Many people remark about how similar Bill C-61 is to the USA's DMCA. While Industry Minister Jim Prentice claims that things like the time and device shifting are “made in Canada” (See: Made Worse in Canada (feat. Jim Prentice)), these types of changes were unnecessary in the USA with their many decades old living Fair Use regime. This living Fair Use regime makes US law already far more balanced than Canadian law. If we want to do things right we should drop those excessively limited provisions from the bill, and instead adopt a living Fair Use regime similar to the one in the USA.As a technical person, my focus is of course on technological measures which is entirely about what software citizens are and are not allowed to run on their own computers.The USA DMCA (Bill Number H.R.2281 for the 105th Congress, under Bill Clinton) uses the following language to describe a technological measure:“(3) As used in this subsection–`(A) to `circumvent a technological measure' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and`(B) a technological measure `effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.”(2) As used in this subsection–`(A) to `circumvent protection afforded by a technological measure' means avoiding, bypassing, removing, deactivating, or otherwise impairing a technological measure; and`(B) a technological measure `effectively protects a right of a copyright owner under this title' if the measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the exercise of a right of a copyright owner under this title.”The Conservative Government's Bill C-61 uses the following language:““circumvent” means,(a) in respect of a technological measure within the meaning of paragraph (a) of the definition “technological measure”, to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological measure, unless done with the authority of the copyright owner; and(b) in respect of a technological measure within the meaning of paragraph (b) of the definition “technological measure”, to avoid, bypass, remove, deactivate or impair the technological measure.“technological measure” means any effective technology, device or component that, in the ordinary course of its operation,(a) controls access to a work, to a performer’s 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 performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19.”While the language is grouped differently, the meaning appears to be the same. As I noticed after being asked about it, they create two classes of technological measures.

  • An “access control” technological measure which requires the authority of the copyright owner. Under C-61 it is clear that an access control that was added without the authority of the copyright owner is not legally protected, and that the copyright owner always has the right to authorize you to bypass this type of technological measure. As discussed in “(Digital) Locks are multipurpose tools, and can be used or abused“, these could include encrypted content which amounts to a new “access right” for copyright holders, as well as generic e-commerce sites.
  • A “use control” technological measure which does not seem to be tied to the authority of a copyright holder, and seems to not relate to copyright holders.

In section 41.1 of Bill C-61 (like the USA DMCA) it suggests that there is a prohibition against anyone circumventing an “access control”. The prohibition against circumventing a “use control” seems to be aimed only at service providers, manufacturers and importers. This difference has no practical meaning, given most people don't have the technical skills to bypass an inappropriate use control without help (from a service provider, manufacturer, software author, importer, etc).In my “4 things” (OpenDocument, PDF) presentation for understanding technological meausres, I try to encourage people to think about what a given technological measure is being applied to, as well as the various owners involved.The activities which copyright regulates (“any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19”) are activities which one would carry out with hardware, under the instructions of software. Any technology that “restricts the doing” of one of the activities which copyright regulates requires control over the hardware, meaning a restriction of what software can be executed.This appears to suggest that for “use controls” we are talking about technical measures applied to hardware and software, and not measures applied to copyrighted works.Politicians like to claim that Copyright is a balance between the interests of copyright holders and the rights of users (Well, they flip the rights and interests part). The question is, where do the device manufacturers and software authors of these “use controls” which seem to be given this new legal protection come?This seems to be new rights granted to a third party which in theory (but not in practise, as I often write about) can benefit copyright holders. There are many third party products and services which can help copyright holders, from banking services to the electricity company, and yet we do not grant legal protection for these services in the Copyright Act. What makes these specific providers of services to copyright holders special?I am always reminded of University of Ottawa law professor Jeremy F. Debeer's paper Constitutional Jurisdiction Over Paracopyright Laws. Even if granting legal protection for these types of products and services used by copyright holders is deemed to be a good idea, why it this legal protection being added to the Federal Copyright Act and not the appropriate provincial law governing contracts, consumer protection, e-commerce, and the regulation of classic property. I believe that by making this controversial change in Copyright law, appropriate provincial policy makers who need to be involved are incorrectly thinking that what was being legislated was solely (or even primarily) about Copyright.I apologize for all the uses of the phrase “it seems” in this article. While Bill C-61 is mostly a mildly reworded version of the USA DMCA which was passed into law on October 28, 1998, the meaning of the DMCA is still largely untested in court nearly a decade later. Even as US citizens find out how their courts will interpret their flawed law, Canadians can't assume that Canadian courts will rule the same way. US law and Canadian law did not have the same starting point. The USA's living fair use regime (common law until it was incorporated in Copyright in 1976) is one obvious example where Canada is less balanced than US law, and thus where perfectly legitimate activities may be legal in the USA under their DMCA but illegal in Canada under Bill C-61.We should remember that Bill C-61 really is a “made worse in Canada” bill given our starting point of being tilted more towards past copyright holders compared to US law.



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