Internet treaties (e.g. New Zealand), it is worth noting:
- Argentina is a member of the WIPO Internet Treaties but the treaties are “self-executing.” In other words, only the general language on effective legal remedies and adequate protection is used.
- Austria has legislation that assumes access for non-infringing material. It says it is “monitoring” the situation.
- Belarus is a member of the WIPO Internet Treaties but its law does not cover devices nor access controls.
- Chile is a member of the WIPO Internet Treaties but has not implemented anti-circumvention provisions.
- China is a member of the WIPO Internet Treaties but does not have full DMCA-style provisions within its copyright law.
- The Czech Republic‘s digital lock rules include a specific exception for digital archiving
- Denmark‘s digital lock rules allow users to circumvent if the rights holder does not comply with an order from the Copyright License Tribunal to unlock for authorized purposes. Moreover, Denmark’s implementation includes an explanatory text that indicates that only TPMs used to prevent copying are protected. Accordingly, if a TPM seeks to expand protection beyond mere copyright protection it does not enjoy legal protection. For example, encoding DVDs with regional coding would presumably not enjoy protection, an interpretation confirmed by the Danish Ministry of Culture which has opined that it would not be unlawful to circumvent DVD regional encoding for lawfully acquired DVDs, nor to circumvent a TPM if the sole purpose is to use a lawfully acquired work
- Germany‘s digital lock rules limit the coverage solely to works that are subject to copyright protection
- Greece provides a positive right of access with the condition that failure to obtain the right leads first to mediation, followed by a legal right of action
- Finland‘s law expressly permits circumvention for non-infringing uses of lawfully acquired copies.
- Indonesia is a member of the WIPO Internet Treaties but has not implemented anti-circumvention provisions.
- Italy‘s digital lock rules require rights holders to allow users to exercise various exceptions found in its copyright legislation. Moreover, it includes the right to make one copy for personal use notwithstanding a TPM, provided that the work is lawfully acquired and the single copy does not prejudice the interests of the rights holder.
- Kazakhstan is a member of the WIPO Internet Treaties but does not have full DMCA-style provisions within its copyright law.
- Lithuania‘s anti-circumvention provisions include a specific exception that preserve personal use rights by requiring content owners to enable legitimate uses.
- Mexico is a member of the WIPO Internet Treaties but does not include criminal provisions for distribution or trafficking in devices
- the Netherlands has legislation that assumes access for non-infringing material. It includes the ability for the Justice Minister to issue decrees on the matter.
- Norway‘s anti-circumvention law states that the provisions shall not “hinder private users in gaining access to legally acquired works on that which is generally understood as relevant playback equipment”
- the Philippines is a member of the WIPO Internet Treaties but has not implemented anti-circumvention provisions. Draft bills do not include explicit coverage of access controls nor cover devices.
- Romania is a member of the WIPO Internet Treaties but its digital lock rules do not cover acts of circumvention
- Slovenia‘s digital lock rules include an exception that allow circumvention for teaching purposes
- Spain is a member of the WIPO Internet Treaties but its digital lock rules have been interpreted to allow devices primarily designed for purposes of circumvention when capable of some ancillary non-infringing use.
- Sweden‘s implementation of anti-circumvention legislation tries to ensure access to court cases and government documents that are subject to TPMs.
- Switzerland links circumvention to actual copyright infringement. Article 39a(4) includes a full exception for circumvention of TPMs for legal purposes, providing â€œthe prohibition of circumvention can not be applied to People who are primarily circumventing for the purpose of a legal use
- Tajikistan is a member of the WIPO Internet Treaties but does not have full DMCA-style provisions within its copyright law.
- Turkey is a member of the WIPO Internet Treaties but its digital lock rules do not fully cover acess and copy controls nor trafficking in devices.
- Ukraine is a member of the WIPO Internet Treaties but has limited anti-circumvention provisions that require proof of “intentional” circumvention.
These are just some examples. A deeper review into many other countries would show that the U.S. approach (used in Bill C-11) is nothing approaching a “worldwide standard”. In fact, it is worth noting that the U.S. rarely contests these implementations as being inconsistent with the WIPO Internet treaties. In the USTR 2011 Special 301 Report, implentations by countries such as New Zealand and Switzerland are not even cited as a concern. The report does mention countries like Canada, Israel, and India for not implementing the WIPO Internet treaties, but rarely challenges actual implementations. In other words, the U.S. may prefer its DMCA-style implementation, but it clearly recognizes that there is considerable flexibility within the WIPO Internet treaties. A fuller examination of the creation of the WIPO Internet treaties and how flexibility was designed from the outset can be found in my article on this issue (part of the book on C-11/C-32, From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda).