The only option that Bill C-32 offers creators is digital locks, which freezes current revenue streams for creators, and creates an illogical loophole in the copyright Bill by taking away the very rights the Bill grants to consumers in its other sections. Digital locks may work for software but they are not forward thinking and they are not popular with consumers. Digital locks are not a substitute for a clear revenue stream for creators.
We believe that copyright law should prohibit the circumvention of TPMs to a degree that would satisfy the World Intellectual Property Organization copyright treaties, but that would also provide for fair dealing, retail competition, security research, the protection of personal information, and accessibility for the disabled. Penalties for circumventing TPMs must apply only to cases of actual infringement. There is no merit in penalizing individuals who circumvent TPMs but do not distribute the unlocked materials or otherwise infringe on copyright in a fair-dealing context. The use of proprietary TPMs tied to reader or player devices must not be allowed to create an uncompetitive retail environment, or a retail environment in which Canadian content is only minimally visible or available to Canadian consumers.
The Bill also favours digital lock business models for the sale and delivery of content over unlocked means of dissemination. In the traditional model, copyright holders control the exclusive right to reproduce content onto CDs or DVDs. Once an unlocked copy is created, rights holders cannot control the application of copyright exceptions such as fair dealing. But the Bill creates a different situation simply because a copy of digital content is delivered with a digital lock. This is an economically inefficient interpretation of an Act that is meant to fairly balance the interests of rights holders and users to further the interests of society as a whole.
While consumer groups have been making this case against technological non-neutral copyright for months (and Charlie Angus raised precisely this point in the House of Commons yesterday expressing concern about a “two-tier set of rights”), the above quote is a slightly modified version of arguments by the Entertainment Software Association of Canada, one of the lead proponents of the digital lock rules.
The key policy for software authors is “technological measures”, given this policy is about what software the owners of computers are and are not allowed to install and use on their own hardware. The Liberal Bill C-60 recognized the nuances of the 1996 WIPO treaties and tied anti-circumvention legislation to activities that would otherwise infringe coyright. The WIPO treaties use language such as:
Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.
Being “used by authors in connection with” and “or permitted by law” suggests that anti-circumvention legislation should be tied to infringing activities. Copyright and other laws (including privacy law) should trump technological measures when there is a conflict, not the other way around. By clarifying that the anti-circumvention legislation is tied to copyright, the legislation could also avoid providing any protection for technical measures applied to devices by other than their owners.
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:
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Michael Geist
mgeist@uottawa.ca
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