Post Tagged with: "digital locks"

Beyond Users’ Rights: Supreme Court Entrenches Technological Neutrality as a New Copyright Principle

Last week, I posted on the significance of the Supreme Court of Canada’s five copyright decisions with an emphasis on the shift from fair dealing to fair use. This week, I have several additional posts planned including one on the implications for Access Copyright as well as a broader examination of how the court has elevated users’ rights within Canadian copyright law. This post focuses on the second major development in the cases: the articulation of technological neutrality as a foundational principle of Canadian copyright. The technological neutrality principle could have an enormous long-term impact on Canadian copyright, posing a threat to some copyright collective tariff proposals and to the newly enacted digital lock rules.

The technological neutrality principle is discussed in several cases, but gets its most important airing in the Entertainment Software Association of Canada v. SOCAN decision. The majority of the court states:

July 16, 2012 — 11 comments — News

The Missing Copyright Docs, Pt 1: Justice Dept Warned About Constitutionality of Digital Lock Rules

The House of Commons may have passed Bill C-11, but the constitutional concerns with the copyright bill and its digital lock rules will likely linger for years. Many experts believe that the government’s decision to adopt one of the most restrictive digital lock approaches in the world – it creates potential liability without actual copyright infringement – renders the provision vulnerable to constitutional challenge.

The Department of Justice’s take on the constitutional concerns has long been the subject of speculation, yet the legal opinion is protected by solicitor-client privilege. However, late last week I received records from an Industry Canada access to information request that includes the internal departmental analysis of digital lock rules that was prepared in advance of Bill C-32. The document includes a summary of the Department of Justice legal opinion, information on other Justice legal opinions, and details of concerns raised internally by the Competition Bureau (the Competition Bureau concerns will be discussed in a separate post tomorrow). The net result is that the document confirms that there were concerns within Industry Canada and from the Department of Justice about the constitutionality of the digital lock approach. According to Industry Canada’s analysis:

TPMs may raise some concerns under the Canadian Charter of Rights and Freedoms, especially with respect to the freedom of expression entailing the right to access information. For instance, provisions prohibiting the circumvention of DVD regional coding may violate the Charter where the user seeks to access information that is consistent with the rights (s)he may have purchased and where no copyright infringement occurs (N.B. Notwithstanding the potential constitutional invalidity of anti-circumvention provisions re. regional coding, the circumvention may nonetheless be unauthorized and therefore unlawful under applicable contractual terms).

The key source document is a legal opinion dated March 2, 2007, from the Department of Justice on the “assessment of potential Charter risks of prohibiting the act of circumvention of access-control TPMs and the provision of services or sale of devices to circumvent any kind of TPM.” The opinion, which was likely updated for Bill C-11, is described in the Industry Canada summary as follows:

June 25, 2012 — 10 comments — News

Why Bill C-11’s Digital Lock Rules May Hurt Copyright Enforcement

The Standing Committee on Industry, Science and Technology, which is continuing its study on intellectual property, received some important evidence last week from an Ottawa firm focused on IP enforcement issues. Harry Page, the CEO of UBM TechInsights, told the committee that Bill C-11 will actually impede the ability to enforce intellectual property rights. Page’s concern is the same as that expressed by businesses, consumer groups, education: overbroad digital lock rules. According to Page:

we have a concern that aspects of the Copyright Act may actually have an unintended consequence with respect to our local technology community and our ability help people in the protection of their intellectual property. Specifically, our concern is that the anti-circumvention provisions could create legal uncertainty where that would actually discourage the use of forensics to detect infringement of other forms of intellectual property. Even though the fact is that the circumvention of those protection measures actually have nothing to do with the copyright material under protection.

While the committee legislation is now passed and will soon be enacted we will continue our pledge to continue to work with the government and the appropriate bodies to ensure that the regulatory language bringing the act into force are clear and precise so they do not hinder the full and forceful protection of Canadian intellectual property and the protection of intellectual property creators and owners in the international marketplace.

June 12, 2012 — 10 comments — News

India Passes Digital Lock Rules That Link Circumvention to Copyright Infringement

India’s two Houses of Parliament passed copyright reform legislation this month that includes digital lock provisions. The Indian approach is very similar to what dozens of groups recommended for Canada as it links circumvention to copyright infringement. The new Indian digital lock rules state: 65A. (1) Any person who circumvents […]

May 25, 2012 — 5 comments — News

Bill C-11 Enters Final House Debate With Green Party & Bloc Amendments

Bill C-11, the copyright reform bill, is scheduled for debate today, with a long list of proposed amendments from the Green Party’s Elizabeth May and from Bloc MP AndrÃ© Bellavance. Given the government’s previous rejection of NDP and Liberal amendments, there is little reason to believe any of these proposals […]

May 14, 2012 — 18 comments — News