30 Days of DRM - Day 09: Reverse Engineering (Circumvention Rights)
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Sunday August 27, 2006
The inclusion of a reverse engineering circumvention right is another obvious necessary provision. Reverse engineering is described by the Chilling Effects site as follows:
Reverse engineering is the scientific method of taking something apart in order to figure out how it works. Reverse engineering has been used by innovators to determine a product's structure in order to develop competing or interoperable products. Reverse engineering is also an invaluable teaching tool used by researchers, academics and students in many disciplines, who reverse engineer technology to discover, and learn from, its structure and design.
The need for a reverse engineering provision therefore follows from some of the discussion last week - it is pro-competitive as it facilitates the creation of compatible devices as well as greater competition in the marketplace.
While there may be general agreement on the need for a reverse engineering provision, it is essential that Canada avoid the U.S. DMCA approach which has been widely criticized for being too limited in scope and thus woefully ineffective.
The DMCA allows software developers to circumvent TPMs of lawfully obtained computer programs, but in order to benefit from the provision, developers must seek permission first, must limit their activity strictly to interoperability, and cannot "traffic" in devices that would allow for circumvention (in other words, the tools need to circumvent may be unavailable). Moreover, the provision is limited solely to computer programs, thereby excluding TPMs associated with network protocols or hardware devices. The ineffectiveness of the reverse engineering provision has been borne out by caselaw - both the DeCSS case and the Blizzard case, which both involved interoperability issues, rejected attempts to use the DMCA's reverse engineering provision.
In addition to the need for a broadly worded circumvention right, Canadian copyright law would also benefit from an explicit right of reverse engineering. The act of reverse engineering may well be covered by fair dealing given the expansive approach adopted by the Supreme Court of Canada in the CCH decision, however, there remains some element of risk in relying solely on the fair dealing user right. To remove that innovation inhibiting risk, Canada should expand fair dealing so that the current categories are deemed illustrative rather than exhaustive or, alternatively, establish an explicit reverse engineering user right.
Not surprisingly, the reverse engineering issue has garnered attention from Canada's security industry. The Digital Security Coalition, comprised of some of Canada's leading digital security companies, has written a public letter to the Ministers of Industry and Canadian Heritage emphasizing the importance of reverse engineering. It warns against anti-circumvention legislation and calls for explicit protection for reverse engineering within the Copyright Act.
Sunday August 27, 2006