[Sent with the Canadian Coalition for Electronic Rights’ letter-writing app]
Bill C-11 must allow TPM circumvention for lawful purposes
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
Photo courtesy of Benj Mako Hill, used under CC 2.0 license
CBC News has run an excellent article that explains the implications of Bill C-11’s protection of digital locks (a.k.a. DRM for “digital rights management,” or TPM for “technological protection measures”). “If passed in its current form,” they write, the Copyright Modernization Act will:
- Prohibit the circumventing of digital locks, even for legal purposes — such as the education or satire uses protected by other sections of the Act. This is one of the most controversial parts of the legislation. Many experts have criticized the government for not including an exemption that would allow for the bypassing of digital locks for legitimate purposes, such as the copying of parts of digitally locked textbooks to view on another device or for use in an assignment.
- Prohibit the manufacture, importation and sale of technologies, devices and services designed primarily for the purpose of breaking digital locks. This includes technology designed to allow you to play foreign-bought DVDs on your North American player, for example.
The government’s rationale for keeping the TPM protection seems to suggest that consumers can always opt to purchase unlocked content and devices. But that’s simply untrue, and as many critics point out, legal protection of digital locks creates an incentive for media and tech companies to put them on more and more of what they sell.
For more examples of just how wide-reaching the effects of Bill C-11’s “constitutionally suspect” digital lock protection will be, see Michael Geist’s blog, which has started a “Daily Digital Lock Dissenter” series to catalogue its harms. He comes out swinging today on behalf of BC’s Resource Centre for the Visually Impaired, quoting its statement that TPMs “interfere with the use of some, if not all, of the adaptive technologies used by students with perceptual disabilities to access educational materials.”
It will be disastrous for Canadian industry, culture, and society should the government to insist on digital lock protection in C-11, especially since — as the CBC rightly notes — C-11 is, in most other respects, a balanced and even progressive bill.
“Copyright changes: how they’ll affect users of digital content.” CBC News 30 Sept. 2011.
Geist, Michael. “The Daily Digital Lock Dissenter, Day 1: The Provincial Resource Centre for the Visually Impaired.” Michael Geist [blog] 3 Oct. 2011.