David Vaver is Professor of Intellectual Property Law at Osgoode Hall Law School, former Reuters Professor of Intellectual Property & Information Technology Law, University of Oxford and former Director of the Oxford Intellectual Property Research Centre
One among many contentious issues raised by the proposed copyright reforms in the Copyright Modernization Bill of 2010, Bill C-32, is the way the Bill cracks down on the circumvention of digital locks (so-called “technological protection measures” or TPMs) that prevent copying of or access to copyright subject-matter. The debate occurs at various levels:
-Should copyright owners employ such measures?
-If they do, what measures are acceptable, and should copyright owners use them for any purpose they wish (e.g., restricting imports or imposing resale price maintenance)?
-Should they inhibit users from exercising such rights as fair dealing and other specific rights the Copyright Act currently gives them or Bill C-32 proposes?
-Should users be allowed to crack digital locks that prevent the exercise of user rights?
Such questions may be discussed in terms of what good public policy demands, and how laws should be written to implement that policy. A preliminary question is, however, what measures are required by international law: can TPMs legitimately stop users from copying protected material without authority, or may they go further and stop users even from accessing that material in the first place. Copy control is less radical and contentious than access control, for a right to exclude access is a novelty in the copyright law and, indeed, may force legislatures to rely on any competence they have to implement treaties domestically rather than on their usual power to enact laws on “copyrights”: Stevens v KK Sony Computer Entertainment [2005] HCA 58 at [218].
The Canadian government has indicated its wish to accede to the WIPO Internet Treaties of 1996 – the WIPO Copyright Treaty and its companion WIPO Performances and Phonograms Treaty; so the question becomes what those treaties require in this respect.
Their language is not pellucid. It states that parties must “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures” that are used by authors, performers or phonogram producers “in connection with the exercise of their rights” under the WCT, WPPT or Berne Convention and that “restrict acts” in respect of their subject-matter that “are not authorized” by the authors, etc. or “permitted by law” (WCT art. 11; WPPT art. 18).
In a new s. 41, Bill C-32 proposes to implement both access and copy controls. It defines a TPM as “any effective technology, device or component that, in the ordinary course of its operation” (1) “controls access to” a work, sound recording or performance on it where the TPM’s use is authorized by the copyright owner, or (2) “restricts” copying or other rights the Copyright Act grants the copyright owner. It then proceeds to ban the use and distribution of circumvention devices and makes most of the new rights it proposes for users dependent on their not circumventing any TPM.
The WCT and WPPT both no doubt permit access- and copy-control TPMs but do they require states to implement access controls?
In a previous blog on this site, Dr Mihaly Ficsor, who has authored a leading text on the WIPO treaties, took the view that the Treaties require states to implement both forms of control but leaves them with some flexibility in the measures they use. In a recent book chapter, Professor Michael Geist from the University of Ottawa’s Faculty of Law has taken issue with Dr Ficsor’s view and claims the flexibility the WIPO Treaties give states to implement TPM measures does not compel the adoption of access control TPMs.
Dr Ficsor has now replied to Professor Geist’s views in a new paper entitled "TPMs and Flexibility ('The Ability of Bending Without Breaking') – Why Should the TPM Provisions of Bill C-32 Protect Access Controls and Prohibit 'Preparatory Acts'". The paper restates Dr Ficsor’s views that Bill C-32 correctly includes both forms of control in its TPM provisions and deals comprehensively with Professor Geist’s criticisms.
Both papers are clearly mandatory reading for whoever wants to get to the bottom of this question.