As part of the contentious debate over the implementation of anti-circumvention rules in Canadian copyright law in 2012, the government tried to assure concerned stakeholders that it had established specific mechanisms within the law to create additional exceptions to the general rule against circumvention. The law includes a handful of exceptions for issues such as security or privacy protection, but there is also a process for adding new limitations to the general rule. There are two possible avenues for new limitations and exceptions. First, Section 41.21(1) allows the Governor in Council to make regulations for an exception where the law would otherwise “unduly restrict competition.” Second, Section 41.21(2)(a) identifies other circumstances to consider for new regulations for exceptions including whether the circumvention rules could adversely affect the fair dealing criteria.
In addition to those two potential regulation making models for new exceptions and limitations, Canadian law also establishes the possibility of creating a positive requirement on rights holders to unlock their locked content. It states that the Governor in Council may make regulations:
requiring the owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording that is protected by a technological protection measure to provide access to the work, performer’s performance fixed in a sound recording or sound recording to persons who are entitled to the benefit of any of the limitations on the application of paragraph 41.1(1)(a) prescribed under paragraph (a). The regulations may prescribe the manner in which, and the time within which, access is to be provided, as well as any conditions that the owner of the copyright is to comply with.
Unlike the limitations and exceptions provisions, this is not a limitation or exception as it does not envision the possibility of permitting a user to circumvent a digital lock. Instead, it lays the groundwork to create a requirement to unlock content. The Trouble with the TPP is that its limitation and exception may not permit requiring this form of unlocking requirement.
Article 18.68 (4)(i) of the TPP is limited to creating exceptions or limitations on the prohibition against circumvention and does not include language to permit mandated unlocking:
a Party may provide certain limitations and exceptions to the measures implementing paragraph 1(a) or paragraph 1(b) in order to enable non-infringing uses if there is an actual or likely adverse impact of those measures on those non-infringing uses, as determined through a legislative, regulatory, or administrative process in accordance with the Party’s law, giving due consideration to evidence when presented in that process, including with respect to whether appropriate and effective measures have been taken by rights holders to enable the beneficiaries to enjoy the limitations and exceptions to copyright and related rights under that Party’s law;
The absence of a positive obligation to unlock is unsurprising since it is not found in U.S. law. The Canadian government may try to argue that a positive obligation to provide unlocked content is a form of exception, yet rights holders steadfastly opposing this type of requirement, the TPP adds another argument to add to their arsenal.
(prior posts in the series include Day 1: US Blocks Balancing Provisions, Day 2: Locking in Digital Locks, Day 3: Copyright Term Extension, Day 4: Copyright Notice and Takedown Rules, Day 5: Rights Holders “Shall” vs. Users “May”, Day 6: Price of Entry, Day 7: Patent Term Extensions, Day 8: Locking in Biologics Protection, Day 9: Limits on Medical Devices and Pharma Data Collection, Day 10: Criminalization of Trade Secret Law, Day 11: Weak Privacy Standards, Day 12: Restrictions on Data Localization Requirements, Day 13: Ban on Data Transfer Restrictions, Day 14: No U.S. Assurances for Canada on Privacy, Day 15: Weak Anti-Spam Law Standards, Day 16: Intervening in Internet Governance, Day 17: Weak E-commerce Rules, Day 18: Failure to Protect Canadian Cultural Policy, Day 19: No Canadian Side Agreement to Advance Tech Sector, Day 20: Unenforceable Net Neutrality Rules, Day 21: U.S. Requires Canadian Anti-Counterfeiting Report Card, Day 22: Expanding Border Measures Without Court Oversight, Day 23: On Signing Day, What Comes Next?, Day 24: Missing Balance on IP Border Measures, Day 25: The Treaties With the Treaty, Day 26: Why It Limits Canadian Cultural Policies, Day 27: Source Code Disclosure Confusion, Day 28: Privacy Risks from Source Code Rules, Day 29: Cultural Policy Innovation Uncertainty, Day 30: Losing Our Way on Geographical Indications, Day 31: Canadian Trademark Law Overhaul, Day 32: Illusory Safeguards Against Encryption Backdoors, Day 33: Setting the Rules for a Future Pharmacare Program, Day 34: PMO Was Advised Canada at a Negotiating Disadvantage, Day 35: Gambling With Provincial Regulation, Day 36: Why the TPP Could Restrict Uber Regulation, Day 37: Breaking Digital Locks for Personal Purposes)