We continue our comprehensive analysis of Bill C-32, Canada’s recently tabled copyright reform legislation. The topic has become an increasingly forbidden topic to discuss, however, we are more than happy to forge ahead and discuss the issues brought forth by the legislation for the sake of understanding this rather complicated piece of legislation.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
Introduction
Part 5 continues on page 3 of 4 in Canada’s latest copyright reform legislation. We are edging closer to the end of the legislation, but this legislation has been packed full of interesting things both positive and negative (in our opinion). We’ve discussed destruction of lessons 30 days after the course concludes, fair dealing rights being overridden by digital locks, damages and the differences between commercial and non-commercial infringement and ISP liability to name a few broad topics we’ve already covered up to this point.
Before we continue, we should point out, as we have in previous sections, that this is not a legal opinion nor is this brought forth by someone who is trained in the workings of Canadian law. This analysis is merely one average Canadian citizen reading through the legislation and publicly talking about the different provisions.
Section 47 – The Anti-Circumvention Section – The Definition of Copy Controls
Those who work on behalf of foreign corporate interests have used the exceptions to anti-circumvention as a reason to dismiss advocates of a balanced copyright because, supposedly, they refuse to acknowledge that there are exceptions to anti-circumvention. Very well, let’s go over this section too and see what we find. First off, we should note the definition because there may have been a little confusion about the particular nuance of the use of the word “effective”.
“technological protection measure” means any effective technology, device or component that, in the ordinary course of its operation,
(a) controls access to a work, to a perform- er’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner; or
(b) restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19.
There was discussion over what the legislation meant by “effective”. Some suggested that the technological protection measure must be impervious to circumvention in order for it to be, as the legislation puts it, “effective”. Unfortunately, that doesn’t appear to be what this portion of the legislation means because it explicitly talks about how it’s suppose to operate in the ordinary course of operation. If it was circumvented, then the digital lock isn’t operating ordinarily. Sadly, I personally would have to call the myth that only uncircumventable DRM would be “effective” debunked.
Section 47 Continued – Forbidden Anti-circumvention
This next part covers a huge amount of ground, so we’ll begin by looking at the first part of this:
41.1 (1) No person shall
(a) circumvent a technological protection measure within the meaning of paragraph (a) of the definition “technological protection measure” in section 41;
(b) offer services to the public or provide services if
(i) the services are offered or provided primarily for the purposes of circumventing a technological protection measure,
(ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological protection measure, or
(iii) the person markets those services as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market those services as being for those purposes; or
(a) is very clear, you simply cannot circumvent a digital lock. The practice is banned, period. How enforceable is this? That is very debatable and the differences of opinion can be seen on whether you circumvented the digital lock on a movie to make a back-up or if you circumvented a digital lock for commercial purposes. Personally, this appears to be just something that can be tacked on to a list of offenses when someone is busted thanks to other infractions of the law from a practical enforcement standpoint.
(b) on the other hand is quite interesting because it seems to simply ban any commercial involvement of a piece of software that could be used to circumvent a digital lock when looking at (ii). Open source or freeware software might get by, but legally speaking, you can’t advertise that software primarily to circumvent a digital lock in Canada. Practically speaking, if this were put in place in law, then those businesses operating in Canada will simply ship off shores which would mean less tax revenue for the Canadian government. They can still market their product to consumers via the internet, but the benefits of such businesses being in Canadian soil will be lost.
The section is not done yet though:
(c) manufacture, import, distribute, offer for sale or rental or provide — including by selling or renting — any technology, device or component if
(i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological protection measure,
(ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a technolog- ical protection measure, or
(iii) the person markets the technology, device or component as being for the purposes of circumventing a technological protection measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.
It sounds like (c) simply re-iterates and clarifies that one cannot create any anti-circumvention software is circumvention is its primary purpose on Canadian soil. The only difference is that this section says that you can’t even “distribute” the software on top of it. This really throws some legal uncertainty at software developers because if their software is somehow able to circumvent a digital lock, are they liable? At this point in the legislation, that really isn’t entirely clear and may be up for courts to decide what, as the Russians once put it, math is or isn’t legal.
Paragraph 2 clarifies that rights holders are entitled to remedies should a digital lock be circumvented:
(2) The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which paragraph (1)(a) has been contravened is, subject to this Act and any regulations made under section 41.21, entitled to all remedies — by way of injunction, damages, accounts, delivery up and otherwise — that are or may be conferred by law for the infringement of copyright against the person who contravened that paragraph.
