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    The U.S. DMCA vs. Bill C-32: Comparing the Digital Lock Exceptions

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    Tuesday July 27, 2010
    Yesterday's U.S. DMCA Rulemaking decision, which established a series of new anti-circumvention exceptions, attracted considerable attention on both sides of the border.  In the 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 legislation designed to last ten years, yet the scope of Bill C-32's anti-circumvention exceptions became outdated in less than ten weeks.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:

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    U.S. Developments Demonstrate Canada's C-32 Digital Lock Rules More Restrictive Than DMCA

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    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 developments in the U.S. demonstrate that the Canadian proposal is also considerably more 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 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.


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    Potter on the Link Between the Census and Copyright

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    Monday July 19, 2010
    Maclean's Andrew Potter has a must-read opinion piece 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 connects the policy dots in this post.
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    Opening Up Canada's Digital Economy Strategy

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    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?


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