Post Tagged with: "circumvention"

Pulling a Fast One?: Who Is Really Hurt By C-32’s Missing Fair Dealing Circumvention Exception

For the past two Bill C-32 committee meetings, Conservative MP Ed Fast, a new member of the committee, has emerged as an important questioner. Fast has focused on the digital lock rules with several exchanges that defend the government’s approach. While dozens of groups (including education, consumer groups, libraries, archivists, retailers, and technology companies) have called for a link between circumvention and copyright infringement, Fast believes that opening that door would effectively eliminate the use of digital locks.

For example, yesterday he asked the Canadian Federation of Students how it could justify “eliminating digital locks altogether by allowing circumvention for fair dealing purposes?” Last week, he had a similar exchange with the Canadian Civil Liberties Association, stating “my concern is if you go that extra step and allow circumvention for fair dealing, you’ve now made it so much more easy to actually allow the cheaters to undermine the system, where digital locks become absolutely meaningless.”

Fast has clearly given some thought to the digital lock issue, but he is wrong that linking circumvention to actual copyright infringement would render digital locks irrelevant.

U.S. Developments Demonstrate Canada’s C-32 Digital Lock Rules More Restrictive Than DMCA

Since the introduction of Bill C-32, I have consistently argued that the digital lock provisions are far more restrictive than what is required under the WIPO Internet treaties. Now two recent developments in the U.S. demonstrate that the Canadian proposal is also considerably more restrictive than what is found in the U.S.

First, a significant new appellate court case from the 5th Circuit Court of Appeals has concluded that the restrictions on circumventing an “access control” (ie. a digital lock that restricts access to a work rather than a copy control which restricts copying of a work) are far more limited than previously thought. With language that bears a striking similarity to those arguing circumvention should be permitted for lawful purposes, the U.S. appeals court states:

Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.

In other words, the U.S. court has found that DMCA is limited to guarding access controls only to the extent that circumvention would violate the copyright rights of the copyright owner. This is very similar to what many groups have been arguing for in the context of Canadian legal reform.