Open letter to the government about Bill C-11

[Sent with the Canadian Coalition for Electronic Rights’ letter-writing app]

Bill C-11 must allow TPM circumvention for lawful purposes

Dear Ministers,
I would like to convey my concerns and suggestions for points of revision and amendment in regards to Bill C-11, The Copyright Modernization Act. Bill C-11 appears to be more flexible than the previous attempts at copyright reform, but it is fundamentally flawed by the inclusion of strict, anti-circumvention protections for TPMs or “digital locks.”
The anti-circumvention provisions included in Bill C-11 unduly incentivize corporate copyright owners and distributors in the content and culture industries to exercise inordinate control over Canadians’ uses of media and technology; it has been cogently argued that these provisions are not constitutional.
A solution to Bill C-11’s contentious core problem and the means to avoid the unintended consequences generated by the broad protection for digital locks is to amend the Bill to permit the circumvention of digital locks when done for lawful purposes. This approach is compliant with the WIPO Internet Treaties, provides legal protection for digital locks, and maintains a much better copyright balance between creators and users. Both the UK and the USA (among other countries) have qualified their recent copyright reform legislation to permit circumvention for lawful purposes.
Correspondingly, the ban on the distribution and marketing of devices or tools that can be used to lawfully circumvent must be eliminated, by removing paragraph 41.1(c) (and any associated references or any paragraphs in the Bill that would be rendered irrelevant by this change).
The government’s own briefing for ministers on C-11’s predecessor, Bill C-32, acknowledged that digital locks are not lawfully subject to copyright protection. I urge the government to act in consistency with its own statements on the inapplicability of copyright law to TPMs.
It is in the best interests of Canadian business, consumers, creators, educators, and citizens to amend Bill C-11 to clearly permit TPM circumvention for lawful uses, and to remove the all-encompassing ban on circumvention tools.

Mark A. McCutcheon

Table by CCER, used under Creative Commons 2.5 license

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