Is it statutory damages? Interestingly enough, the answer is no when one reads (3):
(3) The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which paragraph (1)(a) has been contravened may not elect under section 38.1 to recover statutory damages from an individual who contravened that paragraph only for his or her own private purposes.
So, what the damages are exactly isn’t really clear. It’s a chilling concept considering what (4) says:
(4) Every owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording in respect of which a technological protection measure has been or could be circumvented as a result of the contravention of paragraph (1)(b) or (c) is, subject to this Act and any regulations made under section 41.21, entitled to all remedies — by way of injunction, damages, accounts, delivery up and otherwise — that are or may be conferred by law for the infringement of copyright against the person who contravened paragraph (1)(b) or (c).
So, if one person can sue the individual who created a tool that could be used to circumvent a digital lock, then anyone could theoretically sue that individual. So really, it doesn’t matter what the amount the awards can be, the fact remains that they can be sued for a seemingly unlimited number of times. The amount each doesn’t seem to matter.
Section 47 Continued – The First Exception 9 National Security
This is the first of exceptions to anti-circumvention. If you’re a consumer hoping this is good news, you’d be disappointed as it’s not for you:
41.11 (1) Paragraph 41.1(1)(a) does not apply if a technological protection measure is circumvented for the purposes of an investigation related to the enforcement of any Act of Parliament or any Act of the legislature of a province, or for the purposes of activities related to the protection of national security
So, if it’s a matter of national security and you are a part of an enforcement body, then you can break a digital lock. Doesn’t seem like much of an exception to me.
Section 47 Continued – Exception 2 – Interoperability
Interestingly enough, this is the second time this exception is seen in the legislation:
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 sole purpose of obtaining information that would allow the person to make the program and any other computer program interoperable.
So if you want to increase interoperability of a program, you have an exception. Again, doesn’t appear to be much of an exception.
Section 47 Continued – The Third Exception – Encryption Research
This also has been seen earlier in the legislation and this section clarifies that if you are researching encryption, then you have an exception that legally allows you to break a digital lock:
41.13 (1) Paragraph 41.1(1)(a) does not apply to a person who, for the purposes of encryption research, circumvents a technological protection measure by means of decryption if
It’s good news for researchers, but if you are a consumer, this exception also doesn’t seem to hold any weight for their daily activities.
Section 47 Continued – The Fourth Exception – Privacy
This might be some good news for consumers:
41.14 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technolog- ical protection measure if
(a) the work, performer’s performance fixed in a sound recording or sound recording that is protected by the technological protection measure is not accompanied by a notice indicating that its use will permit a third party to collect and communicate personal information relating to the user or, in the case where it is accompanied by such a notice, the user is not provided with the option to prevent the collection and communication of personal information without the user’s use of it being restricted; and
(b) the only purpose of circumventing the technological protection measure is to verify whether it permits the collection or communication of personal information and, if it does, to prevent it.
So if there is a digital lock communicating personal information and there wasn’t a proper notice that the digital lock would communicate such information, then they the digital lock can be circumvented for the purpose of finding out for sure if their privacy was compromised.
While this might sound good at first, if you are like me and have purchased software legally, you would know that this doesn’t ultimately mean a whole lot because, quite frequently, a notice that would say that ‘x’ software collects personal information, is simply buried under a paragraph of fine print on the casing. Sometimes, they don’t even have that. Sometimes, a consumer might purchase a piece of software and all it says is something like, “By opening this case and breaking the seal, you agree to all the rules and regulations accompanied by the software which is located inside this sealed case.” This drives a lot of people who legitimately buy software or games insane. How can you find out about the terms and conditions without agreeing to it then. Half the time, you can’t even see the terms and conditions without actually, as far as that dreaded notice is concerned, agreeing to it. Sometimes, a URL is visibly printed, other times, it’s not. If only consumers had some sort of laser vision to cut through the packaging.
So as far as consumers are concerned, this exception is of minimal benefit. If you know computers quite a lot, this might be of some benefit, but otherwise, this exception is quite meaningless to consumers in a practical sense.
Section 47 Continued – The Fifth Exception – Security
This is a third exception that has been seen earlier in this bill:
41.15 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technolog- ical protection measure that is subject to that paragraph for the sole purpose of, with the consent of the owner or administrator of a computer, computer system or computer network, assessing the vulnerability of the comput- er, system or network or correcting any security flaws.
