The Standing Committee on Industry, Science and Technology, which is continuing its study on intellectual property, received some important evidence last week from an Ottawa firm focused on IP enforcement issues. Harry Page, the CEO of UBM TechInsights, told the committee that Bill C-11 will actually impede the ability to enforce intellectual property rights. Page’s concern is the same as that expressed by businesses, consumer groups, education: overbroad digital lock rules. According to Page:
we have a concern that aspects of the Copyright Act may actually have an unintended consequence with respect to our local technology community and our ability help people in the protection of their intellectual property. Specifically, our concern is that the anti-circumvention provisions could create legal uncertainty where that would actually discourage the use of forensics to detect infringement of other forms of intellectual property. Even though the fact is that the circumvention of those protection measures actually have nothing to do with the copyright material under protection.
While the committee legislation is now passed and will soon be enacted we will continue our pledge to continue to work with the government and the appropriate bodies to ensure that the regulatory language bringing the act into force are clear and precise so they do not hinder the full and forceful protection of Canadian intellectual property and the protection of intellectual property creators and owners in the international marketplace.
The comments clearly caught Conservative MPs by surprise with MP Peter Braid following up by asking whether Page was “confident that whatever concerns you have will be addressed through regulatory change?”. Page responded “I think so” and Braid quickly changed witnesses. Yet the government has said nothing about potential new exceptions by way of regulation to the digital lock rules and it seems unlikely that Page was provided with inside information.
In fact, MP Cheryl Gallant later asked how to address the problem and Page responds:
There are a number of ways to do that. We’ve looked at the legislation around the world and if you look at New Zealand’s legislation, for example, they have the concept of an authorized circumventor which essentially defines the situation where circumvention is allowed. Certainly, with our own act there is an investigative exemption and we think if the investigative exemption actually was modified to include the investigating breaches of all laws and international IP treaties as well, that could be a focus of it as well.
In our mind, it’s really more the intent of breaching the TPMs than the act itself. Obviously, breaching a TPM for the purpose of infringing and for copyrighting should be a breach of the law and heavily prosecuted. But we believe under the fair dealings provision, as well, that you should be allowed to circumvent any provision to actually investigate breaches of personal rights. So it’s the circumstances under which you would actually investigate.
Page’s comments and suggestions for reform were the same ones the Bill C-11 heard repeatedly from dozens of witnesses and thousands of Canadians. It rejected those amendments, leaving intact provisions that now even IP enforcement companies say will make their job more difficult.