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  HCA 58 at .
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.
Wonderful to hear from you again on the Canadian debate. So – in your opinion, how would you evaluate Geist v. Ficsor on this question?
Thank you Professor Vaver for offering these contrasting viewpoints. My thoughts here:
-Although it’s best to avoid ad hominem arguments, one must consider the source of these analyses. Geist’s analysis of the Treaties and the events surrounding their genesis lead him to conclude that the Treaties allow for an implementation that he’s been pushing for over 5 years. While I don’t suggest it wasn’t a thorough analysis, it does appear as though he was seeking to reach this conclusion from the start. This type of research will often lead the researcher to come to the pre-formed conclusion since supportive evidence will always be favoured while contradicting evidence more easily dismissed.
-Dr. Ficsor, however, has no such pre-disposition. As a key author of the Treaties themselves, he has had the benefit on overseeing their implementation in scores of other nations. Neither does he stand to benefit either way from Canada’s implementation of the Treaties. His interest in the Canadian experience with Bill C-32 is purely academic. Indeed, the articles he has written in response to Geist have all been with the goal of correcting Geist’s interpretation of the Treaties rather than pushing for a particular model to be adopted.
-Geist’s favoured approach to TPM protection strikes me as extremely minimalist. Requiring proof of an infringing purpose for TPM circumvention virtually eliminates any benefits of legal protection for TPMs. Even Geist admits that we are behind the pack when it comes to ratification of the WIPO Treaties. Why would we take 13 years to catch up, only to take a minimalist approach? It would be like catching up to the pack, only to still be at the bottom of it. As I wrote in my own article last month, there is ample precedent in Canadian law that prohibit circumventing protection technologies that do not require the establishment of an underlying offense:
[…] Digital locks, circumvention and the copyright reforms proposed by Bill C-32 (IP Osgoode) […]
It’s really funny to see how desperate Michael Geist can get when these copyright bills come around every few years: first the text of the treaty clearly doesn’t support his stance, next the official WIPO accompanying text of the treaties contradicts everything he says and then every other country that implements the treaties fail to follow his “interpretation”. Now, finally, the actual -AUTHOR- of the treaties comes out and tells him he’s wrong. I somehow doubt even that will sway him.
Here’s how I see his positions: no locks since they’re so offensive to consumers, no responsibilities on ISPs to curb piracy since they’re just innocent intermediaries charging bandwidth fees, no secondary liability on torrent sites because they’re just providing a “service”, no statutory damages because they’re disproportionate, more and broader exceptions in the name of “user rights” and of course no levies and tariffs since they hurt retailers and consumers. So how to creators actually make money? His latest position is government funding. What other option is left? That’s Geist’s endgame: a fully public-funded arts and culture, where the government decides who and what gets funding and everything is free. It’s worked for him and all his grant money after all.
I believe the phrase from Dr. Ficsor’s redige makes a good summary of the debate:
“if a certain interpretation makes a treaty provision meaningless, but another interpretation is available which makes it meaningful, that other interpretation should be chosen”
Dr. Geist says it can only be an infringement of tpm if it is an infringement of copyright. Is this meaningful? Should the trial of attempted murder require a proof of murder? In practice, this is not meaningful.
Good to hear from you too, Howard. I have not reached a final opinion, for what it’s worth, on who has the better argument. The points made need to be weighed on their merits. Both papers present substantial points and arguments. Neither should be judged by reference to some assumed bias or greater authority of one or other of their authors. I take both views as being honestly held by reputable lawyers, and so should those who read and assess the papers.
Prof. Vaver – I agree that the merits of an argument should be pre-eminent in assessing its strength. In reviewing both Dr. Ficsor’s and Dr. Geist’s arguments, it seems clear to me that Dr. Ficsor’s paper knocked down all of Prof. Geist’s key points. The following passage from Dr. Ficsor’s paper summarizes his arguments (which are supported in exhaustive detail):
It seems that the vehemently debated issues in connection with the TPM provisions of Bill C-32 are the questions of
I. whether it is a treaty obligation to protect both access-control and copy-control TPMs;
II. whether it is a treaty obligation to prohibit so-called “preparatory acts” (the manufacture and distribution of “protection-defeating devices,” etc.); and
III. whether circumvention should only be prohibited when it is linked to infringement.
Canada’s major trading partners have answered affirmatively the first two questions and negatively the third one. I submit, along with authoritative commentators, that – in view of the treaty provisions and their negotiation history – these are the correct answers. Prof. Geist’s views are just the contrary…. (End quote).
An important observation can be drawn from this: the academic arguments are just that – academic. Canada agreed to a set of rules when it signed the WIPO treaties, and must abide by them in a way that is consistent with the near-universal interpretation of those treaties by its trading partners. The reality “on the ground” is this: when Canada’s trading partners ratified WIPO, all of them provided legal protection to TPMs. Ergo, we must do the same.
