Change the Digital Locks: Tory Law Is Too Tight

Counterfeiting treaty conclusion leaves flexibility for made-in-Canada approach.

By Michael Geist 12 Oct 2010 |

Michael Geist, whose column on digital policy and law runs every Tuesday on The Tyee, holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at or online at

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Negotiations on the Anti-Counterfeiting Trade Agreement concluded earlier this month, with Canada, the United States, the European Union and a handful of other countries releasing the text of a near-complete agreement. While several key issues are still unresolved, no further negotiation rounds are planned, as participants plan to use the coming weeks to iron out the remaining differences.

For many Canadians, a core concern with the agreement was the possibility that it could severely limit the ability to establish a made-in-Canada approach on copyright and intellectual property policy. Indeed, NDP digital affairs critic Charlie Angus raised the issue in the House of Commons last year, noting that ACTA could undermine domestic policy.

Industry Minister Tony Clement responded by assuring Canadians that "the ACTA negotiations are in fact subservient to any legislation that is put forward in the House." Clement's response was certainly true as a legal matter, yet from a practical perspective there was little doubt that any new Canadian legislation would be designed to be ACTA compliant.

When Clement and Canadian Heritage Minister James Moore introduced Bill C-32, the Canadian copyright bill, last June, it seemed likely that compliance with ACTA was one of the unstated goals. In fact, C-32's digital lock provisions, which education, consumer and business groups have criticized as being unnecessarily restrictive, may have been crafted with ACTA in mind.

Time to revise Bill C-32

With ACTA now public and near complete, Canadian officials may want to revisit C-32's approach. While the U.S. initially envisioned using ACTA to export its digital lock legal system to other countries, the final results are far more flexible requirements. The result is a Canadian bill that is much more restrictive than ACTA mandates and one that could be easily amended to address public concerns and still be compliant with the new treaty.

Both Bill C-32 and the early ACTA drafts adopted a restrictive approach to digital locks that effectively required broad legal protection against virtually any attempt to circumvent technological protection measures (often referred to as picking a digital lock). These restrictions extend well beyond instances where someone may be engaged in commercial copyright infringement and include consumers seeking to access foreign-bought DVDs, making a backup copy of an e-book, transferring music from a copy-protected CD to their iPod, or jailbreaking a cellphone to install software programs of their choice.

The near-final ACTA is much more flexible, however. It now requires "adequate legal protection and effective legal remedies" against circumventing digital locks, but references to access controls, such as those used on DVDs, have been removed. Moreover, ACTA now expressly permits a broad range of exceptions, including standard limitations to copyright such as fair use.

Pressure building to emulate other nations

The flexible approach to digital locks within ACTA is consistent with the laws in many ACTA countries. For example, Switzerland and New Zealand permit circumvention of digital locks for legal purposes, Denmark and Japan apply their rules solely to copy-controls (access controls are excluded), and Italy permits circumvention for personal use in some circumstances. In fact, given recent changes in U.S. law that allow circumvention of DVDs for some non-commercial purposes and the jailbreaking of cellphones, Bill C-32 would establish one of the most restrictive, anti-consumer digital lock rules in the world.

The pressure to amend Bill C-32's digital lock rules has been building -- all three opposition parties have voiced support for doing so -- and now the conclusion of the ACTA negotiations provides yet another reason for striking a new balance that provides legal protection for digital locks and ensures that consumer rights are not eliminated in the process.  [Tyee]

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