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The Missing Copyright Docs, Pt 1: Justice Dept Warned About Constitutionality of Digital Lock Rules

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Monday June 25, 2012
The House of Commons may have passed Bill C-11, but the constitutional concerns with the copyright bill and its digital lock rules will likely linger for years. Many experts believe that the government's decision to adopt one of the most restrictive digital lock approaches in the world - it creates potential liability without actual copyright infringement - renders the provision vulnerable to constitutional challenge.

The Department of Justice's take on the constitutional concerns has long been the subject of speculation, yet the legal opinion is protected by solicitor-client privilege. However, late last week I received records from an Industry Canada access to information request that includes the internal departmental analysis of digital lock rules that was prepared in advance of Bill C-32. The document includes a summary of the Department of Justice legal opinion, information on other Justice legal opinions, and details of concerns raised internally by the Competition Bureau (the Competition Bureau concerns will be discussed in a separate post tomorrow). The net result is that the document confirms that there were concerns within Industry Canada and from the Department of Justice about the constitutionality of the digital lock approach. According to Industry Canada's analysis:

TPMs may raise some concerns under the Canadian Charter of Rights and Freedoms, especially with respect to the freedom of expression entailing the right to access information. For instance, provisions prohibiting the circumvention of DVD regional coding may violate the Charter where the user seeks to access information that is consistent with the rights (s)he may have purchased and where no copyright infringement occurs (N.B. Notwithstanding the potential constitutional invalidity of anti-circumvention provisions re. regional coding, the circumvention may nonetheless be unauthorized and therefore unlawful under applicable contractual terms).

The key source document is a legal opinion dated March 2, 2007, from the Department of Justice on the "assessment of potential Charter risks of prohibiting the act of circumvention of access-control TPMs and the provision of services or sale of devices to circumvent any kind of TPM." The opinion, which was likely updated for Bill C-11, is described in the Industry Canada summary as follows:

DOJ's opinion overall suggests that legislation prohibiting anti-circumvention acts, devices and services would not be held unconstitutional (either they would not breach the freedom of expression rights or, if they did contravene, would be justified) where they are tied/linked to copyright infringement [emphasis added].

Reserves: May be a problem with Charter if no exception for the perceptually disabled or if too broad so as to capture publication of data (e.g. encryption research data) in an academic context.

The summary suggests that the Department of Justice has raised constitutional concerns with digital lock rules that are not tied or linked to copyright infringement. Now consider what the government said in its clause-by-clause analysis of then Bill C-32, also obtained under Access to Information:

Generally, an owner of copyright in a work or other subject matter for which this prohibition has been contrevened has the same remedies as if this were an infringement of copyright (proposed s.41(2)). However, a contravention of this prohibition is not an infringement of copyright and the defences to infringement of copyright are not defences to these prohibitions.

Bringing together the Department of Justice legal opinion with the government's analysis of its own bill confirms the current digital lock approach is vulnerable to a constitutional challenge.

Moreover, the reference to particular problems with respect to the perceptually disabled is important because though there is an exception, it is ineffective. As the Provincial Resource Centre for the Visually Impaired (PRCVI) British Columbia, which works to assist blind and visually impaired students, argued:

The exception that permits circumvention of technological protection measures (TPMs) and the means to circumvent these measures for the purpose of producing alternate formats (Section 41.16(1)) may be largely nullified by the condition “to not unduly impair the technological protection measure.” According to the Canadian Library Association there is no effective technical way to remove the TPMs and to restore them after an alternate format has been created. The TPMs would in all likelihood, interfere with the use of some, if not all, of the adaptive technologies used by students with perceptual disabilities to access educational materials.

If the exception is largely nullified by the "unduly impair" language, a constitutional challenge by groups representing the visually impaired might stand a good chance of success.

Interestingly, the DOJ also raised the question of whether Canada is arguably already compliant with the WIPO Internet treaties without the need for additional legislation:

DOJ notes that some Canadian legislation does prohibit TPM circumvention in certain specific instances. Section 9(1) of the Radiocommunication Act prohibits the unauthorized decoding of encrypted subscription programming signals and network feeds. Section 341.1 and 342.2 of the Criminal Code prohibit, among other things, the fraudulent interception of a function of a computer system.