As for your comments on assuming the bias of a writer or assessing his or her authority, I do not agree. If a writer has shown consistent bias in the past, is it not reasonable to at least be wary of bias creeping into that person’s current and future arguments? And is a person’s experience not valid, to an extent, in assessing how authoritative their opinion is?
My experience has been that it is better to judge a person’s reasoning on its merits than on what assumptions can be made, rightly or wrongly, about his or her world view and how far they may colour that reasoning. Consistent speeders sometimes slow down; slowcoach drivers sometimes speed up. One’s judgment of what speed they are doing now is not helped by knowing what speed they went on other occasions. If it is so helped, then the person judging the speed is himself open to a charge of bias.
I question the wisdom of citing Ficsor as a copyright authority. Ficsor is a WIPO apparatchik. Citing him is like citing an IDF official on the law of armed conflict. It is good to see, however, that the english in Ficsor’s article titles is as mangled as that in his prose.
Is this just a function of the fact that, besides McCarthy lawyers, no one else seems willing to argue the merits of a hegemonic TPM/DRM approach? I think it says a lot about how hopeless the TPM cause is: that it can’t even garner serious academic debate among detached interlocutors and has to rely on people with a vested interest in corporate servitude.
and yes, the TPM cause is hopeless, C-32 or not. It’s a matter of “you can’t stop us”. And woe to the corporations who think restricting access will result in consumers supinely purchasing their products when tpm/drm-free alternatives are only a bittorrent away.
I am not a lawyer (IANAL), but I am a technical person who tries to translate legal language into real-world scenarios. I have authored a FAQ on Bill C-32 partly to try to warn politicians, lawyers and other policy makers of the harm that will occur if we don’t include adequate technical analysis in the discussion of technology law.
I believe it is critical to repeat that “access” is a novel concept in copyright law, and that if access controls are given legal protection in copyright law we risk effectively creating an “opt out” of the contours of existing laws including contract, e-commerce, property, privacy, competition, consumer protection, trade and even copyright.
This is not to say that TPMs should not be given legal protection, but that legal protection should be added in the laws that regulate the relevant relationship. If TPMs are protecting contracting terms (including a copyright license agreement), then the protection should be in provincial contract law. If protecting an e-commerce translation, then provincial e-commerce law… and so-on.
Even if we do add TPM legislation to federal Copyright law (rather than only the other more appropriate laws), it should be done in a manner that remains as consistent with the subject matter of copyright law as possible. This suggests protection of use controls, not access controls.
I obviously disagree with James Gannon’s reverse-logic, given it appears that it is Mr. Ficsor that is looking to rewrite history to suggest that he won his arguments back in 1996. If Canada chooses to circumvent the traditional contours of copyright and other laws we do so as a choice, not as a requirement of the 1996 WIPO treaties. I also believe it is clear that even the US DMCA ties their legal protection for “access controls” far more tightly to activities regulated by copyright than C-32 does. (See Title 17, § 1201 (c) Other Rights, Etc., Not Affected)
If the locks provision were to pass into law I would no longer be able to legally watch my DVDs on my Linux HTPC.
This isn’t a copyright issue. Access controls allow one to create artificial limits that don’t have to have anything to do with copyright. To legally protect them from will provide legal protection to create artificial business models based on arbitrary business decisions that don’t have to have a basis on the public good. In fact, it will be at the expense of people like me who may wish to access media that I’ve paid for in way that would otherwise not be illegal at all. In addition, it will render most of the proposed fair dealing exceptions to be more or less worthless at the whim of the entity that applies the lock.
I will lose the right to circumvent locks on media that I already own. I have purchased media in the past knowing that I was allowed to circumvent whatever impediments existed to watching it. How do Canadians benefit from legal protections against circumvention where there will be nothing else illegal about it? Why should we lose our existing rights?
Why should artificial business models that don’t even exist naturally be more important than the right to do something reasonable or legal? Such as:
-watching DVDs on devices of my choice
-going from an iPod to a generic MP3 player
-going from a Kindle to a Kobo
-converting now obsolete HD-DVDs to a more useful format
-making my own Linux based media system or an all-in one-appliance to manage all my media without having a separate appliance for each format
Verticals are inherently dangerous to competition. DRM is inherently dangerous to interoperability and can be used to create artificial verticals because it acts to prevent free interoperability. Apple has a fairly successful (a business success, not a consumer success) vertical and DRM makes it difficult to leave the fold or go the the next great thing.
If circumvention for non-infringing purposes becomes protected by the passage of Bill C-32 as is, I will have lost something of tremendous value to me. I hope the beneficiaries of such a travesty will be required to compensate me. Expropriation without compensation seems extremely unjust.
Even given the current status quo, I don’t think the Competition Bureau has really looked at the implications of DRM. They really need to take a look at the implications of these proposed provisions.
Comments are closed.