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Bill C-32: Legal Protection for TPMs
barry b. [email protected]
416-601-7949
9887585
Insight Conference: RIGHTS and COPYRIGHTBringing Canada into the 21st Century
December 8, 2010
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Topics
Does Bill C-32 properly implement the WIPO Treaties consistent with
approaches used by Canadas trading partners?
Does Bill C-32 permit circumvention of TPMs to permit copying for fair dealing,
educational and other purposes?
Does Bill C-32 have a flexible framework to permit new exceptions to be made
by regulation?
Can the WIPO Treaties be implemented by limiting protection to circumvention
for the purposes of infringement? Should circumvention of TPMs for private copying purposes be permitted?
Are private copying exceptions user rights that trump legal protection for
TPMs?
Do other jurisdictions permit an exception for private copying to trump TPMs?
Would an exception for private copying that permits circumventing TPMs violate
the Berne Three Step Test? Can the WIPO Treaties be complied with by permitting circumvention of TPMs
for private copying?
Does Canada have any trading partners that have private copying, no levy, and
permit circumventing a TPM for private copying?
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Does Bill C-32 properly implement theWIPO Treaties consistent with approaches
used by Canadas trading partners?
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Contracting Parties may only be sure that they are able to fulfill their obligationsunder Article 11 of the Treaty if they provide the required protection andremedies:
(i) against both unauthorized acts of circumvention, and against themanufacture, importation and distribution of circumvention tools and the offering
of services for circumvention); (ii) against all such acts in respect of both technological measures used for
access control and those used for the control of exercise of rights, such ascopy-control devices;
(iii) not only against those devices whose only sole purpose iscircumvention, but also against those which are primarily designed and producedfor such purposes
(iv) not only against an entire device which is of the nature just describedbut also against individual components or built-in special functions.
Guide to the Copyright and Related Rights Treaties Administered by WIPO,November 2003, at para CT11.16.
What Are The Requirements For Complying With The WIPO
Treaties?
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Bill C-32 TPM definitions
technological protection measure means any
effective technology, device or component that, inthe ordinary course of its operation,
(a) controls access to a work, to a perform- ers
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 performers performance fixed in a sound
recording or to a sound recording of any act
referred to in section 3, 15 or18 [infringement]
and any act for which remuneration is payable
under section 19 [royalties].
circumvent means,
(a) in respect of a technological protection measure
within the meaning of paragraph (a) of the
definition technological protection measure, to
descramble a scrambled work or decrypt an
encrypted work or to otherwise avoid, bypass,
remove, deactivate or impair the technological
protection measure, unless it is done with the
authority of the copyright owner; and
(b) in respect of a technological protection measure
within the meaning of paragraph (b) of the
definition technological protection measure, to
avoid, bypass, remove, deactivate or impair the
technological protection measure.
Industry Canada Fact Sheet: The bill recognizes that certain protections, such as restricted
content on news websites or locked video games, are important tools for copyright owners toprotect their digital works and are often an important part of online and digital businessmodels. While the music industry has moved away from digital locks on CDs, they continue to be used inmany online music services. Software producers, the video game industry and movie distributors alsocontinue to use digital locks to protect their investments. Canadian jobs depend on their ability tomake a return on their investment. Businesses that choose to use digital locks as part of theirbusiness models will have the protection of the law.
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Technological Protection Measures (TPMs) 41.1 (1) No person shall
(a) circumvent a technological protection measure withinthe meaning of paragraph (a) of the definitiontechnological protection measure in section 41;
(b) offer services to the public or provide services if
(i) the services are offered or provided primarily forthe purposes of circumventing a technologicalprotection measure,
(ii) the uses or purposes of those services are not
commercially significant other than when they areoffered or provided for the purposes ofcircumventing a technological protection measure,or
(iii) the person markets those services as being forthe purposes of circumventing a technologicalprotection measure or acts in concert with anotherperson in order to market those services as beingfor those purposes; or
(c) manufacture, import, distribute, offer for sale or rentalor provide including by selling or renting anytechnology, device or component if
(i) the technology, device or component is designedor produced primarily for the purposes ofcircumventing a technological protection measure,
(ii) the uses or purposes of the technology, device orcomponent are not commercially significant other thanwhen it is used for the purposes of circumventing atechnological protection measure, or
(iii) the person markets the technology, device orcomponent as being for the purposes of circumventinga technological protection measure or acts in concertwith another person in order to market the technology,
device or component as being for those purposes.
