|
Monday July 16, 2012 |
Last week, I posted
on the significance of the Supreme Court of Canada's five copyright
decisions with an emphasis on the shift from fair dealing to fair
use. This week, I have several additional posts planned including
one on the implications for Access Copyright as well as a broader
examination of how the court has elevated users' rights within
Canadian copyright law. This post focuses on the second major
development in the cases: the articulation of technological
neutrality as a foundational principle of Canadian copyright. The
technological neutrality principle could have an enormous long-term
impact on Canadian copyright, posing a threat to some copyright
collective tariff proposals and to the newly enacted digital lock
rules.
The technological neutrality principle is discussed in several
cases, but gets its most important airing in the Entertainment
Software Association of Canada v. SOCAN decision. The majority
of the court states:
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday July 16, 2012 |
|
View
|
|
|
Monday June 25, 2012 |
The House of Commons may have passed Bill C-11, but the constitutional
concerns with the copyright bill and its digital lock rules will likely
linger for years. Many experts believe that the government's
decision to adopt one of the most restrictive digital lock approaches
in the world - it creates potential liability without actual copyright
infringement -
renders the provision vulnerable
to constitutional challenge.
The Department of Justice's take on the constitutional concerns has
long been the subject of speculation, yet the legal opinion is
protected by solicitor-client privilege. However, late last week I
received records from an Industry Canada access to information request
that includes the internal departmental analysis of digital lock rules
that was prepared in advance of Bill C-32. The document
includes a summary of the Department of Justice legal opinion,
information on other Justice legal opinions, and details of concerns
raised internally by the Competition Bureau (the Competition Bureau
concerns will be discussed in a separate post tomorrow). The net result
is that the document confirms that there were concerns within Industry
Canada and from the Department of Justice about the constitutionality
of the digital lock approach. According to Industry Canada's analysis:
TPMs may raise some concerns under
the Canadian Charter of Rights and Freedoms, especially with respect to
the freedom of expression entailing the right to access information.
For instance, provisions prohibiting the circumvention of DVD regional
coding may violate the Charter where the user seeks to access
information that is consistent with the rights (s)he may have purchased
and where no copyright infringement occurs (N.B. Notwithstanding the
potential constitutional invalidity of anti-circumvention provisions
re. regional coding, the circumvention may nonetheless be unauthorized
and therefore unlawful under applicable contractual terms).
The key source document is a legal opinion dated March 2, 2007, from
the Department of Justice on the "assessment of potential Charter risks
of prohibiting the act of circumvention of access-control TPMs and the
provision of services or sale of devices to circumvent any kind of
TPM." The opinion, which was likely updated for Bill C-11, is described
in the Industry
Canada summary as follows:
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareMonday June 25, 2012 |
|
View
|
|
|
Tuesday June 12, 2012 |
The Standing Committee on Industry, Science and Technology, which is
continuing its study
on intellectual property, received some important evidence last
week from an Ottawa firm focused on IP enforcement issues. Harry Page,
the CEO of UBM TechInsights,
told the committee that Bill C-11 will actually impede the ability to
enforce intellectual property rights. Page's concern is the same as
that expressed by businesses, consumer groups, education: overbroad
digital lock rules. According to Page:
we have a concern that aspects of the
Copyright Act may actually have an unintended consequence with respect
to our local technology community and our ability help people in the
protection of their intellectual property. Specifically, our concern is
that the anti-circumvention provisions could create legal uncertainty
where that would actually discourage the use of forensics to detect
infringement of other forms of intellectual property. Even though the
fact is that the circumvention of those protection measures actually
have nothing to do with the copyright material under protection.
While the committee legislation is
now passed and will soon be enacted we will continue our pledge to
continue to work with the government and the appropriate bodies to
ensure that the regulatory language bringing the act into force are
clear and precise so they do not hinder the full and forceful
protection of Canadian intellectual property and the protection of
intellectual property creators and owners in the international
marketplace.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday June 12, 2012 |
|
View
|
|
|
Friday May 25, 2012 |
India's two Houses of Parliament passed copyright
reform legislation
this month that includes digital lock provisions. The Indian approach
is very similar to what dozens of groups recommended for Canada as it
links circumvention to copyright infringement. The new Indian digital
lock rules state:
65A. (1) Any person who
circumvents
an effective technological measure applied for the purpose of
protecting any of the rights conferred by this Act, with the intention
of infringing such rights, shall be punishable with imprisonment which
may extend to two years and shall also be liable to fine.
(2) Nothing in sub-section (1) shall
prevent any person from,—
(a) doing anything referred to
therein for a purpose not expressly prohibited by this Act:
Pranesh Prakash offers detailed
analysis of the bill and the digital
lock provisions.
Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareFriday May 25, 2012 |
|
|
