Appeared in the Toronto Star on August 2, 2010 as U.S. Move to Pick Digital Locks Leaves Canadians Locked Out Since its introduction two months ago, the government’s copyright reform package has generated widespread debate over whether it strikes the right balance. The digital lock provisions have been the most […]
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The U.S. DMCA vs. Bill C-32: Comparing the Digital Lock Exceptions
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 legislation designed to last ten years, yet the scope of Bill C-32’s anti-circumvention exceptions became outdated in less than ten weeks. 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, weeks 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 issues in the bill – digital locks and fair dealing – Canada is far more restrictive than the U.S. Consider:
U.S. Developments Demonstrate Canada’s C-32 Digital Lock Rules More Restrictive Than DMCA
First, a significant new appellate court case from the 5th Circuit Court of Appeals has concluded that the restrictions on circumventing an “access control” (ie. a digital lock that restricts access to a work rather than a copy control which restricts copying of a work) are far more limited than previously thought. With language that bears a striking similarity to those arguing circumvention should be permitted for lawful purposes, the U.S. appeals court states:
Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.
In other words, the U.S. court has found that DMCA is limited to guarding access controls only to the extent that circumvention would violate the copyright rights of the copyright owner. This is very similar to what many groups have been arguing for in the context of Canadian legal reform.
U.S. Caves on Anti-Circumvention Rules in ACTA
Before examining the changes, it should be noted that there remain doubts about whether this chapter even belongs in ACTA. Both Canada and Mexico have reserved the right to revisit all elements of this chapter at a later date, suggesting that both countries have concerns about the digital enforcement chapter. Moreover, there are still disputes over the scope of the Internet chapter, with the U.S., Australia, NZ, Canada, Singapore and Mexico seeking to limit the chapter to trademark and copyright, while Japan, the EU, and Switzerland want to extend it to all IP rights. Without resolving this issue, there is no digital enforcement in ACTA.
The Anti-Circumention Provision
NDP MP Denise Savoie on C-32: Concerned With Digital Locks, Supports Fair Dealing
NDP MP Denise Savoie, who chairs the All-Party Arts Caucus, has written to a constituent with her views on C-32. Savoie expresses concern with the digital lock provisions and support for the fair dealing reforms, including the new exception for education.