The summary elsewhere states these "would unlikely be sufficient to meeting international standards", but it acknowledges that the RCMP has used these provisions to prosecute a producer/distributor of circumvention devices used in video game consoles. The Industry Canada summary also points to multiple other DOJ legal opinions on the WIPO Internet Treaties, including opinions on ratification, privacy issues, and the TPM provisions. It is presumably these opinions that supported the approach found in Bill C-60, the 2005 Canadian copyright bill that linked circumvention to copyright infringement.

The government's C-11 approach, which seemingly ignored the Department of Justice's legal advice on the constitutional vulnerability of digital lock rules that are not linked or tied to copyright infringement, suggests that a future constitutional challenge of C-11 may be possible. Moreover, a constitutionally vulnerable bill is not the only problem, as the Industry Canada document also places the spotlight on criticisms from the Competition Bureau. More on those concerns in a post tomorrow.
Comments (10)add comment

pat donovan said:

finally....
these are not the grounds I would've chosen to challenge the DRM.

it is good to see SOME action on it, thou.

'GMO'-type legislation is poisonous, even if it's constitutional modified regs. (CMR)

open information: the medical model says full disclosure is the only way to go... without getting sued into oblivion.

Is there a government in the world that knows this?

packrat


June 25, 2012

that guy said:

Violation of charter rights: 2(b)
Dear Dr. Geist,

I've posted on your blog quite a bit that C-11 violates 2(b) as it limits the expression of programmers yet you have never responded to these suggestions.

In your opinion, does C-11 violates section 2(b) of the charter?
June 25, 2012

Byte said:

Foreign DVDs
Suppose I was born and raised in Germany. Suppose further that a tv show the Show with the Mouse (Sendung mit der Maus) was my all-time favourite.

For my upcoming birthday, my brother buys a DVD-set and sends it to me in the mail (just the discs to keep postage down so he doesnt need a 2nd mortgage)

I have no contract with anyone that I agreed to. I can't play the R2 discs on my R1 player without entering a 4-digit code on the remote.

Am I now a criminal?
June 25, 2012

House said:

@Byte
YES




Heil Harper!
June 25, 2012

Mark said:

...
Mr. Geist.... I perceive that trying to suggest that they should link circumvention to infringement is problematic for any hope of fair use or fair dealing, because if circumvention is simply legally linked to infringement, then simply circumventing *IS* infringement... and no fair use exists at all.

I think, in fact, that much clearer wording is needed, if the intent is to actually still allow people the privilege of being able to legally make private or personal use copies that would not have been infringing at all in the absence of any digital locks.

Not being a lawyer, I can't say I'm certain what this wording should be, but I'm pretty sure that suggesting that they circumvention and infringement should be linked in any way could very well accomplish almost the exact opposite of what people who oppose the extreme digital lock prohibitions of C11 really desire.
June 25, 2012

tyson said:

How about kickstarting a constitution challenge
All we need now is a kickstart project so we can all contribute some funds to get this to the courts.

I would certainly contribute.
June 25, 2012

oldguy said:

@Mark
Wording..

"Circumvention should/would be illegal - when used for the purpose of infringement".

This is quite different than your interpretation. First the purpose would need to be analysed for intent. If the purpose cannot be construed as infringement, then circumvention shouldn't be illegal. The "linkage" between copyright infringement and TPM circumvention that everyone is talking about.

Right now in C-11, circumvention is illegal regardless of intent. There are only narrow exceptions. I have been through C-11 a few times. It looks like it would "allow" public domain works to be protected by TPM measures, and it would be illegal to break the TPM, while perfectly legal to use the resulting works for any purpose - once broken. I doubt such a case would survive a court challenge, but the law appears to allow such a case to be brought to the courts ($$$$ to defend).

