The 30 Days of DRM highlights some of the exceptions and limitations that the government should include if a Canadian DMCA is introduced. Contribute to the discussion through the 30 Days of DRM Wiki.
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Wednesday April 11, 2007 |
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As part of my 30 Days of DRM series last summer, I called for the creation of a new collaborative body that would provide on-demand reviews for new circumvention rights. I argued that the U.S. DMCA process, which occurs once every three years, simply does not provide the public with sufficient protection against DRM misuse and the need to identify potential exceptions rapidly. Today, Nicolas Jondet reports that France has moved in precisely this direction. Effective this month, there is a new French DRM agency charged with focusing on interoperability and ensuring that users are not prevented by DRM from utilizing copyright exceptions (or user rights). The agency is composed of six members and has the power to levy significant fines. While the agency isn't perfect - private copying is largely excluded from its ambit - it is a step in the right direction and represents yet another illustration of protection from DRM. 30 days of drm, drm, france, interoperability, watchdog Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday April 11, 2007 |
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Tuesday January 16, 2007 |
Many readers will know that over the summer I launched a 30 Days of DRM series that focused on the concerns associated with DRM and anti-circumvention. Day Seven called for DRM-free library deposits. Well, one down and 29 to go - my weekly Law Bytes column (Ottawa Citizen version, homepage version, BBC international version) highlights recent changes to Canada's legal deposit regulations designed to accommodate the emergence of online publications and to address the DRM issue. Canada introduced mandatory legal deposit in 1953, requiring publishers to provide copies of all published books to the National Library of Canada. With little fanfare, the rules for legal deposit have gradually been adapted to the Internet and digital technologies. In 2004, the government granted the Library and Archives Canada, the successor the National Library, the right to sample web pages in an effort to preserve noteworthy Canadian websites. The Internet sampling provision has been used to gather copies of political party websites as well as a handful of notable blogs.
As of January 1st of this year, the rules have changed yet again as Canadian Heritage Minister Bev Oda introduced new regulations to accommodate the emergence of online publications and to address the concerns raised by digital technologies that potentially impede access. The latest changes will require many online-only publishers to begin submitting their publications to the LAC. The rules disappointingly stop short of requiring all publishers to submit electronic versions of paper-based documents, however. Such a requirement should be considered in the future to facilitate the creation of a national digital library.
The new rules also address mounting concern about the potential impact of DRM to deny future generations access to the publications in digital form. Read More ...
DRM has been viewed as a threat by many within the library community, who fear that they and their patrons may literally be locked out of digital works as DRM systems are used to restrict otherwise legitimate access or become obsolete. In response, Ottawa has implicitly acknowledged that the DRM-related concerns necessitate legal intervention. The regulations now require publishers to decrypt encrypted data contained in a publication and to remove or disable systems designed to restrict or limit access to the publication before submitting it to the LAC. Moreover, publishers are required to also provide the LAC with a copy of the software necessary to access the publication, the technical information necessary for access, and any "meta-data" associated with the electronic publication.
These regulations mark the first time that the Canadian government has stepped in to protect the public interest against the potential negative consequences of DRM. Given these new legal deposit program provisions, thousands of libraries across Canada may soon demand similar protections for their electronic publication collections, which now account for as much as 25 percent of library budgets.
30 days of drm, copyright, drm, library deposit Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday January 16, 2007 |
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Monday September 18, 2006 |
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Update (December 3, 2007) - I have posted a newly updated version of what you can do in light of the forthcoming Canadian DMCA. The posting includes a YouTube video, a Facebook group, and updated contact information.
Update (November 29/07): With a Canadian DMCA seemingly imminent, the importance of speaking out has never been more important. Some details on the likely new bill can be found here. I've updated the 30 Things You Can Do to reflect the new Ministers. The House of Commons is back in session and, as I promised last month, the 30 Days of DRM project has now concluded. The postings remain accessible via the 30 Days of DRM page, the wiki, and a new PDF version that incorporates all postings into a single document.
The project generated considerable commentary online and lots of email offline. The most frequently asked question provides reason for optimism as many people simply asked "what can I do?" I typically responded that the best starting point was to write to their local Member of Parliament. Upon reflection, there is more that can be done and to that end, I offer up 30 things you can do about the issues raised by the 30 days of DRM project.
Read More ...- Write to your local Member of Parliament. Letters (which are better than email) from just a handful of constituents is enough to get the attention of your local MP. Contact information for all MPs is available here. Online Rights Canada also provides an easy way to write to your local MP.
