Tracy Ayodele is a JD candidate at Osgoode Hall Law School and currently enrolled in the course Law & Social Change: Law & Music, in Winter 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice.

Former Bill C-32’s introduction of provisions regarding “digital locks” or “technological protection measures” (TPMs) provoked an array of oppositional responses ranging from wholehearted disapproval to cautioned acceptance.  The proposed TPM provisions prohibited users from circumventing or hacking around digital locks, while providing legal remedies for rights holders of circumvented locks. This post will discuss arguments both for and against these provisions.

It has been argued that in order for Canada to be in compliance with the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, digital locks require protection. Canada is a signatory to these treaties, but has yet ratify them, hence the proposed amendments to the Copyright Act in the now dead Bill C-32, which attempted to bring Canada in compliance with the WIPO requirements.  Key among the reforms that would need to be made are the enactment of an anti-circumvention law that provides “adequate legal protection and effective legal remedies” for rights holders using digital locks to protect content and “adequate and effective legal remedies” for the altering or removal of rights management information and subsequent distribution and copying.  Such provisions are necessary for Canada to fulfill its obligations to the international community.

It was argued that “Made in Canada” copyright legislation that provided exceptions for private purposes would not run contrary to the WIPO treaties. Critics of the digital lock provisions argued that the language of the treaties expressly allowed for signatory countries to extend limitations and exceptions in their national laws in such a way that is appropriate in the digital network environment. Therefore, allowing for such an exception satisfied Canada’s obligation to the international community, while reconciling the frustrations of consumers, who want to use their legally-obtained products, with that of rights holders, who want adequate protections for their work.  Other legal scholars refuted this interpretation of the treaties.

Critics of Bill C-32’s digital lock provisions acknowledged the government’s attempt, in a number of areas, to attain some semblance of balance between the copyright holder and the consumer. However, critics argued that reforms surrounding fair dealing rights under Bill C-32 were undermined if a digital lock was used. Under Bill C-32, certain digital content would not be able to be backed up, moved to a different device, or transcoded to an alternative format, if doing so would require the breaking of the lock placed on it.  It was contended that a compromise provision that satisfied compliance with international treaties, protected digital locks, and preserved the copyright balance, should pioneer reforms since the prohibition of circumvention would harm those possessing rights to access their media.

Furthermore, it was also contended that the provision would prevent consumers from using devices of their choosing when attempting to use locked content.  Digital Rights Management (DRM) and digital locks restrict media to an approved platform. Therefore, consumers who purchase content afflicted with DRM are forced to use/purchase the approved platform or bypass these provisions, thus breaking the law.  If the proposed Bill had passed and it had become illegal to circumvent digital locks in an attempt to play a DVD purchased legally overseas or to listen to music downloaded from iTunes on an MP3 player, there could have been less respect for the law and a greater pull towards pirated content without locks.

Proponents of Bill-C32 contended that such concerns were not necessary since the statutory damages provisions were amended to deter a rights holder from bringing forth an infringement action for private use.  Section 46 of Bill C-32 altered the statutory damages provisions in order to differentiate infringements for commercial purposes (with damages ranging from $500 to $20,000 per circumvented lock) from infringements for non-commercial purposes (with damages ranging from $100 to $5,000 per circumvented lock). Infringements for private purposes were made less punitive.  Furthermore, under section 41.1(3) of Bill C-32, statutory damages would not be available to rights holders suing for the breaking of digital locks done so for private purposes. Damages are to put a rights holder in the position they would have been in had the infringement not occurred; and in the case of private infringements (e.g., back-up copies) these damages are generally seen to be negligible. It was rationalized that without the prospect of attaining statutory damages, the likelihood of a rights holder attempting to enforce a violation would be greatly diminished since the expense of recovering damages would greatly exceed the amount of actual damages.

For the third time in six years, Canada’s latest attempt to reform its outdated copyright law has been rendered futile with the fall of the Harper government.  Critics may silently rejoice; however, Canadian copyright law is in dire need of reform.  While technology has revolutionalized the ways we consume and disseminate media, Canadian copyright law has remained stagnant and misaligned with the aspirations of numerous signatories of international treaties. Perhaps Canada’s next attempt at updating its copyright legislation will take into account the widely voiced concerns over Bill C-32.