My five-part series on the problems associated with the digital lock provisions in Bill C-32 identified many potential changes to strike a more balanced compromise (Parts One, Two, Three, Four, Five or single PDF). Several people have asked for specific legislative language for what I have in mind. Together with my research assistant Keith Rose, we've drafted language that builds on the recommendations contained in the series on 32 Questions and Answers on C-32's Digital Lock Provisions. The legislative language is available as a PDF download.
The primary solution that many have discussed involves permitting circumvention for lawful purposes. As I've discussed, this approach is compliant with the WIPO Internet Treaties, provides legal protection for digital locks, and maintains the copyright balance. There are at least two possible approaches. The first would involve amending the definition for circumvent to account for only infringing purposes:
Replace the definition of “circumvent” in section 41 as follows:
(a) in respect of a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure”, to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, for any infringing purpose, unless it is done with the authority of the copyright owner; and
(b) in respect of a technological protection measure within the meaning of paragraph (b) of the definition “technological protection measure”, to avoid, bypass, remove, deactivate or impair the technological protection measure for any infringing purpose.
Alternatively, add an explicit exception for circumvention for lawful purposes:
Add subsection 41.1(5) and (6) as follows.
(5) Paragraph (1)(a) does not apply if a technological protection measure is circumvented for any lawful purpose.
(6) Paragraphs (1)(b) and (c) do not apply to a person who supplies a service to a person referred to in paragraph (5) or who manufactures, imports or provides a technology, device or component, for the purposes of enabling anyone to circumvent a technological protection measure in accordance with this Act.
The document provides additional legislative language for a wide range of potential reforms to the digital lock provisions. This includes:
- which provisions to drop in order to remove the ban on the distribution and marketing of devices that can be used to circumvent
- adding a provision to allow “qualified circumventers” to facilitate legal circumventions
- removing explicit anti-circumvention provisions in new exceptions
- dropping the destruction and lock requirements for "lessons" and inter-library loans
- adding an impartial review process for establishing new circumvention rights
- addressing the problems with the proposed circumvention exceptions
- adding a positive obligation to facilitate circumvention for legal purposes
- adding several circumvention exceptions
- establishing a TPM labelling requirement