Setting the Record Straight: 32 Questions and Answers on C-32's Digital Lock Provisions, Part Three

Thursday June 10, 2010
The first two posts on the 32 Questions and Answers on Bill C-32's digital lock provisions focused first on general issues in the bill and second on C-32's circumvention exceptions.  Today's post discusses the missing exceptions - circumvention exceptions found in other countries but missing from the Canadian bill. For those that want it all in a single package, I've posted the full series as PDF download.

The Missing Exceptions

This section features answers to the following questions:
  • Does C-32 include "authorized circumventers" as is used in New Zealand to facilitate legal circumventions?
  • Are companies required to unlock locked content for legal purposes under C-32?
  • Does C-32 include an exception for non-infringing access, such as accessing DVDs from other regions?
  • Does C-32 include a circumvention exception for personal uses?
  • Does C-32 include a circumvention exception for digital archiving?
  • Does C-32 include a circumvention exception to protect minors?
  • Does C-32 include a circumvention exception for filtering software programs?
  • Does C-32 include an exception for circumventing digital locks that become obsolete or broken?
  • Does C-32 include an exception for court cases, laws, and government documents?
  • Bill C-32's digital lock provisions apply to copyrighted works.  Does that mean that public domain (ie. out-of-copyright) works are not affected?

Does C-32 include "authorized circumventers" as is used in New Zealand to facilitate legal circumventions?

No. New Zealand's copyright law introduces the concept of "qualified circumventers." The law grants special rights to trusted third parties who are permitted to circumvent on behalf of other users who are entitled to circumvent but technically unable to do so.  The current list of qualified circumventers includes librarians, archivists, and educational institutions. This approach rightly recognizes that many people will be unable to effectively use the exceptions inserted into the law.  By creating a class of trusted circumventers, the law creates at least one mechanism to ensure that users retain their existing copyright rights.

Are companies required to unlock locked content for legal purposes under C-32?

No. Many countries have recognized the danger that combination of DRM and anti-circumvention legislation may effectively eliminate user rights or copyright exceptions in the digital environment.  Creating exceptions is one way to address the issue, but another is to adopt an approach of "with rights come responsibilities."  In this case, if companies are going to obtain new legal rights for DRM, they must also shoulder the responsibility of unlocking their content when requested to do so by users for legal purposes.  This is a common theme in copyright laws around the world, which often identify courts, tribunals or mediators as the source to ensure that rights holders do not use DRM to eliminate user rights.

Does C-32 include an exception for non-infringing access, such as accessing DVDs from other regions?

No.  Bill C-32 prohibits the circumvention of TPMs that have absolutely nothing to do with infringing copying.  The most obvious example of this comes from the region coding found on DVDs and many computer games.  Many DVDs include Macrovision (designed to stop copying a DVD to VHS), Content Scramble System or CSS (the subject of important litigation involving DeCSS, a software program created to allow Linux users to play DVDs since they were otherwise unable to do so due to CSS), and region coding.

The premise behind region coding is fairly straight-forward. With DVD region coding, the world is divided into eight regions (Canada and the U.S. form Region One).  Consumer electronics manufacturers have agreed to respect region coding within their products by ensuring that DVD players only play DVDs from a single region.  The net effect is that Canadian-purchased DVDs will play on Canadian-bought DVD players, but DVDs purchased in Europe, Australia, or Asia (all different regions), are unlikely to work on those same DVD players (with the exception of those DVDs that are region coded zero, which can be played worldwide).

Note that the use of region coding has nothing to do with traditional notions of copyright law.  The underlying work may involve a copyrighted work - DVDs and video games regularly use region coding - yet the protection is designed to manipulate markets by restricting the ability to use fully authorized copies of works.  Many countries have recognized this by specifically excluding non-infringing access controls from their anti-circumvention legislation.  For example, New Zealand's copyright law includes a much different definition of technological measure, stating that:

for the avoidance of doubt, does not include a process, treatment, mechanism, device, or system to the extent that, in the normal course of operation, it only controls any access to a work for non-infringing purposes (for example, it does not include a process, treatment, mechanism, device, or system to the extent that it controls geographic market segmentation by preventing the playback in New Zealand of a non-infringing copy of a work)

Section 53a of Norway's anti-circumvention law states that the provisions shall not "hinder private users in gaining access to legally acquired works on that which is generally understood as relevant playback equipment," while Finland's law expressly permits circumvention for non-infringing uses of lawfully acquired copies.  The failure to include such a provision under Bill C-32 is a striking failure that must be remedied.

Does C-32 include a circumvention exception for personal uses?

No.  While other countries provide a blanket exception for personal use and establish a corresponding circumvention exception, Bill C-32 does not.  For example, Lithuania's anti-circumvention provisions include a specific exception that preserve this personal use right by requiring content owners to enable legitimate uses. This approach has the benefit of not only preserving personal uses, but also placing the obligation on those that use TPMs to ensure that the public retains its rights. 

Does C-32 include a circumvention exception for digital archiving?

No.  While many countries have expressed concern about the impact of TPMs on the preservation of digital materials, Bill C-32 only exacerbates the problem by not creating an exception for digital archiving.  Other countries have recognized this danger and sought to address it.   For example, the Czech Republic's copyright law provides at Article 37 that:

(1) Copyright is not infringed by a library, archive, museum, gallery, school, university and other non-profit school-related and educational establishment:
a) if it makes a reproduction of a work for its own archiving and conservation purposes, and if such a reproduction does not serve any direct or indirect economic or commercial purpose;

That country's anti-circumvention provisions then specify at Article 43(4) that:

Legal protection under Paragraph (1) [the anti-circumvention provision] above shall be without prejudice to the provisions of . . . Article 37 (1) (a) . . . to the extent necessary to benefit from the exception. An author who used technical measures under Paragraph (3) in respect of his work shall make his work available to lawful users to the extent necessary to fulfill the purpose of the stated exploitation of the work.

