61 Reforms to C-61, Day 24: TPMs – No Exclusion of Non-Infringing Access

Bill C-61's anti-circumvention approach ranks among the broadest of any statute in the world.  One area where it is particularly (over)broad is in its failure to exclude non-infringing access.  Under the current bill, Section 41.1(1) simply states that "no person shall circumvent a technological measure within the meaning of paragraph (a) of the definition of 'technological measure'".  Technological measure "means any effective technology, device or component that, in the ordinary course of its operation controls access to a work. . . "

By using such a broad approach – any circumvention of any effective access control – the statute prohibits the circumvention of TPMs that have absolutely nothing to do with infringing copying.  The most obvious example of this comes from the region coding found on DVDs and many computer games.  Many DVDs include Macrovision (designed to stop copying a DVD to VHS), Content Scramble System or CSS (the subject of important litigation involving DeCSS, a software program created to allow Linux users to play DVDs since they were otherwise unable to do so due to CSS), and region coding. 
The premise behind region coding is fairly straight-forward. With DVD region coding, the world is divided into eight regions (Canada and the U.S. form Region One).  Consumer electronics manufacturers have agreed to respect region coding within their products by ensuring that DVD players only play DVDs from a single region.  The net effect is that Canadian-purchased DVDs will play on Canadian-bought DVD players, but DVDs purchased in Europe, Australia, or Asia (all different regions), are unlikely to work on those same DVD players (with the exception of those DVDs that are region coded zero, which can be played worldwide). 

Note that the use of region coding has nothing to do with traditional notions of copyright law.  The underlying work may involve a copyrighted work – DVDs and video games regularly use region coding – yet the protection is designed to manipute markets by restricting the ability to use fully authorized copies of works.  Many countries have recognized this by specifically excluding non-infringing access controls from their anti-circumvention legislation.  For example, New Zealand's new copyright law includes a much different definition of technological measure, stating that:

for the avoidance of doubt, does not include a process, treatment, mechanism, device, or system to the extent that, in the normal course of operation, it only controls any access to a work for non-infringing purposes (for example, it does not include a process, treatment, mechanism, device, or system to the extent that it controls geographic market segmentation by preventing the playback in New Zealand of a non-infringing copy of a work)

Section 53a of Norway's anti-circumvention law states that the provisions shall not "hinder private users in gaining access to legally acquired works on that which is generally understood as relevant playback equipment," while Finland's law expressly permits circumvention for non-infringing uses of lawfully acquired copies.  The failure to include such a provision under Bill C-61 is a striking failure that must be remedied.


  1. Cash Cows
    As many people have noted. You purchase the media, but you’re restricted on how it is used. Therefore, DRM and DMCA laws force the user to purchase a license instead of a product. In that you pay x amount of dollars for the right to use the media. In some cases, there are some very expensive licenses.

    The fact that we already pay a levy in order to backup and/or re-arrange the media should be enough. The problem with C-61 and others like it is there’s no return on investment for the consumer, which would lead to lower sales of a DVD or CD.

  2. R. Bassett Jr. says:

    Very Important
    This issue that you have mentioned stands as one of the most important of the entire list of issues with the bill.

    It seems we are working vey hard to create laws that will enable us to live in a “corporate police state”.

    I don’t know about you, but I am damned certain that is not why my family fought in WWI and WWII to defend the freedoms of this nation of ours.

    Protecting copyrighted material from infingment is not the same thing as artificially controlling the world markets – on any commodity.

  3. Owners are criminals
    I just don\’t understand why the Government of Canada wants to make it a crime for Canadians to play their legally purchased DVDs on computers running the Linux operating system?

    As I understand it, if I simply *play* my DVDs on my computer (running Ubuntu Linux) – NOT copy them – I\’m guilty of copyright infringement and liable to a $20,000 fine for each DVD I playback!!

    I have to ask the Honourable Jim Prentice – and Hollywood for that matter – why it matters so much which operating systems people use to playback their DVDs? In my opinion copyright holders should be the last group to complain about consumers going out and buying their products.

  4. Nathan S. says:

    It’s all about money
    That’s basically what this bill is all about, insuring that these copyright conglomerates get as much money out of the populace as possible. The funny thing is if this law does get passed, I can definitely see LESS people going out and buy media based products, simply because they don’t like the idea of being told what they can and can’t do with it, which will most likely lead to a good number of businesses that survive on media having to close up shop and move out. And due to Jim P’s infinite wisdom, he’ll still blame the loss on piracy.

  5. Anonymous says:

    Re:Owners are criminals
    Most of the time, the big label compagny thinks that they sell a liscence to use a media… not a copy of the media… that’s why the “Honorable” Prentice wants to introduce this law(well that and the fact that he’s paided by *AA to do so)…

  6. John Jarvis says:

    Playing DVDs on Linux
    B. Winter: yes, that’s my understanding as well. I tried explain that to my MP (Poilievre) a few days ago, but his eyes just glazed over.