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    61 Reforms to C-61, Day 38: TPMs - No DRM Regulatory Authority

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    Wednesday August 13, 2008
    One of the ongoing concerns with anti-circumvention provisions is the prospect that the legal rules create incentives to use - and possibly misuse - DRM.  France, which many people hold up as an example of a country that prioritizes copyright and creator protection, has many of the same concerns about DRM misuse and the lack of interoperability.  Its copyright law establishes a DRM authority which is charged with ensuring interoperability. The authority is an independent administrative body focused on DRM.  It submits an annual report to the government and may appear before parliamentary committees on future copyright law reforms.  The creation of a specific body to address these issues is an acknowledgement of the need for regular review of concerns arising from the use of DRM supported by anti-circumvention legislation.  Bill C-61 contains no such acknowledgement or awareness of the prospect of unintended consequences from this legislation.
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    61 Reforms to C-61, Day 37: TPMs - No Requirement to Unlock for Exceptions

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    Tuesday August 12, 2008
    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 comes 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 rightsholders do not use DRM to eliminate user rights.  Three examples of many:

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    61 Reforms to C-61, Day 36: TPMs - No Identification of Authorized Circumventers

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    Monday August 11, 2008
    The removal of the provisions that target the legality of circumvention devices is one way to help ensure that the law does not eliminate basic copyright user rights.  There are other approaches, however, that can be introduced in tandem with that change. New Zealand's new 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. Section 226E(2) of the New Zealand law provides that

    The user of a TPM work who wishes to exercise a permitted act under Part 3 but cannot practically do so because of a TPM may do either or both of the following:

    (a) apply to the copyright owner or the exclusive licensee for assistance enabling the user to exercise the permitted act:
    (b) engage a qualified person to exercise the permitted act on the user ’s behalf using a TPM circumvention device, but only if the copyright owner or the exclusive licensee has refused the user's request for assistance or has failed to respond to it within a reasonable time.

    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.
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    61 Reforms to C-61, Day 32: TPMs - Perceptual Disability Provisions May Violate AODA

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    Tuesday August 05, 2008
    In light of yesterday's posting on the perceptual disabilities exception, which I argue creates a huge barrier for Canadians with disabilities since they will be unable to legally access devices that can be used to circumvent, it is worth considering whether Bill C-61 violates the spirit and letter of the Accessibility for Ontarians with Disabilities Act (or will at a minimum necessitate a DRM accessibility standard).  The AODA was enacted in 2005 with the goal of "developing, implementing and enforcing accessibility standards in order to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises on or before January 1, 2025." The Act will set out policy, practices, and other requirements that remove barriers with respect to goods and services.  It defines barriers as:

    "anything that prevents a person with a disability from fully participating in all aspects of society because of his or her disability, including a physical barrier, an architectural barrier, an information or communications barrier, an attitudinal barrier, a technological barrier, a policy or a practice"

    That definition would likely capture DRM and it definitely captures the combination of DRM and Bill C-61's anti-circumvention provisions.

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