The emergence of open source software as a powerful alternative to proprietary software models has been an important business and societal development. Open source software is today widely used by consumers (e.g., Firefox browser) and businesses (e.g., Linux operating system, Apache web server). From a policy perspective, the Canadian government's professed goal is to create a level playing field so that the marketplace rather than laws will determine marketplace winners. It has opposed attempts to create policy preferences for open source (over the objection of some advocates and countries) instead favouring a more neutral approach.
Notwithstanding the claims of neutrality, Bill C-61 creates significant marketplace impediments for open source software. Achieving a level playing field requires interoperability so that differing computer systems can freely exchange data. The bill includes an interoperability provision at Section 41.12 which states that the anti-circumvention provisions do not apply to:
a person who owns a computer program or a copy of it, or has a licence to use the program or copy, and who circumvents a technological measure that protects that program or copy for the sole purpose of obtaining information that would allow the person to make the program and any other computer program interoperable.
The problem with this provision is that it does not extend far enough to maintain a level playing field.
The classic example involves the use of Linux as a consumer operating system (Ubuntu has become a popular version). Unfortunately, this operating system cannot officially play DVDs since most commercial DVDs contain a digital lock and the entity that controls the lock does not license the necessary locks to play DVDs on Linux. Programmers have developed alternatives, but all involve circumventing the digital lock, an act that becomes illegal under Bill C-61.
The interoperability provisions do not help address this issue, since DVDs may not be considered computer programs and many of the circumventing programs have functionality beyond playback of commercial DVDs. The net effect, as noted by the Canadian Software Innovation Alliance, is that Bill C-61 erects an enormous barrier to open source software adoption, thereby harming innovation and a competitive marketplace. The solution – as proposed by the Computer and Communications Industry Association in 2000 – is to create an exception the substantially broadens the interoperability exception.