61 Reforms to C-61, Day 17: TPMs – No Exception for Court Cases, Laws, and Government Documents

In order for the public to know their legal rights and obligations, access to the law is widely viewed as essential.  Yet there is real danger that these kinds of materials – court decisions, legal statutes, and other government documents – could end up locked down using digital rights management.  Other countries have recognized the danger of mixing digital locks, anti-circumvention legislation, and legal materials.  For example, Sweden's implementation of anti-circumvention legislation tries to ensure access court cases and government documents that are subject to TPMs.  Article 52f provides that:

Anyone who, pursuant to the provisions in Articles 16, 17, 26, 26 a or 26 e [26 a covers activities of a public authority and reports of legal proceedings] is entitled to exploit a work protected by copyright shall be entitled to make use of a copy of a work that he lawfully has access to as referred to in the relevant provision, notwithstanding the fact that the copy is protected by technological measure.  Where a technological measure prevents such a use, a Court may, at the request by a user entitled to that use, order, upon penalty of a fine, the author or his successor in title to make it possible for the user to exploit the work in a way prescribed in the provision referred to.

Canadians surely should enjoy full access to the law without the prospect of fears that they might violate the very law they are trying to access by circumventing a digital lock.  An exception in Bill C-61 for this form of content is certainly needed.


  1. Sceptical says:

    The real barrier to access is lawyers fees! Court judgements, and all statutes, are available freely on governemtn and court sites.

  2. Why are such materials the subject-matter of copyright to begin with?

    It’s interesting, and infuriating, to hear Prentice justifying his amendments based on international practice. International practice, in countries from every legal tradition, is that laws, court decisions, regulations, parliamentary proceedings, etc., are not “protected” by copyright to begin with.

  3. Dwight Williams says:

    This change will work
    If it’s included in the revised bill, that is.

  4. While the authour is still here
    “a Court may, at the request by a user entitled to that use, order, upon penalty of a fine, the author or his successor in title to make it possible…”

    Sweden has a great remedy, until a company goes bankrupt and there is no successor, at which point the content simply becomes illegal to use. Even if someone is still around, you still have to go to court and seek legal remedy, just to exercise your rights to use. That’s similar to guilty until proven innocent. It’s also a very high hurdle just to exercise your entitlment, given the cost, time and effort of legal proceedings. Chilling and burdensome.

    I am reminded once again by this detail, where the devil lays waiting for us in C-61. It is clear from history that digital locks are usually breakable. Bill C-61 is strangely trying to enshrine in law, what the technology its self cannot do.

    An analogy:

    -Copyright markings and notices, and various user agreements, are all the equivalent of “No Tresspassing” signs. They are in no way a barrier, only a notice.

    -Digital locks are like fences, gates, or walls. They are a direct barrier, of strength to be determined in practice.

    On a real property, you can post “No Tresspassing” signs to guard yor privacy, and thereby earn legal recognition of your formal denial of free unauthorized access. If you are a bank, you will build a strong safe to guard your valuables. You might be in between these extremes, and simply erect a strong enough fence, perhaps posted with signs. Or you can keep things in a building, and gain the protection of laws against breaking and entering.

    With digital locks, we have the functional equivalent of anything from fences to safes. Bill C-61 attempts to enshrine all of these barriers with a legal invulnerability on par with bank vaults, even though they seldom possess true physical (logical) invulnerability. It does not matter if what is inside is yours; even if you do not commit theft, you commit break and enter if you dare bypass the locks to access your information. With banks, the real damage to the bank, and the breach of security, justifies the law. But under C-61, merely bypassing the region code on a DVD becomes the equivalent to the high crime of breaking into a bank vault, even though you have legally purchased the content.

    On another aspect, we can see clearly that explosives and lock picks for safe cracking should be regulated. But the software tools for bypassing the DRM on a CD, are more akin to the hiking boots you might wear as you hop the 1m fence and walk into the woods; they are not tools of high crime and danger. And yet there is no distinction made. Even when someone has wrongfully fenced in a public park, both your boots and your wearing of them would become highly criminal should you hop that fence. In the real world we are protected. There are laws against fencing in other’s or public property, against leaving things locked up in a safe when someone else has rightful access, and against closing a business without freeing other’s properties held therein. But I see no restrictions whatsoever on where digital locks can be applied, and no legal recourse should the copyright holders cease to exist or refuse to cooperate.

    Whether we can actually all become safe crackers or not, we shouldn’t need to. This is a glaring ommission for any future copyright law that addresses digital locks. C-61 leaves us with unrestricted use of the legal equivalent of bank safes, to hold any digital goods whatsoever, with absolute permanency, no matter who they now belong to, and regardless of whether the key holder still even exists. I can see no justification for this. Bill C-61 fails to embody any proportionality, protect any of the purchaser’s ownership rights, and offers no disincentives or barriers to the wrongfull abuse of digital locks.

    “An exception in Bill C-61 for this form of content is certainly needed.”

    An exception from bill C-61 is needed. 61 reforms are not enough.

  5. Sweden has a great remedy, until a company goes bankrupt and there is no successor

    A number of Latin American countries have a very nice provision which say that, at least in the case of personal succession (not so sure about business succession), if copyright in a work by an author, who dies without heirs, is not devolved to someone else by his or her will, then it becomes public domain, thereby avoiding the dead-letter copyright altogether.

  6. Maynard G. Krebs says:

    Perhaps this sort of provision will eventually come about, but probably not until a bunch of lawyers are charged with offenses under C-61.

    Only then will organizations like the Law Societies in each province wake up.