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#9716304 Bill C-3 2 ± Impacts on the IT Community The 14 th  Annual IT.Can Conference October 28-29, 2010 Barry B. Sookman Direct Line: (416) 601-7949 E-Mail: [email protected]ccarthy. ca

Sookman ITCAN October 2010 Slides

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    Bill C-32 Impacts on the IT CommunityThe 14thAnnual IT.Can ConferenceOctober 28-29, 2010

    Barry B. Sookman

    Direct Line: (416)601-7949

    E-Mail: [email protected]

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    22Overview of Presentation

    Sections of Bill C-32 that will be covered:

    New exceptions to foster innovation (30.61-63)

    Computer program interoperability

    Encryption research

    Computer and network security assessment Temporary reproductions for technological processes (30.71)

    New private use exceptions (s.29.21-24)

    User generated content exception

    Format shifting exception

    Back-up copy exception

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    33

    Government Backgrounder: Clear copyright rules to

    encourage innovation. For technology companies, the

    bill will include measures to enable activities related to

    reverse engineering for software interoperability,security testing and encryption research, including the

    circumvention ofTPMs for these purposes.

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    44Interoperability of computer programs30.61 It is not aninfringement of copyrightin a computer program fora person who owns acopy of the computerprogram that isauthorized by the ownerof the copyright, or has alicence to use a copy ofthe computer program, toreproduce the copy forthe sole purpose ofobtaining information thatwould allow the person to

    make the program andany other computerprogram interoperable.

    Article 6(1) of the EC Copyright Directive.

    Decompilation 1. The authorization of the rightholder shall not berequired where reproduction of the code and translation of its form

    within the meaning of Article 4 (a) and (b) are indispensable to obtain

    the information necessary to achieve the interoperability of an

    independently created computer program with other programs,

    provided that the following conditions are met: (a) these acts are

    performed by the licensee or by another person having a right to use a

    copy of a program, or on their behalf by a person authorized to do so;

    (b) the information necessary to achieve interoperability has not

    previously been readily available to the persons referred to in

    subparagraph (a); and (c) these acts are confined to the parts of the

    original program which are necessary to achieve interoperability. 2.

    The provisions of paragraph 1 shall not permit the information obtained

    through its application: (a) to be used for goals other than to achieve

    the interoperability of the independently created computer program; (b)

    to be given to others, except when necessary for the interoperability of

    the independently created computer program; or (c) to be used for the

    development, production or marketing of a computer programsubstantially similar in its expression, or for any other act which

    infringes copyright. 3. In accordance with the provisions of the Berne

    Convention for the protection of Literary and Artistic Works, the

    provisions of this Article may not be interpreted in such a way as toallow its application to be used in a manner which unreasonably

    prejudices the right holder's legitimate interests or conflicts with a

    normal exploitation of the computer program. (emphasis added)

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    66Computer and Network Security Assessment

    s.30.63 It is not an infringementof copyright for a person toreproduce a work or othersubject-matter for the solepurpose, with the consent ofthe owner or administrator of acomputer, computer system orcomputer network, of assessing

    the vulnerability of thecomputer, system or network orof correcting any security flaws.

    Is the section needed for fair security assessments?

    Is the section limited to ethical hacking or does it

    permit any manner of assessing the vulnerability of

    devices or for correcting any security flaws.

    Could the exception enable reverse engineering of

    encryption systems for the purposes of hacking ITnetworks and systems?

    Whos consent would be needed in order to carry out

    the vulnerability assessment? Is this consistent with

    the intent of the encryption research exception?

    Does the section have the potential to be misused toenable hackers to undermine security systems?

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    77Temporary Reproductions for Technological Processes

    s.30.71It is not aninfringement of copyright tomake a reproduction of awork or other subject-matterif

    (a) the reproduction formsan essential part of atechnological process;

    (b) the reproductions onlypurpose is to facilitate a usethat is not an infringement ofcopyright; and

    (c) the reproduction existsonly for the duration of thetechnological process.

    Article 5 of the EU Copyright Directive

    Temporary acts of reproduction which are transient

    or incidental [and] an integral and essential part of a

    technological process and whose sole purpose is to

    enable: a) a transmission in a network between third

    parties by an intermediary, or (b) a lawful use of a

    work or other subject-matter to be made, and which

    have no independent economic significance, shall be

    exempted from the reproduction right provided for in

    Article 2. (emphasis added)

    Would the section have unintended consequences?

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    88Non-commercial user-generated content (UGC)exception

    Industry Canada Fact Sheet: The new bill permits the use of legitimatelyacquired material in user-generated content created for non-commercialpurposes.

