Beyond NZ & Switzerland: How Dozens of Countries Have More Flexible Digital Lock Rules Than C-11

The Bill C-11 committee began its sprint to the finish yesterday, hearing from the first series of witnesses with plans to hold four hearings per week until mid-March followed by two weeks of clause-by-clause review of the bill. The first panel included my colleague Jeremy deBeer, who pointed out that a review of hundreds of articles on legal protection for digital locks shows consensus that the restrictive approach found in Bill C-11 is unnecessary for WIPO compliance and likely to result in unintended consequences.

The committee heard from another witness, lawyer James Gannon, that the absence of digital lock legislation is hurting our economy (a reminder that the Canadian digital music market has grown faster than the U.S. for five consecutive years, that Netflix chose Canada as its first foreign market, and the music industry now calls Canada a greenfield opportunity might be in order) and that New Zealand and Switzerland – both OECD countries who link circumvention to actual copyright infringement in their digital lock rules – were the only developed ones that don’t follow the “international standard” with many of the remaining 80 or so countries having “compliant or more robust standards” for digital locks.

Yet a review of dozens of countries that have implemented the WIPO Internet treaties demonstrates that this is plainly wrong. In addition to key allies that do not have any anti-circumvention rules (e.g. Israel), have proposed more flexible rules (e.g. India), or have adopted more flexible rules but have yet to ratify the WIPO Internet treaties (e.g. New Zealand), it is worth noting:

  • Argentina is a member of the WIPO Internet Treaties but the treaties are “self-executing.” In other words, only the general language on effective legal remedies and adequate protection is used.
  • Austria has legislation that assumes access for non-infringing material. It says it is “monitoring” the situation.
  • Belarus is a member of the WIPO Internet Treaties but its law does not cover devices nor access controls.
  • Chile is a member of the WIPO Internet Treaties but has not implemented anti-circumvention provisions.
  • China is a member of the WIPO Internet Treaties but does not have full DMCA-style provisions within its copyright law.
  • The Czech Republic‘s digital lock rules include a specific exception for digital archiving
  • 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
  • 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
  • Finland‘s law expressly permits circumvention for non-infringing uses of lawfully acquired copies.
  • Indonesia is a member of the WIPO Internet Treaties but has not implemented anti-circumvention provisions.
  • 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.
  • Kazakhstan is a member of the WIPO Internet Treaties but does not have full DMCA-style provisions within its copyright law.
  • Lithuania‘s anti-circumvention provisions include a specific exception that preserve personal use rights by requiring content owners to enable legitimate uses.
  • Mexico is a member of the WIPO Internet Treaties but does not include criminal provisions for distribution or trafficking in devices
  • the Netherlands has legislation that assumes access for non-infringing material. It includes the ability for the Justice Minister to issue decrees on the matter.
  • 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”
  • the Philippines is a member of the WIPO Internet Treaties but has not implemented anti-circumvention provisions. Draft bills do not include explicit coverage of access controls nor cover devices.
  • Romania is a member of the WIPO Internet Treaties but its digital lock rules do not cover acts of circumvention
  • Slovenia‘s digital lock rules include an exception that allow circumvention for teaching purposes
  • Spain is a member of the WIPO Internet Treaties but its digital lock rules have been interpreted to allow devices primarily designed for purposes of circumvention when capable of some ancillary non-infringing use.
  • Sweden‘s implementation of anti-circumvention legislation tries to ensure access to court cases and government documents that are subject to TPMs.
  • 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
  • Tajikistan is a member of the WIPO Internet Treaties but does not have full DMCA-style provisions within its copyright law.
  • Turkey is a member of the WIPO Internet Treaties but its digital lock rules do not fully cover acess and copy controls nor trafficking in devices.
  • Ukraine is a member of the WIPO Internet Treaties but has limited anti-circumvention provisions that require proof of “intentional” circumvention.

These are just some examples. A deeper review into many other countries would show that the U.S. approach (used in Bill C-11) is nothing approaching a “worldwide standard”. In fact, it is worth noting that the U.S. rarely contests these implementations as being inconsistent with the WIPO Internet treaties. In the USTR 2011 Special 301 Report, implentations by countries such as New Zealand and Switzerland are not even cited as a concern. The report does mention countries like Canada, Israel, and India for not implementing the WIPO Internet treaties, but rarely challenges actual implementations. In other words, the U.S. may prefer its DMCA-style implementation, but it clearly recognizes that there is considerable flexibility within the WIPO Internet treaties. A fuller examination of the creation of the WIPO Internet treaties and how flexibility was designed from the outset can be found in my article on this issue (part of the book on C-11/C-32, From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda).


