Sookman ITCAN October 2010 Slides

8/8/2019 Sookman ITCAN October 2010 Slides

http://slidepdf.com/reader/full/sookman-itcan-october-2010-slides 1/15

#9716304

Bill C-32 ± Impacts on the IT Community The 14th Annual IT.Can ConferenceOctober 28-29, 2010

Barry B. Sookman

Direct Line: (416) 601-7949

E-Mail: [email protected]



#9716304

22Over view of Presentation

¬ Sections of Bill C-32 that will be covered:

¬ New exceptions to foster ³innovation´ (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



#9716304

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 of TPMs for these purposes.



#9716304

44Interoperability of computer programs30.61 It is not an

infringement of copyrightin a computer program for a person who owns acopy of the computer program that isauthorized by the owner of the copyright, or has alicence to use a copy of the computer program, toreproduce the copy for the sole purpose of obtaining information thatwould allow the person to

make the program andany other computer program interoperable.

Article 6(1) of the EC Copyright Directive.

³Decompilation 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)





#9716304

66Computer and Network Security Assessment

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

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

Is the section needed for ³fair´ security assessments?

Is the section limited to ³ethical hacking´ or does it

permit any manner of ³assessing the vulnerability´ of

devices or for correcting any security flaws´.

Could the exception enable reverse engineering of

encryption systems for the purposes of hacking IT networks and systems?

Who¶s 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?



#9716304

77Temporary Reproductions for Technological Processes

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

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

(b) the reproduction¶s onlypurpose is to facilitate a usethat is not an infringement of copyright; and

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

Article 5 of the EU Copyright Directive

³Temporary 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?



#9716304

88³Non-commercial´ ³user-generated content´ (UGC)exception

Industry Canada Fact Sheet: ³The new bill permits the use of legitimatelyacquired material in user -generated content created for non-commercialpurposes.

29.21(1) It is not an infringement of copyright 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 ² or, with theindividual¶s authorization, a memberof their household ² 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 ² and, if given in the source, thename of the author, performer, maker orbroadcaster ² 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 ² or copy of it ² or on an existing orpotential market for it, including that the newwork or other subject-matter is not a substitutefor the existing one.



#9716304

99³Non-commercial´ ³user-generated content´ (UGC)exception

¬ Could the exception permit individuals to create derivative works or port computer programs to run under other operating systems or platforms and to upload the modified code onto the Internet?

¬ Would the section permit reverse engineering or decompiling of computer 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 or databases? Would a company have any remedy?



#9716304

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, J acobsen v. Katzer 535 F.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)



#9716304

1111Reproduction for private purposes (format shifting)

Industry Canada F AQ: ³The 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), a ³medium 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 of that copy that the individual has madeunder that subsection.



#9716304

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 else¶s 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?



#9716304

1313Backup copying (s.29.24)

Industry CanadaFact Sheet:

³Backup

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 ² or has alicense to use ² a copy of the work or subject-matter (inthis section referred to as the ³source 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.



#9716304

1414Computer Programs

¬Is there an overlapwith the UGC or

format shifting

exceptions?

¬Why have two back-up exceptions for

computer programs?



#9716304

1515

VANCOUVERSuite 1300, 777 Dunsmuir Street

P.O. Box 10424, Pacific CentreVancouver BC V7Y 1K2

Tel: 604-643-7100

Fax: 604-643-7900

Toll-Free: 1-877-244-7711

CALGARYSuite 3300, 421 7th Avenue SW

Calgary AB T2P 4K9

Tel: 403-260-3500

Fax: 403-260-3501

Toll-Free: 1-877-244-7711

TORONTOBox 48, Suite 5300

Toronto Dominion Bank Tower

Toronto ON M5K 1E6

Tel: 416-362-1812

Fax: 416-868-0673

Toll-Free: 1-877-244-7711

OTTAWASuite 200, 440 Laurier Avenue West

Ottawa ON K1R 7X6Tel: 613-238-2000

Fax: 613-563-9386

Toll-Free: 1-877-244-7711

MONTRÉALSuite 2500

1000 De La Gauchetière Street WestMontréal QC H3B 0 A2

Tel: 514-397-4100

Fax: 514-875-6246

Toll-Free: 1-877-244-7711

QUÉBECLe Complexe St- Amable

1150, rue de Claire-Fontaine, 7e étage

Québec QC G1R 5G4

Tel: 418-521-3000

Fax: 418-521-3099

Toll-Free: 1-877-244-7711

UNITED KINGDOM & EUROPE125 Old Broad Street, 26th Floor

London EC2N 1 AR

UNITED KINGDOM

Tel: +44 (0)20 7489 5700

Fax: +44 (0)20 7489 5777

Documents

Sookman ITCAN October 2010 Slides