30 Days of DRM – Day 08: Privacy (Circumvention Rights)

Today's post kicks off the heart of the 30 Days of DRM series – circumvention rights.  Circumvention rights are necessary since everyone agrees that an absolute anti-circumvention provision (ie. circumvention prohibited in all circumstances) is unworkable.  There are instances where such a prohibition would result in significant costs by precluding beneficial activities, creating "unintended consequences", and lead to significant harm to the public.  Indeed, the DMCA itself includes several narrow exceptions to the general anti-circumvention rule.

The approach in Bill C-60 was to limit (the government believed eliminate) the need for circumvention rights by creating a direct link between circumvention and copyright.  Bill C-60 only made it an offence to circumvent a technological measure for the purposes of copyright infringement.  In other words, if you had another purpose – for example, protecting your personal privacy – the anti-circumvention provision would not be triggered. 

If the new copyright bill adopts a U.S. style approach, then a crucial part of the discussion will be whether the government has identified all the necessary rights to limit the harms associated with anti-circumvention legislation.  While these rights might be characterized by some as exceptions, I think they are more appropriately viewed as circumvention rights, analogous to the Supreme Court of Canada's emphasis on user rights.

Privacy protection is an obvious example of a circumvention right.

Copyright is important, but many would say that privacy protection should trump copyright considerations.  There is clearly a need for a privacy circumvention right since failure to include it could result in companies collecting and user personal information with the public locked-out of the ability to stop such activity.  PIPEDA, the federal privacy law, requires organizations to obtain consent for the use, collection, and disclosure of personal information, however given the law's weak remedies and the ease with which the public can end up contracting out of privacy rights, stronger protection is needed.

This issue has certainly captured the attention of the Canadian privacy community.  Earlier this year, a group of privacy and civil liberties organizations and experts sent a public letter to the responsible ministers calling for assurances that:

  1. any proposed copyright reforms will prioritize privacy protection by including a full privacy consultation and a full privacy impact assessment with the introduction of any copyright reform bill;
  2. any proposed anti-circumvention provisions will create no negative privacy impact; and
  3. any proposed copyright reforms will include pro-active privacy protections that, for example, enshrine the rights of Canadians to access and enjoy copyright works anonymously and in private.

That letter was supported by four of Canada's best known privacy commissioners who each wrote their own letters on the DRM privacy issue.  They include Jennifer Stoddart, the Privacy Commissioner of Canada, Ontario Privacy Commissioner Ann Cavoukian, British Columbia Privacy Commissioner David Loukidelis, and Alberta Privacy Commissioner Frank Work.  Intellectual Privacy also a background paper on this issue and Ian Kerr's excellent piece on privacy circumvention is highly recommended.

One Comment

  1. Bill C-60
    “The approach in Bill C-60 was to limit (the government believed eliminate) the need for circumvention rights by creating a direct link between circumvention and copyright.”

    Most bureaucrats tought it was a good thing. (Of course the lobbyist want more than that… from there you can try to guess what they REALLY want…)

    The problem is: if the said rational to engage in anti-circumvention law is to fight piracy, and then we link the anti-circumvention provision directly to the act of copyright infringement, what good does this new law makes?

    If somebody already makes willful copyright infringement, will he really care if he break an anti-circumvention law in addition to that?

    Of course not. So the net effect will be on the mainstream consumer, the one who legally purchases software/movies, who doesn’t know much about circumventing TPM (although an hour spent on google and you will find how) and will not be able to make “fair use” of his purchased work, like ripping a movie on his hard-drive.