Exceptions to infringement:
1. Law enforcement and national security (s.41.11)
2. Interoperability of computer programs (s.41.12)
3. Encryption research (s.41.13)
4. Protection of personal information (s.41.14)
5. Computer and network security (s.41.15)
6. Perceptual disability (s.41.16)
7. Broadcast undertakings (s.41.17)
8. Radio apparatus (s.41.18)
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The C-32 TPM provisions are consistent with the WIPO Treatiesand permit copy control circumvention for fair dealing purposes
Country
Act ofCircumvention- AccessControlTechnologicalMeasure
Act ofCircumvention-CopyrightControlTechnologicalMeasure
CircumventionTools- AccessControlTechnologicalMeasure
CircumventionTools-CopyrightControlTechnologicalMeasure
CriminalSanctions
United
States
Prohibited (
1201 (a)(1))
Not prohibited
(by DMCA)
Prohibited (
1201(a)(2))
Prohibited (
1201(b))1204
EUCopyrightDirective
Prohibited (Art.6(3); Art. 6(1))
Prohibited (Art.6(3); Art. 6(1))
Prohibited (Art.6(3); Art. 6(2))
Prohibited (Art.6(3), Art. 6(2))
Remedies mustbe effective,proportionate anddissuasive.(Art.8)
Canada Prohibited
Not Prohibitedpermitscircumventionfor fair dealing,education andotherpurposes.
Prohibited Prohibited
Criminalsanctions in
CommercialCases
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Regulations to Deal With UnintendedConsequences
41.21 (1) The Governor in Council may make regulations excluding
from the application of section 41.1 any technological protection
measure that protects a work, a performers performance fixed in a
sound recording or a sound recording, or classes of them, or any class
of such technological protection measures, if the Governor in Council
considers that the application of that section to the technological
protection measure or class of technological protection measures
would unduly restrict competition in the aftermarket sector inwhich the technological protection measure is used.
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Regulations to deal with unintendedconsequences 41.21 (2) The Governor in Council may make regulations (a) prescribing additional circumstances in which paragraph 41.1(1)(a) does not apply, having
regard to the following factors:
(i) whether not being permitted to circumvent a technological protection measure that is
subject to that paragraph could adversely affect the use a person may make of a work, aperformers performance fixed in a sound recording or a sound recording when that use is
authorized,
(ii) whether the work, the performers performance fixed in a sound recording or the soundrecording is commercially available,
(iii) whether not being permitted to circumvent a technological protection measure that issubject to that paragraph could adversely affect criticism, review, news reporting,commentary, parody, satire, teaching, scholarship or research that could be made ordone in respect of the work, the performers performance fixed in a sound recording or the
sound recording,
(iv) whether being permitted to circumvent a technological protection measure that is subjectto that paragraph could adversely affect the market for the work, the performers performance
fixed in a sound recording or the sound recording or its market value,
(v) whether the work, the performers performance fixed in a sound recording or the soundrecording is commercially available in a medium and in a quality that is appropriate fornon-profit archival, preservation or educational uses, and
(vi) any other relevant factor; and
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Regulations to deal with unintendedconsequences
41.21(2)(b) requiring the owner of the copyright in a work, aperformers performance fixed in a sound recording or a sound
recording that is protected by a technological protection measure
to provide access to the work, performers performance fixed in
a sound recording or sound recording to persons who areentitled to the benefit of any of the limitations on theapplication of paragraph 41.1(1)(a) prescribed underparagraph (a). The regulations may prescribe the manner in
which, and the time within which, access is to be provided, as
well as any conditions that the owner of the copyright is to
comply with.