There are other nonsensical loopholes in the way C-11 treats TPM measures, similar to what Byte has pointed out above. All of them because the act of TPM circumvention isn't linked to the purposes of copyright infringement. For these reasons, the TPM in C-11 isn't generally taken seriously, even by people that generally treat copyright seriously.

There was even an article here a few days ago that boiled down to criticism by investigators charged with looking for copyright infringement. They can't even "lift the covers" of TPM to see if what is being protected, is material that might infringe copyright. They can legally lift the TPM if they have other evidence that indicates such infringement, but they can't "sift" massive amounts of data looking for potential infringement. Think of it as the "bar" required to obtain a search warrant by police, in this case they need to meet a similar kind of "evidence bar" before they can legally lift the TPM while searching for infringement. If they lift the TPM without that prior evidence (and a legal trail to prove it), any proof they find of infringement is inadmissible in court.
The recommended solution was to link the illegality of TPM removal with the purposes of copyright infringement. Since their "purpose" isn't to infringe copyright (quite the contrary), they could lift the TPM and scan anything with impunity.

Fair use/dealing is a whole different ball of wax. It relates to how much of the copyrighted material is used without license, and for what purposes. The current TPM measures prevent *any* fair use of TPM protected works. If the measures were linked to the "purpose" of copyright infringement, it becomes much closer to today's rules surrounding fair use/dealing.

Only the lawyers can win.

June 25, 2012

Brian said:

Does Perceptual Disabilities include Learning Disabilities in Bill C 11?
I have a non verbal learning disability. This makes activities such as understanding what I read silently to myself more difficult and time consuming. Also, my eyes don't track properly across the page when reading unless I use Kurzweil 3000 or similar software.

Given my extensive use of assistive technologies, especially text to speech and speech to text I fear that I'll literally be locked out of everything from digital educational materials to entertainment software and other programs if section 41 of bill C-11 is not updated to allow for the breaking of digital locks (for non-infringing purposes).

This is already happening. Amazon, for instance, disables the text to speech feature on its Kindle for books where the copyright holder requests it. If I want the text to speech feature re-enabled for a particular book I have to pay more for it. I don't think that's fair. I'm being charged more just because of *how* I read the book (by listening to it instead).

Since Bill C 11 gives priority status to digital locks with no accessibility requirements I can only predict more Amazon Kindle style examples at best and total inaccessibility at worst.

I therefore ask the Harper Government to make it illegal for digital locks to block format shifting or otherwise render the content/program inaccessible for those of us with disabilities and also to make it legal to break digital locks for any non-infringing purpose.
June 26, 2012

Devil's Advocate said:

Maybe actually a brilliant plan by the Cdn/Harper Govt?
Perhaps this is part of a well-thought out strategy on how to make everyone happy. Perhaps the PM has a personal memo that reads something like the following:
1. Agree to do what you can to satisfy USTR's/lobbies' demands.
(Note: USTR getting wise to "Canadian-style" diplomacy i.e. agreeing to something but then actually doing something else. Need new strategy.)
2. Draft law that contains a lot of consumer-friendly provisions (fair dealing) so electorate will be happy but save one piece that will make the USTR happy but will probably be deemed unconstitutional. (Make sure DOJ thinks it will be, anyway. Save paper trail to be found by Dr. Geist.)
3. Pass law. Use opportunity to say this is good for users and creators. (Should partly make up votes lost from cuts to arts funding.)
4. When courts strike down law, you can say "we tried" to the Americans.
5. I don't have to worry getting caught copying/using other peoples' works to promote myself or watching DVDs from other regions (love that Indian dancing) and being painted as a law-breaker/hypocrite.
June 26, 2012

Mark said:

...
@Oldguy: I'm not suggesting that *I* don't understand the intent of the expression "linking circumvention to infringement", nor am I arguing that any reasonable person would. I am, however, suggesting that I do not think it is beneath the advocates of this bill to try and deliberately twist its meaning and satisfy its literal interpretation, while accomplishing exactly the opposite of what was being asked.
June 27, 2012

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