Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP

Copyright

CETA Update: EU Continues To Press on IP

The Department of Foreign Affairs held a call today with various groups to provide an update on the Canada – European Union Comprehensive Trade Agreement negotiations. The department indicated that there has been progress on virtually all issues and the broad shape of the deal is being outlined. On intellectual […]

July 27, 2010 — 4 comments — News

The U.S. DMCA vs. Bill C-32: Comparing the Digital Lock Exceptions

Yesterday’s U.S. DMCA Rulemaking decision, which established a series of new anti-circumvention exceptions, attracted considerable attention on both sides of the border. In the U.S., critics of the DMCA noted the progress in addressing some of the DMCA’s most troubling consequences by creating exceptions for unlocking and jailbreaking cellphones and circumventing DVD locks in several circumstances (though the decision is hardly a panacea given the restrictions on distributing circumvention tools, contractual restrictions, and the absence of a general right to circumvent for lawful purposes).

From a Canadian perspective, the U.S. decision – combined with the recent 5th Circuit Court of Appeals ruling linking circumvention to copyright and the USTR decision to cave on the digital lock rules in ACTA – provides a timely reminder of the mistake that is the digital lock rules in C-32.

Looking back, Industry Minister Tony Clement said he wanted forward-looking legislation designed to last ten years, yet the scope of Bill C-32’s anti-circumvention exceptions became outdated in less than ten weeks. Canadian Heritage Minister James Moore, when not calling critics “radical extremists,” emphasized that Bill C-32 was not identical to the DMCA. While he had the notice-and-notice system in mind, weeks later his comments became accurate since it turns out the DMCA is far less restrictive than C-32.

Just how badly does the Canadian bill stack up? On the two key issues in the bill – digital locks and fair dealing – Canada is far more restrictive than the U.S. Consider:

July 27, 2010 — 17 comments — News

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.

July 26, 2010 — 20 comments — News

British Library on Copyright: Help or Hindrance?

The British Library has released a new report that includes a dozen short contributions reflecting on whether copyright helps or hinders from a research perspective. The contributions include several suggestions for extending the British fair dealing provision.

July 26, 2010 — 3 comments — News

Could the EU Walk Away From ACTA?

Over the past week, I have had several posts on ACTA in the wake of the most recent leaked text, including a scorecard on the major remaining areas of disagreement, one assessing the growing rift between the U.S. and E.U., Canadian positions on ACTA, the changed U.S. position on anti-circumvention rules, and a look at geographical indications, a key issue for the EU. On top of these posts, there is additional information disclosed last weekend that Luc Devigne, the lead EU negotiator is taking on new responsibilities (though the EU says he will continue on ACTA).

Putting the pieces together, I think it may be worth considering whether the EU is prepared to walk away from ACTA altogether, leaving the U.S. with a far smaller agreement that cannot credibly claim to set a standard for the G8 or developed world.

Why raise this possibility?

July 22, 2010 — 14 comments — News