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Comparison of the flexibility of C-32s TPM provisions withthose in other countries to deal with unintended consequencesand technological changes
Country
Process to excludenew classes ofTPMs or classes ofworks
Process to ensureindividuals can availthemselves of the permittedexceptions
Regulations toexclude classesof TPMs wherethere they wouldunduly restrictcompetition
Mandated review
UnitedStates
Tri-annual reviewprocess before
Copyright Office toexclude classes ofworks for certainpurposes
N/A N/A 1201(a)(1)(D)
EUCopyrightD
irective
N/A
Article 6(4) Member Statesmust take appropriatemeasures to ensurebeneficiaries of an exception
can avail themselves of theenumerated exceptions to the
TPM provisions.
N/A N/A
Canada
s.41.21(2)(a)Regulations can bemade any time withbroad flexible criteriato exclude new
classes of TPMs.
s.41.21(2)(a) Regulations can
be made at any time to requirerights holders to provideaccess to a work to enableindividuals avail themselves ofthe enumerated exceptions tothe TPM provisions.
s.41.21(1)Regulations can bemade any time.
s.92 every 5 years
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Can the WIPO Treaties be implemented by
limiting protection to circumvention for thepurposes of infringement?
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A plain reading of Articles 11 and 18 of the WIPO Internet Treaties,
the definition of technological measure and new section 34.02 [of Bill
C-60] inevitably raise questions about the adequacy of the protection
for technological measures to enable Canada to ratify the WIPO
Treaties. In fact, in view of persuasive commentary including inparticular the WIPO Guide and legislative developments among
Canadas trading partners, the inevitable conclusion is thatCanadas legislation could not adequately implement itsobligations regarding technological measures under the WIPOInternet Treaties without significant amendment to the definitionand new section 34.02. Glen Bloom, Technological Measures andRights Management Information, October 25, 2005
The WIPO Treaties do not permit the type offramework provided for in previous Bill C-60
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The WIPO Treaties cannot be implemented by limitingprotection to circumvention for the purposes of infringement
It seems that the vehemently debated issues in connection with the TPM
provisions of Bill C-32 are the questions of (i) whether it is a treaty
obligation to protect both access-control and copy-control TPMs; (ii)
whether it is a treaty obligation to prohibit so-called preparatory acts (the
manufacture and distribution of protection-defeating devices, etc.); and
(iii) whether circumvention should only be prohibited when it is linked to
infringement. Canadas major trading partners have answered affirmatively
the first two questions and negatively the third one. I submit, along with
authoritative commentators, that in view of the treaty provisions and their
negotiation history these are the correct answers.
Dr. Ficsor, TPMs AND FLEXIBILITY (THE ABILITY OF BENDING
WITHOUT BREAKING) WHY SHOULD THE TPM PROVISIONS OFBILL C-32 PROTECT ACCESS CONTROLS AND PROHIBIT
PREPARATORY ACTS, http://www.iposgoode.ca/Ficsor-TPMs-and-
Flexibility.pdf
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The WIPO Treaties cannot be implemented by limitingprotection to circumvention for the purposes of infringement
Prof. Geist insists on flexible interpretation and implementation
of the TPM provisions, and alleges that those who do not agree
with him such as me are the advocates of inflexible
interpretation and implementation. The truth is that everybody
including myself, as I have clearly stated is of the view that theTPM provisions offer flexibility. The difference between us is only
that, while Prof. Geist as he quite clearly states is in favor of
an unlimited flexibility, myself and others are of the view that the
requirement of adequate protection sets limits in this respect.
Dr. Ficsor, TPMs AND FLEXIBILITY
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The WIPO Treaties cannot be implemented by limitingprotection to circumvention for the purposes of infringement
The subsequent practice of countries party to the two Treaties
implementing the TPM provisions indicates that Canadas major
trading partners have duly implemented the treaty obligations as
outlined aboveProf. Geist suggests the contrary. His examples
covering certain developing and transition countries and countries
which have not acceded yet to the Treaties, along with extremely fewisolated other cases, are not suitable to justify his position. Dr. Ficsor,
TPMs AND FLEXIBILITY
New Zealand has not ratified the WIPO Treaties.
