While copyright owners claim that they need anti-circumvention laws to address copyright infringement, twelve years’ experience with the U.S. DMCA provisions demonstrates that overbroad digital locks laws can wreak havoc on lawful, non copyright-infringing activities, stifle free speech and scientific research, and harm innovation and competition. The issue is that overbroad anti-circumvention bans can override exceptions and limitations in national copyright laws, restricting or eliminating perfectly lawful non-copyright infringing uses of copyrighted works.
Small wonder that a broad range of groups in Canada have come out against the unforgiving nature of these provisions in Canada’s C-11 Bill, including librarians, content creators, rights advocates and others. We’ve been documenting the collateral damage caused by the US’s overbroad DMCA provisions in our unintended consequences [pdf] report over more than ten years. Now Canada has a chance to avoid repeating the U.S.’s mistakes.
Here are some of the areas in which Bill C-11’s digital locks provisions are likely to be problematic:
Like the U.S. DMCA, C-11 prohibits the act of circumventing a TPM and bans the circumvention tools, devices, and services that citizens would need to circumvent for non-infringing purposes. As a result the digital locks provisions in C-11 will supersede all user rights found in the Copyright Act except for in a few narrowly defined exceptions. This lets rights holders turn acts that are legal into illegal ones with the simple addition of a lock. In the U.S. for instance, many consumers want to make a copy of DVDs that they’ve purchased for personal use on their mobile devices, but the DMCA outlaws the tools needed to break DVDs’ DRM. Major movie studios have sued numerous DVD ripping software manufacturers using the DMCA to remove the tools from the marketplace.
Though C-11 has some exemptions for circumvention for certain purposes, they do not go far enough to accommodate all the legitimate and non-infringing reasons for breaking these locks. The existing exceptions are far too narrow and have become outdated even before the legislation could be passed. An exception exists, for example, permitting users to bypass locks on mobile devices (e.g. cell phones) in order to change service providers. However, bypassing those same locks in order to install an un-approved application (jailbreaking) might be illegal. A general process exists for adding new exceptions, but relying on examples means, at best, that exceptions will always be 10 steps behind legitimate uses. This lag in recognizing new services and uses could very well stifle innovative products out of existence altogether.
Innovation and Creativity
Digital locks provisions can make it illegal for innovators, creators, and artists to take apart and understand how a product works or to transform content. People learn to create new products and works of art by taking things apart. With the growing importance of user-generated content, we are becoming a “society of remixers and tinkerers”. Even though remixing and reusing is often 'fair use/dealing' [pdf] and not a violation of copyright, C-11 would prevent individuals from circumventing a digital lock in order to create a remix. Individuals must be free to use what they have to experiment with their ideas and engage their curiosity.
C-11 includes an exception [pdf] that allows circumvention for the purposes of protecting personal information, but most of the technologies that allow people to do so remain illegal. Someone can develop a method or device to break a digital lock to gain access to data, but that method cannot be shared. Therefore, such an exception does little to give users and consumers the ability to protect themselves from possible privacy violations by these companies.
Anti-circumvention measures directly impact [pdf] scholarly research and independent analysis. In applying for grants for example, researchers may lose or not even receive funding when they go under the legal examination of their project if it necessitates the circumvention of digital locks. Additionally, while C-11 contains exemptions for security researchers, it still requires them to inform the target product-maker of their plan or get prior consent from the service provider. This consent requirement can force them to sacrifice discretion or deter their efforts altogether.
Education and Access to Knowledge
Libraries and schools will be limited in their ability to provide content to their members and students. Libraries will be prevented from backing up resources and creating digital archives, while educational institutes will be prevented from using many education-specific copyright exceptions by the presence of a lock. Not only would it be a drain of resources for these institutions to have to do so, it harms their ability to have access to crucial learning resources.
Visual and Hearing Impaired
Unlike the US DMCA which does not have a permanent exception for circumvention to provide access to the visually impaired, Canada’s C-11 includes a limited exception permitting circumvention for those with perceptual difficulties. In the same way that the exception for privacy protection essentially renders itself moot, the law could legalize circumvention while keeping the distribution or sharing of most of those tools illegal. If those with perceptual disabilities want access to their content, it seems that they would need to have the know-how to create tools to circumvent the measures themselves, or otherwise face charges for using or distributing tools that allow other impaired individuals to do the same.
It doesn’t have to be this way
There are several changes to C-11’s digital locks provisions that would go a long way to avoiding the pitfalls of the U.S. experience and would allow Canada to implement a law that complies with the WIPO treaties. First, C-11 should make it clear that it’s lawful to circumvent TPMs to make non-infringing uses of works. In other words, legal protection for copyright holders’ TPMs should follow the scope of national copyright laws but go no further. Second, if it regulates the manufacture and distribution of circumvention tools, C-11 should permit trusted third party intermediaries, such as educational institutions and libraries, to be authorized to circumvent to give effect to existing copyright exceptions, as New Zealand’s TPM law does. Third, C-11 should include provisions to prevent TPMs being used for non-copyright infringing geographic market segmentation and to address possible anti-competitive misuse of TPMs as Australia’s revised TPM law does.
If you live in Canada or are a Canadian citizen, you can take the following action:
- Open Media - No Internet Lock-Down
- Canadian Coalition for Electronic Rights - Speak Out Now on Copyright
If you live in the United States or are a U.S. citizen, you can take the following action:
- Public Knowledge’s letter writing campaign to US Trade Representative, Ambassador Ron Kirk - Act Now : Tell the US Trade Rep: You Don't Work for Big Content