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Tuesday August 03, 2010 |
The NY
Times and LA
Times have both published masthead editorials approving the new
digital lock exemptions announced last week in the U.S.
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Tuesday August 03, 2010 |
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Peter Jaszi provides a great
review of how the U.S. DMCA exemption process has evolved for the
better.
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Monday August 02, 2010 |
Appeared
in the Toronto Star on August 2, 2010 as U.S. Move to Pick Digital
Locks Leaves Canadians Locked Out
Since its introduction two months ago, the government's copyright
reform package has generated widespread debate over whether it strikes
the right balance. The digital lock provisions have been the most
contentious aspect of the bill, with critics fearing that anytime a
digital lock is used, it would trump virtually all other rights.
Supporters of the C-32 digital lock approach have sought to counter the
criticism by arguing that the Canadian provisions simply mirror those
found in other countries such as the United States. Yet last
week, the U.S. introduced changes to its digital lock rules that leave
Canada with one of the most restrictive approaches in the world.
The U.S. rules are found in the Digital Millennium Copyright Act
(DMCA), which features a triennial review process that allows the U.S.
Copyright Office and Librarian of Congress to mitigate the danger the
law poses to legitimate, non-infringing uses of copyrighted materials
by identifying new exceptions.
The latest review concluded last week with the introduction of new
exceptions that target popular consumer products such as DVDs,
smartphones, and e-books. The exceptions - which make it legal to
circumvent the locks - are narrow in scope, but they provide U.S.
consumers with far more rights than those found in Bill C-32.
The media focused primarily on the smartphone exception, which is
tailor-made to address the locks found on the popular Apple
iPhone. Three years ago, the U.S. established a specific
exception to allow consumers to legally unlock their cellphones so they
could keep their phones when switching providers. Last week, it
extended the exception even further, granting consumers the right to
"jailbreak" their phones. That move allows consumers to install
applications of their choice without requiring Apple's prior approval.
The Canadian rules on cellphones and digital locks pale by
comparison. While the inclusion of an exception for unlocking a
phone was promoted as an illustration of a pro-consumer element of
C-32, there is no equivalent to the U.S. rule for jailbreaking phones
in Canada.
More noteworthy were a trio of exceptions involving circumventing the
locks on DVDs. The first establishes an exception to circumvent DVD
protection to gather a short clip for educational purposes. The
Canadian government has promoted the benefits of C-32 to the education
community (the bill includes a broad new fair dealing exception for
education), yet teachers or students engaging in the same conduct would
violate the law in Canada under C-32.
The second permits documentary film makers to circumvent DVD
protections to gather a short clip. There is no similar exception
found in the Canadian bill, which has led the Documentary Organization
of Canada to conclude that C-32 puts "documentarists in an untenable
situation" since they will not be able to use as source material any
content behind a digital lock.
The third grants a specific exception to anyone circumventing DVD
protection to collect clips for non-commercial videos. The
Canadian government has touted its "YouTube" user-generated content
remix exception as an example of forward-looking elements in the bill
that grants Canadians the right to create remixed work for
non-commercial purposes under certain circumstances. However, unlike in
the U.S., those new rights are lost once the desired content is placed
under a digital lock.
Finally, the U.S. rules also contain an exception for e-books designed
to facilitate access for the sight impaired. The Canadian rules
do not contain a similar exception.
Given the restrictions on distributing circumvention tools, contractual
restrictions, and the absence of a general right to circumvent for
lawful purposes, the U.S. exceptions are hardly a panacea. Yet
when compared to Bill C-32, they will leave Canadian consumers
wondering why the government has proposed a bill with digital lock
rules far more restrictive than those found in the U.S.
Michael Geist holds the Canada
Research Chair in Internet and E-commerce Law at the University of
Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online
at www.michaelgeist.ca.
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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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