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Bill C-11 Changes the Locks

Copyright Modernization Act comes with a fair deal of controversy


By Sangeetha Punniyamoorthy and Jenna Wilson

November 23 2012 issue


[Digital by Hannu Viitanen, Copyright by Sashkinw / Dreamstime.com]
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After several controversial attempts at reform, Canada’s copyright laws were finally brought into the 21st century with the passage of Bill C-11, the Copyright Modernization Act.

In tabling the bill, the federal government sought to provide a clear, predictable and fair copyright regime, and on the user side of the equation, indeed, the act brings some tangible improvements to user rights, expanding the scope of fair dealing exceptions to copyright infringement, and addressing modern user activities like “time-shifting” television programs and making “mashups” for non-commercial purposes.

But the amendments are still not without controversy, and one of the more contentious issues is the protection it grants for digital locks, which add a new layer of complexity to the relationship between users and copyrighted works.

Digital locks, or as they are referred to in the act, “technological protection measures” (TPMs), are broadly defined as any “effective technology, device or component” that, in the ordinary course of operation, controls access to a copyrighted work, or restricts its use.

TPMs have been in use for some time by some copyright owners to restrict the unauthorized copying, distribution, display, and playback of digital files embodying copyrighted works, such as music, movies and computer programs. For example, TPMs can operate to prevent opening a file unless certain security conditions are met, limit the number of times the file is transferred from one storage location to another, or prevent copying of all or part of a work.

However, by themselves, TPMs do not distinguish between “unauthorized” and “fair” dealings with works.

The act gives TPMs their own sui generis protection: Similar to provisions in the U.S. Digital Millennium Copyright Act, circumvention of TPMs, or facilitation by offering or providing services or tools primarily for the purpose of circumventing TPMs, is prohibited and subjects the infringer to injunction, damages, and penal sanctions, even if no copyright infringement results and the purpose of the circumvention was a fair dealing.

And circumvention, under the bare wording of the act, can be something as innocuous as the unauthorized bypassing of password protection from a legally obtained electronic document to electronically copy a few pages for research purposes — ​​​​​​​an action that might be a fair dealing, and not otherwise attract liability.

In addition, certain activities now expressly permitted by the Copyright Modernization Act, such as creating a copy of a movie from a legally purchased DVD for use on a mobile device, may subject the user to liability for copyright infringement if a TPM, as with copy protection, is defeated without the copyright owner’s permission.

Whether making that copy still constitutes fair dealing is a matter for later analysis for the courts, but then arguably the sui generis provision making unauthorized TPM circumvention illegal would still apply.

There are limitations to the anti-circumvention provisions restricting the availability or quantum of damages, and exempting certain user activities, such as creating interoperable computer software, encryption research, verifying the collection of personal information, and assessing the vulnerability of computer systems.

Regardless, these provisions render the scope and effectiveness of the fair dealing exception in safeguarding user rights unclear.

Interestingly, although the act was introduced with the intent to ensure that the copyright laws remained “technologically neutral,” the effect of TPM protection may be the opposite, because it changes the extent of protection available to copyright owners depending on the technological means chosen to deliver their products. The content of a few pages of a printed and bound book, for instance, can be photocopied by a user within the limits of fair dealing for private study or research but the same book content, presented in a digitally-locked e-book form, cannot be easily copied without defeating the TPM — ​​​​​​​although the user, in theory, could still copy-type or copy out passages by hand. The same user activity of copying applied to two DVDs of the same movie — ​​​​​​​one with copy protection, and one without—could result in different liability for the user if the copy protection is bypassed without permission.

The Supreme Court of Canada recently emphasized the importance of user rights in copyright law, the importance of balancing the public interest in the encouragement and dissemination of works and obtaining a just reward for the creator, and the need for copyright law to be technologically neutral. It will be interesting to see whether the courts will apply the same policy objectives to TPMs.

The government is currently working on the regulations before the act comes into effect in the upcoming weeks, so there is still some opportunity for a better balance of the anti-circumvention provisions — ​​​​​​​for example, by prescribing additional circumstances to allow for the bypassing of digital locks for legitimate purposes, such as copying of a digitally locked e-book to view on another device or for use in research.

But the fact remains that the anti-circumvention provisions create new liability for users who otherwise would have been engaging in legal activities, and consumers will need to be made aware as there is no requirement to notify that a product contains a TPM.

Jenna Wilson and Sangeetha Punniyamoorthy practise intellectual property law and litigation at Dimock Stratton LLP in Toronto.


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