So, if you’re a security expert, and as long as you have permission to do so on a given network or computer, you can break a digital lock to assess security vulnerabilities. It’s good news of second-hand nature because if another badly programmed rootkit is found on a CD with a digital lock, then it’s possible for a security warning to be posted without fear of breaking a copyright law.
This exception is useful on a secondary nature, but typically after-the-fact in practical terms because it’s usually after that CD has been out in the market that something like this is discovered.
So, the exception is of benefit to security researchers, not directly of benefit to consumers.
Section 47 Continued – The Sixth Exception – Disabilities
It’s great that those with disabilities have an exception like this:
41.16 (1) Paragraph 41.1(1)(a) does not apply to a person with a perceptual disability, another person acting at their request or a non-profit organization acting for their benefit if that person or organization circumvents a technolog- ical protection measure for the sole purpose of making a work, a performer’s performance fixed in a sound recording or a sound recording perceptible to the person with a perceptual disability.
So, if you have a disability and can’t access a work normally, one can break that digital lock only to allow that person to enjoy that work. Pretty straight forward.
This exception does benefit a small portion of the consumer population, but not the general consumer population.
Section 47 Continued – The Seventh Exception – The Broadcaster’s Exception
An interesting exception:
41.17 Paragraph 41.1(1)(a) does not apply to a broadcasting undertaking that circumvents a technological protection measure for the sole purpose of making an ephemeral reproduction of a work, a performer’s performance fixed in a sound recording or a sound recording in accordance with section 30.9, unless the owner of the copyright in the work, the performer’s performance fixed in a sound recording or the sound recording that is protected by the technological protection measure makes available the necessary means to enable the making of such a reproduction in a timely manner in light of the broadcasting undertaking’s business requirements.
So if content is going to b broadcast and there’s no unprotected copies available to that broadcaster, then that broadcaster is allowed to break that digital lock.
Another exception that doesn’t seem to really have any benefit to the consumer.
Section 47 Continued – The Eighth Exception – Radio
This seems to be a follow-up to broadcasters for the benefit of radio:
41.18 (1) Paragraph 41.1(1)(a) does not apply to a person who circumvents a technolog- ical protection measure on a radio apparatus for the sole purpose of gaining access to a telecommunications service by means of the radio apparatus.
If I’m reading this correctly, then it sounds like if a radio broadcaster gets a CD that has copy protection, then they are allowed to break that copy protection so they can air that music.
Once again, no real benefit to consumers, though radio broadcasters would be happy.
Conclusion
There is a myth perpetuated by the foreign corporate interests who want to tighten copyright rules that consumer rights advocates won’t talk about exceptions to circumvention and that the exceptions are beneficial to consumers so no one needs to worry about the anti-circumvention rules. One helps consumers of a secondary nature and one affects a small percentage of consumers. There are 8 exceptions and a grand total of 0 benefit general consumers. Myth completely debunked.
We’ve gone through a few of the other anti-circumvention rules and it’s definitely US style modeled after the DMCA. If there’s a myth that none of this legislation is based off the negative aspects of the DMCA, that myth is also debunked.
The third myth is that only non-circumvented digital locks fall into anti-circumvention rules in this legislation. Once again, we found that this isn’t really true and only takes a small portion of a sentence and takes it out of context. Third myth debunked.
The anti-circumvention section isn’t completed yet, but we’ve covered a huge amount of ground in this. We’ve noted that developers could be sued practically an unlimited number of times even though it’s not statutory damages. There’s so many gray areas, that it could easily serve to discourage programming and development in Canada and force businesses that would otherwise be of a tax benefit to the Canadian government off shores to other countries.
We are also not done page 3, but we are almost through with this page. After this, there’s only one page left, so the light at the end of this tunnel is becoming visible now.
Previously: A Detailed Look at Bill C-32 – Canada’s Copyright Reform Bill (Part 1)
A Detailed Look at Bill C-32 – Canada’s Copyright Reform Bill (Part 2)
A Detailed Look at Bill C-32 – Canada’s Copyright Reform Bill (Part 3)
A Detailed Look at Bill C-32 – Canada’s Copyright Reform Bill (Part 4)
See also: Bill C-32 – Canada’s latest copyright reform bill
Drew Wilson on Twitter: @icecube85 and Google+.