- Write to the Prime Minister of Canada. Contact information here.
- Write to
Bev Oda Josee Verner, the Minister of Canadian Heritage. Minister Verner is one of the two ministers responsible for copyright policy in Canada. Prior Canadian Heritage Ministers have been perceived to be close to U.S. copyright lobby groups and copyright collectives. Ministry contact information here. Minister Oda's contact information here. Minister Verner's contact information is here.
- Write to
Maxime Bernier, Jim Prentice, the Minister of Industry. Minister Prentice is responsible for the Copyright Act in Canada. Despite the fact that Minister Prentice trumpeted his pro-consumer approach on the spectrum auction issue, the rumour mill suggests that he supports DMCA-style reforms. Minister Bernier's contact information here. Minister Prentice's contact information is here.
- Ask each political party where it stands on copyright. Copyright policy could prove to be a divisive issue in the months ahead - ask each political party for their views on the issue.
- Write to Canadian Heritage's Copyright Policy Branch. The Copyright Policy Branch is home to a large contingent of bureaucrats focused on copyright matters. Contact information here.
- Write to Industry Canada's Intellectual Property Policy Directorate. The IPPD is Industry Canada's counterpart on copyright policy, though it addresses a broader range of IP issues. Contact information here (scroll to the bottom).
- Write to your local Member of Provincial Parliament or Member of the Legislative Assembly. There is a strong provincial dimension to copyright reform, particularly given its impact on education, privacy, consumer issues, and property rights. The provinces have remained largely silent on copyright, yet they may be forced to address many of the unintended consequences that arise from federal Copyright Act reform. Contact information for Ontario MPPs here.
- Write to your Provincial Minister of Education. Earlier this month, I wrote about the troubling advocacy of Canada's Ministers of Education, who are seemingly willing to trade an unnecessary Internet exception for anti-circumvention legislation. Contact information for Ontario Minister of Education Kathleen Wynne is here.
Sandra Pupatello here. For the other Ministers of Education here.
- Write to your local school board. Local school boards can play an important role in the copyright reform process by engaging teachers, parents, and students (witness the recent reaction of several boards to the Captain Copyright issue). Contact information for Ontario school boards here.
- Write a letter to the Department of Foreign Affairs on Canada's international copyright position. Canada has remained disappointingly silent on important international copyright issues at WIPO (for example, see my recent column on the WIPO Broadcast Treaty). DFAIT should be standing up for Canadian interests at such international meetings as well as during bi-lateral trade negotiations with the United States. Contact information here.
- Write to Library and Archives Canada to ask that it support the preservation of Canadian heritage. The LAC should be a leading voice against the use of DRM that could lock Canadians out of their own heritage. It could advocate for DRM-free deposits, reforms to facilitate Canadian digitization programs, and the preservation of all user rights. Contact information here.
- Write to the Competition Bureau of Canada. The combination of DRM and anti-circumvention legislation raises significant marketplace competition concerns. The Competition Bureau must become engaged on this issue by advocating pro-competitive reforms. Moreover, it should be investigating cases of alleged abusive use of DRM. Contact information here.
- Write the Office of Consumer Affairs or your provincial consumer protection ministry. The use of DRM raises numerous consumer concerns, potentially requiring specific consumer protection provisions and labeling requirements. The federal OCA can be contacted here. Provincial contacts here.
- Write to your federal or provincial privacy commissioner to ask for their support in protecting your personal privacy against DRM. Several of Canada's privacy commissioners have publicly called on the government to address the privacy concerns associated with copyright reform, a position which deserves public support. Privacy commissioner contacts here.
- Raise the issue with your local library. The library community has been very engaged on copyright and will undoubtedly be a vocal stakeholder for any future reforms. At the local level, libraries can be encouraged to establish copyright policies that fully support user rights and to educate the local community on important access issues. Ontario public library directory here.
- Raise the issue with your local school. If you are in school or have children currently in school, inquire how the school addresses copyright issues. Does it take full advantage of user rights? Is it aware of how the education exceptions may be limited by anti-circumvention legislation?
- Sign a petition. There are petitions calling on the Canadian government to adopt a balanced approach to copyright here and here.
- Add your name to the Online Rights Canada mailing list. Online Rights Canada is a grassroots advocacy group that brings together EFF and CIPPIC to focus on online rights issues. Mailing list information here.
- Buy online DRM-free alternatives. The copyright lobby argues that DRM is a pre-requisite to offering digital content online, yet there are many DRM-free online music services. For example, eMusic, the largest such service, is now the second largest online music service worldwide.
