30 Days of DRM - Day One: Linking Copyright and Anti-Circumvention (Markets)
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Saturday August 19, 2006
I need to begin day one with a couple of introductory issues for those new to copyright reform. When I speak of a Canadian DMCA, I am focused chiefly on anti-circumvention legislation. The forthcoming bill will likely contain many other provisions (few of which will address the needs of users and many creators) but it is the anti-circumvention provisions that will likely prove to be the most contentious.
So what are anti-circumvention provisions? They are provisions that grant legal protection to technological protection measures (TPMs). In plainer English, traditional copyright law grants creators a basket of exclusive rights in their work. TPMs or digital locks (such as anti-copying technologies on CDs) effectively provide a second layer of protection by making it difficult for most people to copy works in digital format. Anti-circumvention legislation creates a third layer of protection by making it an infringement to simply pick or break the digital lock (in fact, it even goes further by making it an infringement to make available tools or devices that can be used to pick the digital lock). Under the DMCA, it is an infringement to circumvent a TPM even if the intended use of the underlying work would not constitute traditional copyright infringement.
This broad legal protection for TPMs has raised numerous issues over the past eight years.
Perhaps the most obvious problem has been the use of these legal provisions in cases that have nothing to do with copyright. The U.S. has been home to a litany of cases involving the DMCA and garage door openers (which involved Canadian-based Skylink), printer cartridge refills, hardware backups, and cell phones. None of these cases involved attempts to stop copyright infringement. Rather, they were fundamentally about exerting greater market control by thwarting potential competitors and reducing innovation. For example, in the Skylink case, Chamberlain, a competitor in the garage door opener market, tried to stop Skylink from offering a universal garage door remote control. Chamberlain argued that Skylink needed to circumvent its TPM in order for its remote to function and that this constituted a violation of the DMCA. While some of the cases have ultimately been dismissed (including, after several appeals, the Skylink case), the mere threat of a lawsuit is frequently enough to dissuade many companies from entering the market or from developing an innovative new product.
Canada can ill-afford to follow the U.S. lead by leaving doubt as to whether anti-circumvention provisions apply outside the realm of copyright. To do so would pose a threat to Canadian innovation and create significant competition law concerns. Moreover, it would subject the Canadian law to constitutional challenge, since the federal government would be encroaching on provincial property rights, rather than addressing copyright. Accordingly, any anti-circumvention provision must be linked directly to copyright. For more on these issues, see my article on the competition concerns of DRM, Jeremy deBeer's piece on the constitutional considerations, and the EFF's study on the unintended consequences of the DMCA.
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Saturday August 19, 2006
We want to enhance competition and investment in this country, and this is why we adopted this policy back in 2008 for the AWS spectrum. Let me say that the price went down by an average of 11% since then, and we will continue this way with the 700 megahertz spectrum. We launched consultation with the industry to make sure that we enhance competition and provide better choice and better rates for our consumers.