It does happen time and again that certain Contracting Parties do
not fulfill their treaty obligations. In this respect, Switzerland is sucha country. Dr. Ficsor, TPMs AND FLEXIBILITY
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Should circumvention of TPMs for private
copying purposes be permitted?
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Each Exception is Limited To Where an Individual DoesntCircumvent a TPM: Why This is Necessary
The exceptions for format shifting (s.29.22), time shifting (s.29.23) and
backup copies (s.29.24) are all subject to the condition that the individual
does not circumvent a TPM in order to make the copy.
TPMs (and TPM protection) ultimately benefits both consumers, creators
and distributors of digital content since they enable the creation of a
diversified market for digital goods. Allowing individuals to circumvent these TPMs for personal uses
undermines the viability of these markets.
Innovative distribution models for digital goods require the protections
placed on media or content to be enforced in order to be effective.
Ad-supported on-demand business models are ineffective if individuals can
make new copies.
These conditions against TPM circumvention are even more essential
where the copying would go uncompensated, e.g. where there is no levy.
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Why the TPM Restrictions in the ExceptionsAre Necessary
Rent option allows the customer to
download a movie file with a TPM
that causes the file to automatically
delete itself at the expiration of rental
period (e.g. a week).
If consumers are allowed tocircumvent TPMs in order to format
shift copies, the Buy option is
completely ineffective since
consumers could create copies of
rented files without the TPMs that
cause the file to be deleted.
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Past 2-3 years has seen substantial
growth in distributors making content
available online using ad-supported
audio/video streaming model (Hulu,
Spotify, etc.).
Streaming technology that requires userto view advertisement is a form of
access-control TPM.
Distribution model is rendered ineffective
if end-users can legally create TPM-free
format-shifted or time-shifted copies.
New innovative distribution models of
digital media are dependent upon robust
TPM protections.
Why the TPM Restrictions in theExceptions Are Necessary+
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Music
Circumvent TPM put
song on iPod (format-
shifting or time
shifting)
End-user
Streaming music
from Spotify,
YouTube: free (ad-
supported, TPM
prevents local
download)Consumer goes to
streaming website
iTunes TPM-
free song: $.99
Market for paid
music undermined
Digital Distributors
Why the TPM Restrictions in the ExceptionsAre Necessary
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Software/Games
TPM-free: $50
TPM allowing
program installed on
only 5 computers:
$20
5-day trial version
(TPM deletes
program after 5
days): free Consumer
downloads free trial
Market for non-trial
version of software
undermined
End-userDigital Distributors
Circumvent TPM
under format shift
exception
Why the TPM Restrictions in the ExceptionsAre Necessary
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Are private copying exceptions user rightsthat trump legal protection for TPMs? User rights under copyright do not transfer the copyright in a work to the buyer of a
work. There may be ownership or a right to use the copy, but not transfer of the
copyright.
The creation of an exception for private copying does not as a matter of law create any
user right that trumps authors rights.
private copying does not constitute a right but a legal exception to the principle
prohibiting any integral or partial reproduction of a protected work without the consent of
the holder of the copyright The Mulholland Drive case, France Cour de Cassation, 19
juin 2008.
UFC-Que Choisir v Perquin, Paris, Court of Appeal, 4 April, 2007, private copyingmay
be raised as a defence in proceedings - especially proceedings for copyright
infringement - but it cannot be claimed as constituting a right on which to found a
principal claim having regard to the no right, no action precept, regardless of theexistence of a private copying levy paid by consumers;
Test Achats v EMI Recorded Music Belgium et al Brussels Court of Appeal, September
9, 2005 (dismissing claim that use of TPMs on CDs infringe individuals rights under
the private copying exception).
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Do other jurisdictions permit an exception forprivate copying to trump TPMs?
