Challenging the New Digital Lock Talking Point: Why European Rules Are More Flexible Than C-11

The debate over C-11 resumed this week in the House of Commons with Paul Calandra, the Parliamentary Secretary to the Minister of Canadian Heritage, invoking a claim that raises the question of how the Canadian digital lock rules compare to those found in Europe. In response to the ongoing concerns with Bill C-11’s digital lock rules – they are easily the most discussed issue during the debates – Calandra stated:

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 “the 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 – 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.


  1. Dwight Williams says:

    Consider this question reposted. It must needs be asked by all of us.

  2. James Gannon says:

    Mr. Calandra’s question on reduced access to materials was directed at Ms. Perrault who said:

    “Their bill has reduced fair access to electronic resources”

    About a minute later, she suggests that the Bill will reduce availability of materials for the visually impaired (which is also, incidentally, inaccurate).

    Finally, you have only mentioned half of the EU countries, and for some you simply list regulation-making powers the like Bill C-11 actually has greater than the laws you cite. In addition, you do not list the ways that the EU laws are stricter, so how can this be at all a balanced piece when you have literally only shown one side of the argument?

  3. George Geczy says:

    Mr. Calandra’s comment “reduce the availability of content” is actually somewhat imprecise, and as such is subject to some interpretation. If you take the earlier question referenced in the comment above, that the bill “has reduced fair access to electronic resources”, and the comment about the visually impaired, then you can make some additional inferences. In particular, use of the word “fair” in the question. For example, being prevented from breaking TPM to watch a DVD encoded in another region would reduce our access to that resource, in particular if the resource was not available in any form for the local market (quite a common situation). Format shifting, which also often requires circumvention of TPMs, also applies here. If a product is released for viewing only on Android but Canadian consumers want to watch it on their Blackberry Playbooks, it may require circumvention; prevention of that format shift will reduce our access to that resource (as compared with jurisdictions that allow legal format shifting in spite of DRM).

    Access for the visual impaired is also a significant issue, since C-11 would make almost all current screen reader and accessibility products illegal under its circumvention tools section; so even if there is some consideration for the visually impaired in C-11, without flexible tools those rights cannot be exercised. Again, this would mean reduced access to those resources for visually impaired Canadians.

    While it is true that some EU jurisdictions do have more restrictive conditions than C-11, the trend for all new legislation in Europe and elsewhere is to return balance and allow consumers the right to use their legally purchased materials.

  4. More restrictive? Yes. Effective? No.
    @Gerorge “While it is true that some EU jurisdictions do have more restrictive conditions than C-11, the trend for all new legislation in Europe and elsewhere is to return balance…”


    This is particularly true in Great Britain where it is becoming evident that the recent Digital Millennium act was a rushed botch job.

    And as for the the even more restrictive countries such as France are learning that the ‘cure’ may be worse that the disease … “Hadopi is an ongoing political nightmare for the government and for the majority of Nicolas Sarkozy,” Zimmermann added. “The parliamentary debates lasted for two years instead of going quickly. The law was rejected once, then it was put again before the government. So it remains a symbol of a badly voted, very bad law.”,,15490015,00.html

  5. After using the facilities, legislators should wash thoroughly..
    Oh, and should I mention that even the world’s greatest pusher of restrictive legislation is seeing it’s SOPA bill washed down the drain?

  6. ConcernedCanadian says:

    I’m much more concerned about viability than availability of online content. The recent Napster case should provide fuel for that fire.

    In comparison to the physical world, it does happens that a given equipment manufacturer goes out of business or simply stops manufacturing parts for an equipment. At the very least, it is possible to open the equipment up to repair it or dismantle another one to take its parts etc. Of course, this is all relative to the projected life of the equipment. If you knew than Honda would stop making parts for your 2008 civic in 2012; you would probably not buy one. Windows Vista will stop being supported in 2017, 10 years is an acceptable lifespan for an OS.

    Media files, in theory should have an ‘eternal’ lifespan. The vinyl and CD medias can last a few hundred years in theory so why can’t the media ‘files’? Why should a media file, duly paid for, last only 2-3 years because of digital locks? Once they have everybody as a potential criminal; Will it become a new troll business model funded by the bif media: “Lock, Run and then sue”?

  7. Fighting back
    The remarks above that suggest the governments are trying to return to somewhat of a balance for usage rights (this is a separate issue from copyright term) is not because they have been reflecting on their (mis)deeds.

    It is purely because the public has started to fight back, are becoming more vocal and greater in numbers. The talks by the WIPO Director General Francis Gurry (who explicitly referenced the emergence of Pirate Parties) and European Commissioner for Digital Agenda Neelie Kroes (Punish and Withhold) witness this.

    If you’re proficient enough to integrate a home theatre PC in your entertainment setup, you’ll probably have the know-how to properly rip your DVD collection; in the process circumventing CSS and other specific TPM implementations on top of that. You’ll also likely take the advice given by MP Lee Richardson (C): just do it, you won’t likely get caught.

    I want to stand up for people who are not really technically savvy, but would like a home theatre PC too. Or, and these will be starting next year, buy an Ultrabook notebook and discover that the optical drive is no longer included. So, what to watch on long trips?

    Canada should just do what is right: if you’re not infringing, there shouldn’t be anything stopping you from not infringing.

    Infringing -> copyright law, ideally decided by those who we elected into office taking into account all stakeholders, including “the public”

    Stopping you -> TPMs, use of which is decided in corporate boardrooms.

  8. Conservatives need to stop following the US model
    I have no idea why the Conservatives keep trying to follow with what the US Government has done, especially considering the state of things in the US right now. Following the US is just idiocy, it’s a horrible idea that will simply break down Canada and Canadian culture. Europe is far more progressive and taking a much better path with many things than the US, who is on a destructive path. Smarten up Conservatives, stop being a lemming and following the town idiot over the cliff.

  9. Ah, German rock music! Here I agree with locks! No one should be able to play it!

  10. EU turfs ISP cencorship
    Filtering P2P in the EU violates human rights and an EU electronic commerce directive.

    Lots of positives coming out of Europe. Perhaps an economic circumstance with little to lose is necessitating broader political contemplation?

  11. Once again Euro law is ahead of the conservatives …
    In its ruling, The Court of Justice upheld the right of copyright holders to file injunctions against intermediaries over illegal file sharing. But it struck down the provisions of the Belgian court ruling that required filtering, finding that the filtering provisions violated European Union e-commerce laws, and infringed on the rights of Scarlet and its customers. The broad monitoring required to filter file-sharing would “infringe the fundamental rights of [Scarlet’s] customers, namely their right to protection of their personal data and their right to receive or impart information, which are rights safeguarded by the Charter of Fundamental Rights of the EU,” the court panel wrote.

  12. Jean-Francois Mezei says:

    DRM and digital locks actually foster pirated material since it DRM-free copy from pirated sources is easier to use at home on your own devices than a DRMed copy that you buy.

  13. Jean-Francois Mezei says:

    This may sound silly but…

    If I use a digital lock for my locker in the gym locker room and someone breaks into it, does this mean that he will be charged under the copyright act ?

    Similarly, if sommeone breaks into a car with a digital lock, is that a copyright infringement ?

    Shouldn’t the term “digital locks” be replaced with Digital Rights Management in the law ?

  14. Laurel L. Russwurm says:

    “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.”

    I disagree.

    If DRM/TPM/Digital locks reign supreme, I would be very surprised if the digital locks are not increasingly applied to Canadian media, devices and even ISPs, and ultimately limiting independent distribution to what is “approved”