30 Days of DRM - Day 08: Privacy (Circumvention Rights)
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Saturday August 26, 2006
Today's post kicks off the heart of the 30 Days of DRM series - circumvention rights. Circumvention rights are necessary since everyone agrees that an absolute anti-circumvention provision (ie. circumvention prohibited in all circumstances) is unworkable. There are instances where such a prohibition would result in significant costs by precluding beneficial activities, creating "unintended consequences", and lead to significant harm to the public. Indeed, the DMCA itself includes several narrow exceptions to the general anti-circumvention rule.
The approach in Bill C-60 was to limit (the government believed eliminate) the need for circumvention rights by creating a direct link between circumvention and copyright. Bill C-60 only made it an offence to circumvent a technological measure for the purposes of copyright infringement. In other words, if you had another purpose - for example, protecting your personal privacy - the anti-circumvention provision would not be triggered.
If the new copyright bill adopts a U.S. style approach, then a crucial part of the discussion will be whether the government has identified all the necessary rights to limit the harms associated with anti-circumvention legislation. While these rights might be characterized by some as exceptions, I think they are more appropriately viewed as circumvention rights, analogous to the Supreme Court of Canada's emphasis on user rights.
Privacy protection is an obvious example of a circumvention right.
Copyright is important, but many would say that privacy protection should trump copyright considerations. There is clearly a need for a privacy circumvention right since failure to include it could result in companies collecting and user personal information with the public locked-out of the ability to stop such activity. PIPEDA, the federal privacy law, requires organizations to obtain consent for the use, collection, and disclosure of personal information, however given the law's weak remedies and the ease with which the public can end up contracting out of privacy rights, stronger protection is needed.
This issue has certainly captured the attention of the Canadian privacy community. Earlier this year, a group of privacy and civil liberties organizations and experts sent a public letter to the responsible ministers calling for assurances that:
Saturday August 26, 2006