The Lawyers Weekly - August 6, 2010

THE LAWYERS WEEKLY
August 6, 2010 | 9

BILL

disturbs rights
balance between
creators and users

Circumvention of
digital locks may
trigger liability
for users of
copyrighted works

After two failed attempts at legislative change in
2006 and 2008, Parliament has once again intro-
duced new copyright amendments in Bill C-32 in an
attempt to modernize the Copyright Act — but “third
time lucky” probably doesn’t apply.
As one example, the controversial and sharply
criticized digital lock provisions in Bill C-32 seem
to disturb the balancing act between the needs of
rewarding creators and promoting the public inter-
est through the encouragement and
dissemination of intellectual and
artistic works, identified by the
Supreme Court of Canada as the role
of copyright law.
Digital locks, or as they are
referred to in the bill, technical pro-
tection measures (TPMs), are used to
provide greater control over access to
and dissemination of digital content.
Advocates of TPMs claim they are
effective in limiting unauthorized
copying, performance, distribution
and display of copyrighted works.
Therefore, previous attempts at copy-
right reform included provisions pro-
hibiting circumvention of TPMs with
varying degrees of severity.
In 2006, Bill C-60 included legal
protection for TPMs to control
digital content; however, Parliament
avoided the harsh approach taken by
the U.S. Digital Millennium Copyright Act provi-
sions, which provide the copyright owner with a
cause of action against anyone who circumvents
any sort of technological control, even without
infringement of copyright. Unlike the American
approach, the intention of Bill C-60 was to link
anti-circumvention to actual copyright infringe-
ment: the Canadian government pledged in 2005
that circumvention of a TPM applied to copy-
righted material would only be illegal if carried out
with the objective of infringing copyright.

SANGEETHA PUNNIYAMOORTHY

&JENNA WILSON

ALENGO / IS TOCKPHOTO. COM

The next attempt, Bill C-61, had further-reaching
provisions. The proposed 2008 amendments would
have made it an infringement to circumvent TPMs
that in their ordinary course controlled access to a
copyrighted work, or to offer services or provide
technology to circumvent these measures. Excep-
tions were provided for creating interoperable com-
puter software, encryption research, verifying the
collection of personal information, assessing the vul-
nerability of computer systems and making a work
available to a person with a perceptual disability.
Bill C-32 reprises Bill C-61’s digital lock provi-
sions, again making the circumvention of TPMs
illegal under s. 41.1(1)(a), subject to similar excep-
tions. There have been mixed reactions. Several
content-producing stakeholders, including the Can-
adian Recording Industry Association, the Enter-
tainment Software Association of Canada and the
Canadian Independent Music Association, have
applauded the introduction of the new bill.
Others have sharply criticized the TPM provi-
sions because of their incursion into private, educa-
tional and non-commercial activities: the Business
Coalition for Balanced Copyright called for revision
of the provisions, noting that some parts of the pro-
posed legislation “unfairly restrict consumer free-
dom,” while the Canadian Bookseller Association
has asked the government to “go even further in the
area of access, by allowing the public — particularly
students and educators—to circumvent digital
locks on material sought for educational and strictly
non-commercial purposes.” The Canadian Library
Association expressed disappointment that “long-
standing rights, the heart of copyright’s balance, as
well as the new rights, are all tempered by the over-
reach of digital locks.”
Will the anti-circumvention provisions in Bill
C-61 maintain the current copyright balance
between users and creators? On their face, the pro-
visions provide copyright owners with even more
protection for their works, permitting them to
exclude users from engaging in activities that other-
wise might have been fair dealing. Some activities
that are currently exempted from copyright
infringement under the fair dealing provisions of
the Copyright Act—such as copying a “fair” amount
of a work for the purpose of research or private
study—may automatically trigger liability under
Bill C-32 if the activity involves circumvention of a
digital lock. Circumvention may be something as
simple as removing a password from an electronic
document to facilitate copying of part of its content.