Tuesday July 27, 2010
Yesterday's U.S. DMCA
which established a series of new anti-circumvention exceptions,
attracted considerable attention on both sides of the border. In
U.S., critics of the DMCA noted the progress
in addressing some of the DMCA's most troubling consequences by
creating exceptions for unlocking and jailbreaking cellphones and
circumventing DVD locks in several circumstances (though the decision
is hardly a panacea given the restrictions on distributing
circumvention tools, contractual restrictions, and the absence of a
general right to circumvent for lawful purposes).
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
designed to last ten years, yet the scope of Bill C-32's
anti-circumvention exceptions became outdated in less than ten
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,
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
in the bill - digital locks and fair dealing - Canada is far more
restrictive than the U.S. Consider:
TagsShareTuesday July 27, 2010
Monday July 26, 2010
Since the introduction of Bill C-32, I have consistently argued
that the digital lock provisions are far more restrictive than what is
required under the WIPO Internet treaties. Now two recent
in the U.S. demonstrate that the Canadian proposal is also considerably
restrictive than what is found in the U.S.
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
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.
TagsShareMonday July 26, 2010
Monday July 19, 2010
Maclean's Andrew Potter has a must-read opinion
that links Industry Minister Tony Clement's response to the census
issue with the Canadian Heritage Minister James Moore's copyright bill
response. While Potter makes the political link, Howard Knopf
the policy dots in this post.
TagsShareMonday July 19, 2010
Wednesday June 16, 2010
The federal government’s national consultation on a digital economy strategy is now past the half-way mark having generated a somewhat tepid response so far. My weekly technology law column (Toronto Star version, homepage version) argues the consultation document itself may bear some of the blame for lack of buzz since the government asks many of the right questions, but lacks a clear vision of the principles that would define a Canadian digital strategy.
One missed opportunity was to shine the spotlight on the principle of "openness" as a guiding principle. In recent years, an open approach has found increasing favour for a broad range of technology policy issues and has been incorporated into many strategy documents. For example, New Zealand identified "openness is a central principle of [its] Digital Strategy 2.0."
The consultation document includes a brief reference to open access for government-funded research, but it seemingly ignores the broader potential for a strategy with openness policies as a key foundational principle.
Where might an openness principle make sense?
TagsShareWednesday June 16, 2010
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