Yesterday I posted on the government’s internal analysis on the constitutional risks associated with digital lock rules found in Bill C-11 including the constitutional warnings issued by the Department of Justice. The same document obtained under the Access to Information Act also notes that the Competition Bureau raised concerns about digital locks. The document states:
The Canadian Competition Bureau has raised some specific concerns about digital locks:
- Limiting inter-operability such that only particular devices can function with the purchased product;
- Situations may arise where, in order to use a copy protected product, the consumer would also have to purchase a particular type of player or device, which might raise an instance of tying under the Competition Act;
- In addition, while the concept has not yet been employed by any Canadian courts, it is possible that TPMs that restrict access to, or use of, a legally-acquired copy of a work would be the basis for a “copyright misuse” claim.
- Lastly, to the extent that TPMs restrictions on the ability of a purchaser to access and use a legally acquired copy of a work are inconsistent with the advertised attributes of the work, this could form the basis for a misleading advertising charge pursuant to Section 52 of the Competition Act.
The Bureau also notes that, although the Competition Act does not expressly discuss the essential facilities doctrine in the context of IP rights, potentially relevant provisions of the statute include Section 75 that deals with refusal to deal, and Section 79 that is directed to the abuse of dominant position. The essential facilities compels a dominant or monopoly owner of a resource, access to which is considered “essential” for effective competition, to provide such access to competing firms.
I identified some of these issues in an article titled Anti-circumvention Legislation and Competition Policy: Defining a Canadian Way?, which I wrote in 2005 for the first book I edited on Canadian copyright reform, In the Public Interest: The Future of Canadian Copyright Law. It is very notable that the Competition Bureau has voiced concerns about the potential for anti-competitive conduct with digital locks. Yet despite the warnings, the approach in Bill C-11 encourages their use by granting business models that employ digital locks the power to trump other rights contained in the Copyright Act.