We know that in Europe there is much greater support for TPMs and that has not actually reduced the availability of content online. Does she have any rationale for thinking Canada’s less stringent use of TPMs through the bill would somehow reduce the availability of content for Canadian consumers?
Calandra’s comments raise two issues: (1) whether the Europe has stricter support for digital locks; and (2) whether digital locks reduces the availability of online content.
The first issue is an important one since claims that Europe has stricter digital lock rules than those proposed in Bill C-11 are plainly inaccurate. Indeed, many Canadians would be far happier with the Bill C-11 digital lock rules if we matched some of the approaches found in Europe. European implementations include:
- Switzerland links circumvention to actual copyright infringement. Article 39a(4) includes a full exception for circumvention of TPMs for legal purposes, providing â€œthe prohibition of circumvention can not be applied to People who are primarily circumventing for the purpose of a legal use”
- 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”
- Finland‘s law expressly permits circumvention for non-infringing uses of lawfully acquired copies.
- Lithuania‘s anti-circumvention provisions include a specific exception that preserve personal use rights by requiring content owners to enable legitimate uses.
- The Czech Republic‘s digital lock rules include a specific exception for digital archiving
- Sweden‘s implementation of anti-circumvention legislation tries to ensure access to court cases and government documents that are subject to TPMs.
- Denmark‘s digital lock rules allow users to circumvent if the rights holder does not comply with an order from the Copyright License Tribunal to unlock for authorized purposes. Moreover, Denmark’s implementation includes an explanatory text that indicates that only TPMs used to prevent copying are protected. Accordingly, if a TPM seeks to expand protection beyond mere copyright protection it does not enjoy legal protection. For example, encoding DVDs with regional coding would presumably not enjoy protection, an interpretation confirmed by the Danish Ministry of Culture which has opined that it would not be unlawful to circumvent DVD regional encoding for lawfully acquired DVDs, nor to circumvent a TPM if the sole purpose is to use a lawfully acquired work
- Italy‘s digital lock rules require rights holders to allow users to exercise various exceptions found in its copyright legislation. Moreover, it includes the right to make one copy for personal use notwithstanding a TPM, provided that the work is lawfully acquired and the single copy does not prejudice the interests of the rights holder.
- Slovenia‘s digital lock rules include an exception that allow circumvention for teaching purposes
- Germany‘s digital lock rules limit the coverage solely to works that are subject to copyright protection
- Greece provides a positive right of access with the condition that failure to obtain the right leads first to mediation, followed by a legal right of action
- Austria and the Netherlands have legislation that assumes access for non-infringing material â€“ Austria has said it is “monitoring” the situation, while the Netherlands has included the ability for the Justice Minister to issue decrees on the matter
The second issue regarding reduced availability of online content is a bit odd since no one is claiming that the C-11 digital lock rules will reduce the availability of online content. The primary concern is that the rules prioritize locks and skew the copyright balance by allowing a rights holder to trump the rights of consumers merely by inserting a lock. To my knowledge, no one has suggested the rules will reduce the availability of content and Calandra’s repeated reference to this (he raised it in an earlier session) does not respond to an actual concern or point of criticism.
In fact, the real concern – raised by dozens of Canadian organizations and all the opposition parties – is that the Canadian digital lock rules are more restrictive than those required by international law, more restrictive than those found in many other countries, and so restrictive that they undermine the government’s claims of striking a balance. Calandra’s references to other countries only serves to remind Canadians that the Bill C-11 digital lock rules are amongst the most restrictive in the world.