- Support music labels that offer their music without DRM or copy-controls. This one is easy since virtually every Canadian label does not use copy-control technologies. The exceptions are the foreign labels represented by CRIA such as Sony BMG.
- Ensure that your local retailer will accept returns on DRM'd products. Many retailers sell DRM'd products without altering return policies to account for the fact that the products may not function as expected. Raise this with your local retailer and encourage them to adopt liberal return policies for DRM'd products.
- Ask your ISP what it is doing to stand up for your rights. Canada's Internet service providers play an important role in defending user rights by only disclosing subscriber personal information with a court order, informing subscribers of requests for their personal information, and by lobbying for an expanded fair dealing provision. Ask your ISP for its policies on these issues.
- Participate in a local meeting on copyright. There are a growing number of local "meetup" style meetings that bring together citizens concerned with balanced copyright. If there is a meeting group in your area, go. If not, get one started.
- Support more balanced copyright positions from artists and creator groups. Many artists and creators are increasingly abandoning policy positions that favour U.S. style reforms and instead embracing a more balanced approach. If you are a musician, consider joining the CMCC. If you are an artist, consider joining the Appropriation Art coalition. If you are a writer, consider pushing for change within Access Copyright.
- Use Creative Commons licensing. Creative Commons, which adopts a "some rights reserved" approach to copyright provides an exceptional (and exceptionally easy) method of supporting both copyright and access. More information on the Canadian licenses here.
- Read license terms. Day 30 of the project focused on the increasing use of contract to limit or eliminate user rights. Until legislation blocks the use of such terms, consumers should proactively read license terms and reject those that unfairly limit their user rights.
- Track media coverage of copyright. Until recently, media coverage on copyright rarely questioned the sound bites from the copyright lobby. That is changing, but Canada's media should be challenged when it fails to do so. Letters to the editor or a op-eds are a great place to start.
- Educate yourself. The 30 Days of DRM project should be a beginning, not the end. There are lots of great sources on the implications of copyright reform, many of which are listed on my blogroll. One useful source is In the Public Interest: The Future of Canadian Copyright Law, a book published last year by Irwin Law under a Creative Commons license. The book, which I edited, features contributions from 19 professors from across Canada. You can also listen to a podcast version of my Hart House lecture from earlier this year which also touched on these issues.
- Educate others. Once you know more about copyright reform issues, tell others. Educate friends, family, and co-workers. Copyright impacts us all.
Update: Many people have written to ask for specific advice about letters to their MP. I am very reluctant to tell anyone what they should say to their elected representative or other groups with a voice on copyright reform. Rather, my hope is that the 30 Days of DRM series provides some of the background materials needed for people to form their own opinions on the issue. However, it should be noted that Online Rights Canada's letter writing feature provides some customizable advice on the letter's content. |
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Sunday September 17, 2006 |
Yesterday's post identified the availability of circumvention devices as a one foundational issue. The second foundational issue is protection against contracts that seek to trump the law by contracting out of the copyright balance or, in the event that anti-circumvention legislation is introduced, statutory circumvention rights. The use of contractual terms to effectively void privacy protection or basic user rights has become all too common with cases such as the Sony rootkit providing a classic example of how contractual terms that quash important legal rights are buried beneath the "I agree" button.
Governments are understandably loath to intervene in privately negotiated contracts. However, not every contract or contractual term is enforceable - there are certain terms (and certain contracts) which run counter to important public policy goals that will often be rendered unenforceable by a sympathetic court. On this particular issue, we should not wait for the courts to intervene. Rather, Canada should identify the core protections and policies that underlie the copyright balance and establish rules that prohibit attempts to "contract out" of such terms.
The copyright lobby will obviously object, arguing that this constitutes an inappropriate intervention into the market. Yet anti-circumvention legislation is also an intervention into the market. I remain steadfast against such legislation (even more so having completed 30 days of discussion), however, if anti-circumvention legislation is to become part of the Canadian legal landscape, then this tradeoff must be part of the bargain. If the copyright lobby wants its anti-circumvention rules, it must also accept statutory limits on the contractual terms associated with their use.
30 days of drm, contract, drm Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareSunday September 17, 2006 |
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Saturday September 16, 2006 |
Over the past 28 days, this series has addressed circumvention issues both big and small. I have saved the two most important issues for the end since I believe that without addressing these two issues, many of the other recommendations are rendered ineffective.
