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.