    29.21(1) It is not an infringement ofcopyright for an individual to use anexisting work or other subject-matteror copy of one, which has been

    published or otherwise madeavailable to the public, in the creationof a new work or other subject-matter in which copyright subsistsand for the individual or, with theindividuals authorization, a memberof their household to use the newwork or other subject-matter or toauthorize an intermediary todisseminate it, if

    (a) the use of, or the authorization todisseminate, the new work or othersubject-matter is done solely for non-commercial purposes;

    (b) the source and, if given in the source, thename of the author, performer, maker orbroadcaster of the existing work or other

    subject-matter or copy of it are mentioned, if it isreasonable in the circumstances to do so;

    (c) the individual had reasonable grounds tobelieve that the existing work or other subject-matter or copy of it, as the case may be, was notinfringing copyright; and

    (d) the use of, or the authorization to disseminate,the new work or other subject-matter does not

    have a substantial adverse effect, financial orotherwise, on the exploitation or potentialexploitation of the existing work or other subject-matter or copy of it or on an existing orpotential market for it, including that the newwork or other subject-matter is not a substitutefor the existing one.

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    99Non-commercial user-generated content (UGC)exception

    Could the exception permit individuals to create derivative works orport computer programs to run under other operating systems orplatforms and to upload the modified code onto the Internet?

    Would the section permit reverse engineering or decompiling ofcomputer programs, modifying them and uploading the modified

    software onto the Internet? Would the exception would apply even if the person does not own or

    have a license to use the software?

    Could an individual reverse engineer software in violation of a EULAor other agreement including terms prohibiting reverse engineering?

    Could an individual reproduce and modify corporate logos and usethem in disparaging ways? Would a company have any remedy?

    Could an individual reproduce and modify entire websites ordatabases? Would a company have any remedy?

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    1010Would the UGC exception undermine open sourcelicensing models?

    Under the UGC exception, could software developers make modification to opensource software and distribute these without respecting the licensing terms and withoutinfringing copyright?

    Copyleft open-source licenses often require modifications that are published inexecutable format also publish the source code of the modification.

    Would the UGC exception allow publication and distribution of open source code

    without adhering to open source licensing conditions thus undermining use of copyrightto protect open source licensing models? See, Jacobsen v. Katzer535F.3d 1373(Fed. Cir. 2008)

    User-Generated Content Exception (s.29.21) conditions:

    Done for non-commercial purposes

    Source of work is mentioned

    Non-infringing source material

    Use of work does not have substantial adverse effect onmarket of source material (source material is free)

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    1111Reproduction for private purposes (format shifting)

    Industry Canada FAQ: The bill will allow "format shifting.

    29.22 (1) It is not an infringement of copyright foran individual to reproduce a work or other subject-matter or any substantial part of a work or othersubject-matter if

    (a) the copy of the work or other subject-matterfrom which the reproduction is made is not an

    infringing copy;(b) the individual legally obtained the copy of thework or other subject-matter from which thereproduction is made, other than by borrowing itor renting it, and owns or is authorized to use themedium or device on which it is reproduced;

    (c) the individual, in order to make thereproduction, did not circumvent, as defined insection 41, a technological protection measure, as

    defined in that section, or cause one to becircumvented;

    (d) the individual does not give the reproductionaway; and

    (e) the reproduction is used only for privatepurposes.

    (2) For the purposes of paragraph (1)(b), amedium or device includes digital memoryin which a work or subject-matter may bestored for the purpose of allowing thetelecommunication of the work or othersubject-matter through the Internet orother digital network.

    (4) Subsection (1) does not apply if theindividual gives away, rents or sells thecopy of the work or other subject-matterfrom which the reproduction is madewithout first destroying all reproductions ofthat copy that the individual has madeunder that subsection.

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    1212Format Shifting Exception

    Would the exception permit individuals to copy software for any privatepurpose?

    Would the exception permit individuals to reverse engineer software?

    Would the exception would permit individuals to make copies of software in

    violation of an EULA?

    Would the exception apply to individuals who legally obtain softwareproducts, but do not own or license the software?

    Would the exception permit an individual to copy someone elses library of

    computer programs by accessing his/her computer?

    Would the exception permit an individual to make copies of his/her library of

    computer programs for another person?

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    1313Backup copying (s.29.24)

    Industry CanadaFact Sheet:

    Backup

    copying: Allows

    consumers,

    businesses andinstitutions to make

    backup copies of

    legally acquired

    content to protectagainst damage or

    loss.

    29.24 (1) It is not an infringement of copyright in a work

    or other subject-matter for a person who owns or has alicense to use a copy of the work or subject-matter (inthis section referred to as the source copy) to reproducethe source copy if

    (a) the person does so solely for backup purposes in casethe source copy is lost, damaged or otherwise renderedunusable;

    (b) the source copy is not an infringing copy;

    (c) the person, in order to make the reproduction, did notcircumvent, as defined in section 41, a technologicalprotection measure, as defined in that section, or causeone to be circumvented; and

    (d) the person does not give any of the reproductionsaway.

    (2) If the source copy is lost, damaged or otherwiserendered unusable, one of the reproductions made undersubsection (1) becomes the source copy.

    (3) The person shall immediately destroy allreproductions made under subsection (1) after the personceases to own, or to have a licence to use, the sourcecopy.

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    1414Computer Programs

    Is there an overlapwith the UGC or

    format shifting

    exceptions?

    Why have two back-up exceptions for

    computer programs?

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    1515

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