Canadian anti-circumvention laws (also known as digital lock rules) are among the strictest in the world, creating unnecessary barriers to innovation and consumer rights. The rules are required under the World Intellectual Property Organization’s Internet Treaties, but those treaties leave considerable flexibility in how they should be implemented. This is reflected in the countless examples around the world of countries adopting flexible anti-circumvention rules that seek to maintain the copyright balance. Canada was pressured into following the restrictive U.S. approach in 2012, establishing a framework is not only more restrictive than required under the WIPO treaties, but even more restrictive than the U.S. system.
One of the biggest differences between Canada and the U.S. is that the U.S. conducts a review every three years to determine whether new exceptions to a general prohibition on circumventing a digital locks are needed. This has led to the adoption of several exceptions to TPMs for innovative activities such as automotive security research, repairs and maintenance, archiving and preserving video games, and for remixing from DVDs and Blu-Ray sources. Canada has no such system as the government instead provided assurances that it could address new exceptions through a regulation-making power. In the decade since the law has been in effect, successive Canadian governments have never done so. This is particularly problematic where the rules restrict basic property rights by limiting the ability to repair products or ensure full interoperability between systems.
The best policy would be to clarify that the anti-circumvention rules do not apply to non-infringing uses. This would enable the anti-circumvention rules to work alongside the user rights in the Copyright Act (also known as limitations and exceptions) without restricting their lawful exercise. This approach was endorsed by the 2019 Canadian copyright review, which unanimously concluded:
it agrees that the circumvention of TPMs should be allowed for non-infringing purposes, especially given the fact that the Nintendo case provided such a broad interpretation of TPMs. In other words, while anti-circumvention rules should support the use of TPMs to enable the remuneration of rights-holders and prevent copyright infringement, they should generally not prevent someone from committing an act otherwise authorized under the Act.
The government has not acted on this recommendation, but two private members bills are working their way through the House of Commons that provide some hope of change. First, Bill C-244 on the right of repair. Introduced by Liberal MP Wilson Miao in February, the bill this week passed second reading unanimously and has been referred to the Industry committee for further study. The lack of a right of repair exception in Canadian digital lock rules has hindered both consumers and Canadian innovation significantly, leaving consumers unable to repair their electronic devices and farmers often locked out of their farm equipment. After farmers protested against similar copyright restrictions, the U.S. established specific exceptions permitting digital locks to be circumvented to allow repair of software-enabled devices.
Given the impact on consumers, the agricultural sector, and the environment, a provision that explicitly permits circumvention for purposes of the right of repair in Canada is long overdue. Indeed, such an approach is consistent with the 2019 copyright review recommendation:
That the Government of Canada examine measures to modernize copyright policy with digital technologies affecting Canadians and Canadian institutions, including the relevance of technological protection measures within copyright law, notably to facilitate the maintenance, repair or adaptation of a lawfully-acquired device for non-infringing purposes.
Miao described the bill this way:
The bill is aimed at addressing copyright that is being used to stop Canadians from repairing and maintaining items that have been purchased and are owned by Canadians. It is a targeted bill that creates specific exemptions to copyright. When an individual makes a purchase of an item, the owner should have a right to repair it and not be restricted by the manufacturer. Being able to repair the items we own is critical to the well-being of our environment.
The provisions create a long overdue exception that would allow circumvention for diagnosing, maintaining, or repairing a product in which a computer program is embedded:
41.121 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological protection measure that controls access to a computer program if the person does so for the sole purpose of diagnosing, maintaining or repairing a product in which the computer program is embedded.
(2) Paragraph 41.1(1)(c) does not apply to a person who manufactures, imports or provides a technology, device or component for the purposes of circumventing a technological protection measure that controls access to a computer program if the person does so for the purpose of diagnosing, maintaining or repairing a product in which the program is embedded and
(a) uses that technology, device or component only for that purpose; or
(b) provides that technology, device or component to another person solely for that purpose.
Given the all-party support and the inclusion of right to repair in the 2021 Liberal election platform, there is some hope that the bill will make it through the legislative process.
Meanwhile, Bill C-294, introduced in June by Conservative MP Jeremy Patzer, would create an expanded interoperability exception. Interoperability exceptions to the anti-circumvention measures can be found in the Copyright Act, but they do not go far enough to maintain a level playing field, harming open source software adoption and the interoperability of software-enabled products. The obvious solution is to create an exception the substantially broadens the interoperability exception.
The bill, which was debated in the House of Commons, seeks to do just that:
41.12 (1) Paragraph 41.1(1)(a) does not apply to a person who owns a computer program or a copy of one, or has a licence to use the program or copy, and who circumvents a technological protection measure that protects that program or copy for the purpose of obtaining information and allowing the person to make the program or a device in which it is embedded interoperable with any other computer program, device or component;
The underlined words represent the changes that expand the existing exception. The bill has received positive comments from all parties. For example, Liberal MP Miao commented:
The Copyright Act, as it currently reads, represents an obstacle to the ability of Canadians to extend the life cycles of their software-enabled products protected by digital locks. The Copyright Act prohibits Canadians to circumvent digital locks protecting copyrighted content like software. An exception to this prohibition already allows the circumvention of digital locks for the purpose of interoperability, but it is limited to the making of two computer programs interoperable. Bill C-294 seeks to expand this exception to allow Canadians to also circumvent digital locks to make their software-enabled products interoperable with other devices or components. This bill will work in conjunction with my private member’s bill, Bill C-244, which was just voted on, to allow Canadians an increased autonomy over their purchased goods.
The two bills suggest that MPs have lost patience with government copyright officials that have been unwilling to address longstanding concerns with Canada’s digital lock rules. Given the failure to exercise their regulation making authority, it falls to elected officials to fix some of the world’s restrictive rules that have hurt Canadian consumers, farmers, innovators, and the environment.
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A prudent and long overdue step of progress, but guaranteeing fair-use of legitimately obtained content would go a long way.