  1. TheLaughingMan says:

    Who Watches The Watchmen?
    Stephen Harper, Rob Nicholson, John Baird, Jim Flaherty, Diane Finley, Peter MacKay, Tom Lukiwski and Vic Toews, along with the rest of the Conservatives are liars, cheats and thieves! Bill-C10 threatens to throw many in jail longer and needlessly! Bill C-11 would strip Canadians of even more rights to what we already own and censor our flow of information! Bill-30 will strip us of our privacy! Now lets not forget the G20 fiasco, Vic Toews immortal speech about Canadians being pedophiles, the planned pension cuts, they place gag orders on those they appoint to various studies so that if the studies turn up data contradicting their ideals, they can suppress the data, or their election fraud, and now they can’t even get our budget out on time!
    The fascist Conservatives would turn our country into an Orwellian nightmare! How can they even call themselves a legitimate government?! How dare they act like they have our best interests in mind! Who do they think they are telling us what we need and how to live our lives?! They’re the middle management and we’re the ones who hired them! We should be telling them what we want and how we want it!
    Canada needs to rise up march on Ottawa and occupy the parliament! We need to take back our country, remove the Conservatives from power! Our government, as a whole needs to be dismantled and rebuilt (that goes for those other parties as well. I’m looking at you Liberals and NDP. Fat load of good they’ve ever done for the country)! All our political parties have ever really done to us has been to divide Canadians. This only serves to make us easy prey for predators in the night! I say no more! Canadians need to stand up as one, divided by zero! Those that would appose the will of the people need to be taught a lesson, followed by some good old fashion tarring and feathering, finish with banishing traitors from Canada! Finally Canadians need some laws that allow us to force referendums on the government and punish corrupt politicians who think they can screw with their people, their employers, you and me! Fellow Canadians I implore you raise up and shout out your discontent for the horrible state of our country and the world for that matter. Shout from every mountain top (email, letters, phone calls, blogs, forums, twitter, youtube, ect…), “WE WILL NOT STAND FOR CORRUPTION WITHIN OUR GOVERNMENT! WE WILL NOT GO QUIETLY INTO THE NIGHT AS OUR FREEDOMS ARE SLOWLY ERODED! WE’RE COMING FOR YOU HARPER REGIEM! EXPECT US!” Let the voice of the masses resinate as one, thundering and deafening our oppressors. Keep screaming and screaming, every day, all day, don’t stop screaming until this country is ours again!
    ‘Things have got to change. But first, you’ve gotta get mad!… You’ve got to say, “I’m as mad as hell, and I’m not going to take this anymore!” Then we’ll figure out what to do about the depression and the inflation and the oil crisis. But first get up out of your chairs, open the windows, stick your head out, and yell, and say it: “I’M AS MAD AS HELL, AND I’M NOT GOING TO TAKE THIS ANYMORE!”
    ‘People shouldn’t fear the government, the government should fear the people!’
    For more information, check out

  2. I actually watched Gannon’s presentation and question period. He is a moron, plain and simple. He’s too much lawyer and not enough tech. Or, perhaps he simply lacks a basic understanding of the situation. Or, maybe he’s counting on all the law suits that will follow from C-11 to make him rich. Overarching legal protection of TPMs will do nothing to prevent those who want to copy something. Such restrictions only serve to harm legitimate business and inconvenience regular consumers who wish to use the media they purchase.

    I loved the Spotify example he kept referring to. It’s a terrible example. It’s a streaming service…big deal!!! Circumventing those TPMs to copy their entire library would fail the 6-step test and be illegal today.

    It’s all the other TPMs and unintended consequences that are the problem. DVDs, BD, CD (You can bet your a$$ they’ll start using them again after C-11), hardware locks, media tied to a specific hardware (i.e. Kindle).

    I’ll highlight one example. It should NEVER be illegal for me to open up a gaming system and modify it. This is hardware which I OWN!!! Now in modifying it, I would expect that I void my warranty and violate the user agreement. At that point it’s then up to the company to decide the consequences. The only game system I own is a Wii, which has not been hacked, but Microsoft, for instance, will ban hacked 360’s from accessing X-box Live. Nintendo Wii will not allow you to update after it’s been modified. Updating effectively removes the mods as far as I understand. HOWEVER, the act of modifying the system should NEVER be illegal, nor should it be illegal for me to copy games I purchased to a hacked device. Such uses violate the EULA and void my warranty, but are NOT copyright infringement and have no place in copyright law.
    Copying games I don’t own…now that is copyright infringement!!!

