Yesterday’s U.S. DMCA Rulemaking decision, which established a series of new anti-circumvention exceptions, attracted considerable attention on both sides of the border.  In the U.S., critics of the DMCA noted the progress in addressing some of the DMCA’s most troubling consequences by creating exceptions for unlocking and jailbreaking cellphones and circumventing DVD locks in several circumstances (though the decision is hardly a panacea given the restrictions on distributing circumvention tools, contractual restrictions, and the absence of a general right to circumvent for lawful purposes).

From a Canadian perspective, the U.S. decision – combined with the recent 5th Circuit Court of Appeals ruling linking circumvention to copyright and the USTR decision to cave on the digital lock rules in ACTA – provides a timely reminder of the mistake that is the digital lock rules in C-32. 

Looking back, Industry Minister Tony Clement said he wanted forward-looking legislation designed to last ten years, yet the scope of Bill C-32’s anti-circumvention exceptions became outdated in less than ten weeks.  Canadian Heritage Minister James Moore, when not calling critics “radical extremists,” emphasized that Bill C-32 was not identical to the DMCA.  While he had the notice-and-notice system in mind, weeks later his comments became accurate since it turns out the DMCA is far less restrictive than C-32.

Just how badly does the Canadian bill stack up?  On the two key issues in the bill – digital locks and fair dealing – Canada is far more restrictive than the U.S.  Consider:

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