The first issue is that Canada must not establish a ban or prohibition on devices that can be used to circumvent DRM. Bill C-60 did not contain a provision prohibiting circumvention devices and that approach should be retained in any future legislation.
The DMCA features just such a ban. Section 1201(a)(2) provides that:
No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that -
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
The DeCSS case demonstrated the breadth of this approach when merely linking to a devices (devices really refers to software that is able to crack a DRM system) was ruled sufficient to violate the statute.
The past 28 days have illustrated that there are numerous legitimate uses for all circumvention devices.Read More ...
The DMCA provisions seek to ban devices that are primarily designed to circumvent a TPM with only limited purposes other than circumvention. Yet this is precisely what is needed to allow security companies to do their work, for researchers to conduct their research, for individuals to protect their privacy, for the perceptually disabled to access content, for consumers to legitimately make backup copies, for libraries and the education community to take advantage of their exceptions, and for users to exercise their user rights. All of these activities - activities that are protected by law - depend on the ability to circumvent and therefore rely on the availability of tools that will allow for legitimate circumvention of DRM systems.
To create a basket of circumvention rights while simultaneously banning the availability of the tools necessary to circumvent is to neuter the right. There are no shortage of items that can be used for good or harmful purposes - drugs can save lives but result in an overdose or a hammer can be used to build a house but also be wielded as a weapon. There are both good and bad uses, yet we do not ban these items. We occasionaly regulate (either their distribution or the conduct associated with their use), but we do not ban. Canada similarly must not ban or prohibit circumvention devices that invariably serve numerous legitimate purposes.
30 days of drm, circumvention devices, copyright, decss, dmca, drm Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareSaturday September 16, 2006 |
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Friday September 15, 2006 |
The U.S. DMCA experience leaves little doubt that the introduction of anti-circumvention legislation will create some unintended consequences. No matter how long the list of circumvention rights and other precautionary measures, it is impossible to identify all future concerns associated with anti-circumvention legislation. The U.S. DMCA addresses this by establishing a flawed tri-annual review process. The system has not worked well, creating a formidable barrier to new exceptions and long delays to address emerging concerns.
If Canada establishes anti-circumvention legislation, it must also establish an impartial process that will enable concerned parties to raise potential new circumvention rights without excessive delay. The process must be fast, cheap, and easily accessible to all Canadians. It will require clear criteria for the introduction of new circumvention rights along with an administrative structure to conduct the reviews.
Read More ...The recent Australian review assessed each proposal on the basis of four criteria derived from the U.S. - Australia Free Trade Agreement: - The use of a work, performance, or phonogram must be non infringing;
- A work, performance, or phonogram that is used must be in a particular class of works, performances, or phonograms;
- An actual or likely adverse impact on the non-infringing use of a work, performance, or phonogram must be credibly demonstrated in a legislative review or proceeding; and
- The exception must not impair the adequacy of legal protection or the effectiveness of legal remedies against the circumvention of ETMs.
While there may be some concern that the Australian criteria itself is overbroad, the committee was able to apply it to numerous cases where it found a likely adverse impact, a non-infringing use, and where it was not persuaded that an exception would impair the adequacy of the DRM protection. The appropriate administrative structure is more difficult to identify. The Copyright Board of Canada is an obvious candidate, yet the lengthy hearing periods and the growing disenchantment with its processes suggest that it may not be the best choice. Given the marketplace concerns associated with TPMs, the Competition Bureau is another possibility, however, it also suffers from delays and insufficient administrative resources to address these issues. Perhaps the best approach would be the creation of a new collaborative body that brings together the expertise of the Copyright Board, Competition Bureau, Privacy Commissioner of Canada, as well as a handful of advisors from private sector groups with expertise in cultural matters, security, education, libraries, and consumer protection. This is not ideal, though neither is anti-circumvention legislation. Nevertheless, an on-demand review process for new circumvention rights is needed to counter the likely negative impacts that come with legal protection for DRM. |
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Thursday September 14, 2006 |
Government use of DRM represents a particularly difficult issue. Some argue that government should never use DRM systems (thereby eliminating the need for a circumvention right), maintaining that it runs counter other government priorities such as openness and accountability. Even governments themselves have acknowledged the problems associated with DRM. Last week, New Zealand issued guidelines on government use of DRM and trusted computing systems featuring a lengthy list of precautions and safeguards. They included requirements of minimal restrictions on content, assurances of future accessibility, full respect for privacy rights, retention of government control over a DRM-free version, and full access for all parties entitled to obtain the public information.