EU Copyright Directive (2001/29/EC of the European Parliament and of theCouncil of 22 May 2001):
private copying is only permitted if it is subject to fair compensation,
e.g. a levy, Art 5.2(b)
a private copying exception must not violate the Berne Three Step
Test, Art.5
(5
) there is no exception that permits circumvention of TPMs to enable
private copying, Art 6(4)
Member States may take measures to enable certain private copying
where a rightsholder has not voluntarily done so, without preventing
rightsholders from limiting the number of copies, Art. 6(4); this
provision has never been used Member States cannot take measures to enable private copying for
works or other subject-matter made available to the public on agreed
contractual terms in such a way that members of the public may
access them from a place and at a time individually chosen by them.
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Would an exception for private copying that permits circumventing
TPMs violate the Berne Three Step Test?
Mulholland Drive, France Supreme Court, 28 February 2006: An exception for privatecopying that prevents copyright holders from using TPMs to prevent that copying in the
digital environment would violate the Berne Three Step Test:
Whereas, according to Article 9.2 of the Berne Convention, the reproduction of literary
and artistic works protected by copyright can be permitted, in certain special cases,
provided that such reproduction does not conflict with a normal exploitation of the work
nor cause an unreasonable prejudice to the legitimate interests of the author; that the
private copy exception provided for in Articles L. 122-5 and L. 211-3 of the IntellectualProperty Code, which must be interpreted in the light of the European Directive citedabove, cannot form an obstacle to the insertion in the carriers onto which a protected work
is reproduced, of technical protection measures intended to prevent the copying of [that
work], when it would result in a conflict with the normal exploitation of the work, which
must be assessed by taking into account the economic impact that such a copying can
have in the context of the digital environment
That in ruling as it did, whereas the conflict with the normal exploitation of the work, whichshould lead to the setting aside of the private copying exception, must be assessed inlight of the risks inherent in the new digital environment as regards the safeguarding of
copyright and of the economic importance that the exploitation of the work, in the form of
DVD, represents for the recovery of the costs of cinematographic production, the Court of
Appeal violated the legislative texts cited above;
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Would an exception for private copying that permits circumventing
TPMs violate the Berne Three Step Test?
Henry et al v SA Warner Bros France Paris Commercial Court, 19September 2007:
In the absence of anti-copying devices, any individual with a DVD
and access to a player/recorder can make an unlimited number of
copies completely identical to the original. By providing copies
made in this way, even free of charge, to third parties, theseindividuals are liable to disturb the DVD market and as a result
lower the incomes of producers in an uncontrolled manner.
The court considers this risk to be sufficiently serous and
established to justify in law the presence of anti-copying devices
preventing identical reproduction.
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Can the WIPO Treaties be complied with by permittingcircumvention of TPMs for private copying?
an adequate, rather than more than sufficient, level of protection requiresappropriate norms to guarantee the applicability of exceptions to copyright
justified by relevant public interests; this, however, requires cautious regulation
duly balancing between the various interests and it cannot take the form ofsimply providing direct free access for any beneficiaries of any exceptions in
any possible format by eliminating the applicability of any kind of TPM
contrary to Prof. Geists allegation according to which the purpose of theapplication and protection of TPMs, and through it, the adequate protection and
normal exploitation of copyright, could be achieved also by allowing thecircumvention of TPMs for anybody in order to directly enjoy anyexception (for example, a private copy exception by each member of thehuge Internet population, and in fact anybody who wants at all a copy) or to
get access to works otherwise (for example, in order to receive freely any onlinecommunication of works citing the fact that such acts are not directly controlled
by copyright). Dr. Ficsor, TPMs AND FLEXIBILITY
How can protection for TPMs be adequate if a right of circumvention for
private copying would violate the Berne Three Step Test?
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Does Canada have any trading partners that have private copying,
no levy, and permit circumventing a TPM for private copying?
No country (including Switzerland or NewZealand) permit circumvention of a TPM forprivate copying without compensation, e.g.without a levy.
A solution that permits circumventing TPMs for
private copying would exacerbate the existing
problem of uncompensated private copying.
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