It is difficult to understand how a government can intentionally introduce legislation that will cause clear harm to the preservation of a country's own digital heritage.

Does C-32 include a circumvention exception to protect minors?

No. An exception that surprisingly is not included in Bill C-32's anti-circumvention provisions is an exception to protect minors.  How does this arise in the context of copyright?  One obvious example are parents who wish to stop their children from watching certain scenes in a movie.  There are services such as ClearPlay that purport to edit out sex, violence, and profanity from regular DVD movies.  Regardless of one's view of such practices, surely it ought to be the right of a parent who has purchased the DVD edit a scene for their family's personal viewing purposes.  Yet under Bill C-32, a parent who wants to shield their children from such content risks violating the law in order to do so.

Creating an explicit exception for the protection of minors is fairly common in other countries.  Taiwan's anti-circumvention provisions include a blanket exception to protect minors (Article 80ter), while Singapore's Copyright Act features an exception to the anti-circumvention provision where the circumvention is "to prevent access by minors to any material on the Internet." There may well be other instances where a parent or school wishes to protect minors but faces the prospect of violating the law by circumventing a digital lock.

Does C-32 include a circumvention exception for filtering software programs?

No. As part of the U.S. Copyright Office's DMCA rulemaking procedure (under which it identifies non-infringing uses that are hampered by the DMCA), the Office has twice issued an exemption for circumvention of filtering software programs in order to identify the list of sites included within the program.  Filtering programs can be used to filter or block inappropriate material, yet the same programs have been subject to considerable criticism over concerns that they may be overbroad and block perfectly legitimate material.  The only way for a party to ascertain whether their site is included on the block list is to access the lists contained in the software program, a process that typically requires circumvention.

In 2000, the Copyright Office found that an exception for filtering programs was needed.  It reaffirmed the decision in 2003.  In 2006, Seth Finklestein, the primary supporter of the "censorware" exception abandoned the fight for another renewal and the exception was dropped.  The same concerns remain, however, which is why a clear exception for the circumvention of filtering programs is needed within Bill C-32.

Does C-32 include an exception for circumventing digital locks that become obsolete or broken?


No.  The inclusion of a right to circumvent in the event that the TPM breaks or becomes obsolete should be relatively uncontroversial.  The U.S. Registrar of Copyrights has included a specific exception that addresses this situation since 2000.  The exception reflects the recognition that the continual evolution of technology places the investment that consumers make in entertainment and software products or that libraries make in materials at risk in the event that a TPM ceases to function or becomes obsolete.  While products do not come with a guarantee to function forever, the law should not impair consumers and libraries that seek to circumvent technologies that are no longer supported and thus create a significant barrier to access to their property.

Despite the obvious, recognized need for such an exception, Bill C-32 does not address the issue.  There is a limited exception for software interoperability, but that provision does not come close address the concerns associated with obsolete or broken TPMs.  Given the frequent changes in technology, it is a question of when, not if, technologies become obsolete.  Bill C-32 must anticipate these technological changes by providing a right of circumvention due to obsolete or malfunctioning TPMs.

Does C-32 include an exception for court cases, laws, and government documents?

No. In order for the public to know their legal rights and obligations, access to the law is widely viewed as essential.  Yet there is real danger that these kinds of materials - court decisions, legal statutes, and other government documents - could end up locked down using digital rights management.  Other countries have recognized the danger of mixing digital locks, anti-circumvention legislation, and legal materials.  For example, Sweden's implementation of anti-circumvention legislation tries to ensure access to court cases and government documents that are subject to TPMs.  Canadians surely should enjoy full access to the law without the prospect of fears that they might violate the very law they are trying to access by circumventing a digital lock.  An exception in Bill C-32 for this form of content is certainly needed.

Bill C-32's digital lock provisions apply to copyrighted works.  Does that mean that public domain (ie. out-of-copyright) works are not affected?

No.  Concerns about the impact of anti-circumvention legislation on public access and use of public domain materials is frequently addressed by arguing that the legislation only protects works that are subject to copyright.  Since public domain materials fall outside that definition, works such as old public domain films that are enclosed with DRM could be lawfully circumvented.  Those assurances notwithstanding, without the inclusion of a public domain circumvention right, circumventing DRM on works that combine public domain content with materials still subject to copyright could give rise to liability.  In other words, pure public domain may be circumvented (provided you have the tools to circumvent), but once someone builds on a public domain work, they will benefit from the anti-circumvention provisions.

This is a particularly pronounced concern for historians, archivists, and film scholars since their ability to use public domain film or video may be limited by anti-circumvention legislation.  For example, the distributor of a DRM'd DVD containing public domain films along with an additional commentary track would likely argue that there is sufficient originality such that the DVD is subject to copyright and that anti-circumvention provisions apply. While even supporters of the DMCA acknowledge that anti-circumvention legislation should not be used to privatize the public domain, they are loath to establish a full exception or circumvention right for public domain materials, arguing that all works contain some elements of the public domain and that a blanket exception could be used to cover virtually any circumvention.

A middle ground on this issue would include at least two provisions. First, a right to circumvent where the underlying work contains a substantial portion of public domain materials.  The definition of "substantial" will obviously be crucial, but policy makers and legislative drafters must err on the side of ensuring that the public domain is not inappropriately enclosed.  Second, given that anti-circumvention legislation encourages the use of DRM, the government should establish a policy that actively discourages its use on public domain materials.  This could be achieved by blocking the right to use such technologies where non-DRM'd versions of the same works are not reasonably available to the general public.