The Canadian government response to the DRM must address several issues. Read More ... First, it must determine whether the use of DRM is ever appropriate. Particularly given the policy decision to encourage DRM use through the establishment of anti-circumvention legislation, a government rejection of DRM would represent an important balance to that policy. Second, if the government identifies specific instances where DRM can be used, it must undertake a similar policy making exercise as the one just concluded in New Zealand to establish the necessary safety measures. The NZ policy document provides a useful starting point since it identifies a broad range of issues that must be addressed. Third, the government should consider linking this issue with the ongoing debate over the future of crown copyright. As I have written in the past, the government should be moving toward the elimination of crown copyright by removing any restrictions or requirements for prior permission for the use of government or government funded work. Crown copyright represents an important and unnecessary restriction on the access and use of public information. Eliminating those restrictions while treading carefully with respect to government use of DRM would mark an crucial development in public accountability, transparency, and the "modernization" of copyright law. |
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Wednesday September 13, 2006 |
Consultations on anti-circumvention exceptions in the U.S. and Australia have raised at least two circumvention rights that involve the right to circumvent to access concealed information contained in software code. In the U.S., there is a specific exception for circumvention to access the list of websites contained on "block lists" maintained by filtering companies, sometimes referred to as "censorware." Blocked access to these lists has been viewed as a free speech concern.
In Australia, Linux Australia recently requested a right to circumvent to investigate suspected copyright infringement. The group noted that open source developers would be unable to investigate suspected cases involving violations of open source software licensing agreements (which require users to make modifications available to the public) if the software vendor used a DRM system that blocked access to the underlying code. Without a circumvention right, attempts to circumvent the DRM to access the underlying code would constitute an infringement.
The commonality in these two cases is that there may be a public interest in gaining access to code that is concealed by DRM. Bill C-60 would have addressed this concern by only making it an infringement to circumvent for the purposes of copyright infringement. If that approach is abandoned, a general right of circumvention to access concealed information where there is a broader public interest concern at stake is needed.30 days of drm, censorware, copyright, drm, linux Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday September 13, 2006 |
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Tuesday September 12, 2006 |
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Section 32.1 of the Copyright Act features a list of several exceptions that ensure that the Copyright Act is compatible with other federal statutes that might require copying that would otherwise constitute infringement. While none of these exceptions are particularly crucial from a user perspective, the principle of consistently retaining the Act's prescribed exceptions is an important one. The statutory obligation provisions include disclosures under the Access to Information Act, the Privacy Act, the Cultural Property Export and Import Act, and Broadcasting Act requirements. The Access to Information Act may be relevant here given that DRM's submissions to the government could fall within an ATIP request. Similarly, the Broadcasting Act provision could become relevant. To address the issue, a blanket circumvention right to meet statutory obligations is needed.30 days of drm, copyright, drm, statutory obligations Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday September 12, 2006 |
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Monday September 11, 2006 |
Given that my column today focuses on the WIPO Broadcast Treaty, the issue of time shifting and DRM comes to mind. The concept of time shifting arose from the U.S. Supreme Court decision involving the legality of the Sony Betamax machine. Arguments before the court focused on the fact that taping television programs simply enabled users to shift the time when they watch the taped program. More than 20 years later, the VCR (and increasingly DVRs and PVRs) are commonplace and consumers give little thought to the legal consequences of copying television programs.
While such activity is protected in the U.S., there is nothing in the Copyright Act in Canada that would expressly permit time shifting.
Read More ... Canada is not alone in that regard - Australia faces the same issues and recently proposed an exception to allow individuals to make copies of television shows for viewing at a later time. The "modernization" of copyright in Canada should obviously address this issue as well, either by expanding the fair dealing user right such that home television taping would be permitted (as Telus recently advocated in a letter to Canadian Heritage Minister Bev Oda) or by establishing a specific user right to time shift. With a new time shifting user right in hand, the government will also need to ensure that the right is not rendered irrelevant through anti-circumvention legislation. Indeed, the WIPO Broadcast Treaty envisions providing specific legal protection for the use of technological protection measures on broadcasts, creating the prospect that the ability to time shift will be blocked by broadcasters who can then use anti-circumvention legislation to prohibit attempts to circumvent broadcast controls. A quick look at Canadian discussion lists devoted to digital cable suggests that this is already happening, as many users note that restrictions on digitally taping programs seem to come and go. Time shifting is well accepted practice and Canadian law needs an explicit time shifting right accompanied by a parallel circumvention right that preserves the ability to time shift. |
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