  3. I think Gannon and Geist are two rivers that will never meet, as they have significantly different world views and philosophies. Both of course are welcome to those views and opinions, and free to represent whom they wish, but the main difference that I see is Gannon is paid to represent the interests of the media industry while Geist being paid by the public purse, stands up for the consumer.

    As I believe that there has been decades of significant overreach by the media industries, and their lobbied legislators, my support goes to Geist. I’m sure Mr. Gannon is a fine man and lawyer, but the interests he represents need to understand the public is done with the media industry’s continual push for more control and less rights for consumers.

    I cannot call the outcome on the digital lock provisions of C-11. I expect the conservatives wish to make no amendments, and I fear we will see none, but the political atmosphere at the moment, along with the current public awareness of digital issues, may have an impact.

    Here’s hoping.

  4. Call on NDP/Lib/BQ/G
    The 4 opposition parties (I refuse to go by “official opposition” crap, I’m democratic) should band together an announce that, as soon as the 4 get a majority of seats, they will enter a joint amendment that will tie digital lock circumvention to actual copyright infringement.

    This is just management of expectations, nothing else. Making sure that no one can claim they had the expectancy that these rules would stay in place.

  5. Sean Hodgins says:

    Wolf in Sheep’s Clothing
    Gannon’s performance at committee was true to his reputation as the Bay Street Eddie Haskell. Gee, golly Mr Ministers, I really do admire your copyright fixing bill, but think those no-good, jallopy driving, malt-shake drinking free culturists have gone too far with their digital locking talk and all. Please, if it’s not too much trouble, just change some of the language of the bill here, here, here and here, oh and here. You know sirs, for the public good an’ everything. Only then will my good ole lawfirm chums have no issues suing the pants off anyone we want. Je vais maintenant parler en français pour vous montrer tout ce que je suis un fervent académique et un avocat vrai Canadien. Vive Le Canada!

    p.s. Where’s Lumpy?

  6. Byte: it’s worth noting that *ALL* of the opposition parties in parliament are against C-11 as it is currently worded. The Conservatives, however, control 56% of the seats, so they can pretty much run roughshod over what anyone else thinks or wants at least until the next federal election. The problem is that this bill is probably going to be pushed through before then… and will certainly be difficult to get rid of once in place.

  7. Digial locks are impotent
    I’ve said it once, I’ll say it again, digital locks are an impotent technology.

    e.g. Blu-ray was said to be hard to break/unbreakable. Then the first Blu-ray came out (Serenity) and THE SAME DAY the unencrypted disk was on the torrents.

    Seriously, putting a digital lock on something is like putting a broken gyroscope on a rocking chair and saying the data proves that it’s a stable platform.

    I get that having a DL provision would put us in line with treaties. But, a more fundamental question is, does it even make sense? To me, protections on something that doesn’t fulfill its intended purpose doesn’t make sense. And on top of that, its attempting to protect something that is already illegal. Further nonsense.

    This provision should be killed, period.

  8. @Reid
    “Digial locks are impotent”

    No, they certainly are NOT. Like you, many make the mistake in assuming digital locks are intended to mitigate piracy. They are not. Digital locks are all about market control and especially targets emerging markets. They don’t just make technology research impotent, they completely castrate it since everything from explicit TPMs to encryption to a password protected file is considered to be a digital lock and, like the DMCA in the US, the act of breaking the lock is not tied to actual copyright infringement. As such, like the DMCA, it is left open to countless “unintended” consequences and abuses.

    Let me ask you something, why do the Gaming Software people want protection of digital locks? Locks won’t help stem piracy. They want digital locks so they can kill the second-hand game market. Another consumer right lost…the Right of First Sale.

  9. @IamME:

    You forget the history of digital locks. In other words, just because there are new use cases doesn’t mean the old ones don’t exist.

    Breaking the lock will destroy the lock, making whatever the lock tried to enforce moot. Hell, look at Origin with searching users hard-drives! What was it, a week later the exe for BF3 was altered to enable running it *without* Origin.

    Digital locks are useless with regards to /any/ use; they are impotent, period.

    I should also point out that in the US the DMCA *allows* research into digital locks. They’re just a couple hoops to jump through.