The Missing Copyright Docs, Pt 2: Competition Bureau Warned About Digital Lock Competition Concerns
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Tuesday June 26, 2012
Yesterday I posted
on the government's
on the constitutional risks associated with digital lock rules found in
Bill C-11 including the constitutional warnings issued by the
Department of Justice. The same
obtained under the Access to Information Act also notes that the
Competition Bureau raised concerns about digital locks. The document
The Canadian Competition Bureau has
raised some specific concerns about digital locks:
The Bureau also notes that, although
the Competition Act does not expressly discuss the essential facilities
doctrine in the context of IP rights, potentially relevant provisions
of the statute include Section 75 that deals with refusal to deal, and
Section 79 that is directed to the abuse of dominant position. The
essential facilities compels a dominant or monopoly owner of a
resource, access to which is considered "essential" for effective
competition, to provide such access to competing firms.
- Limiting inter-operability such that only particular devices can
function with the purchased product;
- Situations may arise where, in order to use a copy protected
product, the consumer would also have to purchase a particular type of
player or device, which might raise an instance of tying under the
- In addition, while the concept has not yet been employed by any
Canadian courts, it is possible that TPMs that restrict access to, or
use of, a legally-acquired copy of a work would be the basis for a
"copyright misuse" claim.
- Lastly, to the extent that TPMs restrictions on the ability of a
purchaser to access and use a legally acquired copy of a work are
inconsistent with the advertised attributes of the work, this could
form the basis for a misleading advertising charge pursuant to Section
52 of the Competition Act.
I identified some of these issues in an article titled Anti-circumvention
Legislation and Competition Policy: Defining a Canadian Way?, which
I wrote in 2005 for the first book I edited on Canadian copyright
the Public Interest: The Future of Canadian Copyright Law.
It is very notable that the Competition Bureau has voiced concerns
about the potential for anti-competitive conduct with digital locks.
Yet despite the warnings, the approach in Bill C-11 encourages their
use by granting business models that employ digital locks the power to
trump other rights contained in the Copyright Act.
Tuesday June 26, 2012