The U.S. DMCA vs. Bill C-32: Comparing the Digital Lock Exceptions
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Tuesday July 27, 2010
Yesterday's U.S. DMCA
which established a series of new anti-circumvention exceptions,
attracted considerable attention on both sides of the border. In
U.S., critics of the DMCA noted the progress
in addressing some of the DMCA's most troubling consequences by
creating exceptions for unlocking and jailbreaking cellphones and
circumventing DVD locks in several circumstances (though the decision
is hardly a panacea given the restrictions on distributing
circumvention tools, contractual restrictions, and the absence of a
general right to circumvent for lawful purposes).
From a Canadian perspective, the U.S. decision - combined with the
recent 5th Circuit Court of Appeals ruling linking circumvention to
copyright and the USTR decision to cave on the digital lock rules in
ACTA - provides a timely reminder of the mistake that is the digital
lock rules in C-32.
Looking back, Industry Minister Tony Clement said he wanted forward-looking
designed to last ten years, yet the scope of Bill C-32's
anti-circumvention exceptions became outdated in less than ten
Canadian Heritage Minister James Moore, when not calling critics
"radical extremists," emphasized that Bill C-32 was not identical to
the DMCA. While he had the notice-and-notice system in mind,
later his comments became accurate since it turns out the DMCA is far
less restrictive than C-32.
Just how badly does the Canadian bill stack up? On the two key
in the bill - digital locks and fair dealing - Canada is far more
restrictive than the U.S. Consider:
The response to the U.S. developments from Clement and Moore was
interesting. Clement immediately asked
to review the U.S. changes, presumably with a view to considering
whether Bill C-32 should be amended. Moore, after weeks of
copyright (after urging people to confront C-32 critics, Moore has
said virtually nothing about the bill), tweeted
about a music
that chronicled the biggest changes in the industry, including the
shift from CDs to singles, the popularity of YouTube to listen to
music, social media, and Pandora. Oddly, Moore said the article
again the need for ongoing reform," yet, at the risk of being labeled a
radical extremist, there wasn't anything in the article had much
to do with legal changes at all.
- U.S. rules contain a mandatory review of anti-circumvention
exceptions every three years. There is no mandatory review of the
exceptions in the Canadian bill.
- U.S. rules contain an exception for unlocking and jailbreaking a
cellphone. Canadian rules only cover unlocking.
- U.S. rules contain an exception for education to circumvent DVD
protection to gather a short clip. Canadian rules, despite
education exceptions, would treat this as an infringement.
- U.S. rules contain an exception for documentary film makers to
circumvent DVD protection to gather a short clip. Canadian rules,
despite various new creator exceptions for parody and satire, would
treat this as an
- U.S. rules contain an exception for everyone to circumvent DVD
protection to gather a short clip to create non-commercial
Canadian rules include an exception for non-commercial videos, but do
not exempt circumvention.
- U.S. rules contain an exception for e-books designed to
facilitate access for the sight impaired. The Canadian rules do
contain a similar exception.
- U.S. law contains a flexible fair use provision that covers
everything from recording television shows to making backup
Moreover, at least one U.S. appellate court has factored these rules
when considering the DMCA. The Canadian rules contain a series of
fair dealing exceptions that are collectively still more restrictive
than the U.S. fair use and are still subject to digital locks.
Tuesday July 27, 2010