Cases, Legislation and Proposed Legislation Considered: Bill C-61, An Act to Amend the Copyright Act, WIPO Copyright Treaty; Performances and Phonograms Treaty; Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34 ; CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13.
Bill C-61, An Act to Amend the Copyright Act, tabled in the House of Commons by Alberta MP Jim Prentice on June 12th, 2008, contains proposed amendments to the Copyright Act designed to allow Canada to implement and ratify the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (“Internet Treaties”). The centerpiece of the Bill is s. 41, which generally prohibits the circumvention of technological measures; that is, apart from a few narrow exceptions, it prohibits the unlocking of digital locks on content such as software, digitized music, digitized books and other protected subject matter, even for the purpose of exercising user rights recognized in the Copyright Act, such as fair dealing, and for some rights explicitly recognized in Bill C-61 (e.g. for time shifting or device shifting). Bill C-61 goes further still, generally prohibiting unlocking services and dealing in keys to allow the unlocking of digital locks on content. Unfortunately, such provisions are at odds with the idea that owners’ rights in protected subject matter should be balanced with users’ rights in that subject matter.
Given that digital locks are not smart enough to prevent only infringing activity, the only way that the exercise of users’ rights can be guaranteed is to provide for a general unlocking right for users. Although Bill C-61 provides a few limited unlocking rights, such as in police investigations, it does not provide for a general right to unlock digital locks in order to exercise a user right, nor does it generally allow unlocking services or dealing in keys in order to facilitate the exercise of user rights. Of course, these omissions reflect the worry of copyright owners that keys would be used to facilitate infringement of copyright rather than merely the exercise of a user right. Yet, the correlative concern exists for users with respect to the impact of a general prohibition against unlocking locks on their rights. In short, given a general prohibition against unlocking digital content, without the existence of a corresponding general right to unlock locks for the purposes of exercising user rights, Bill C-61 would allow copyright owners to lock in broad owners’ rights and lock out all but a few users’ rights.
According to many copyright owners, evidently, Bill C-61 would also lock owners into policing their own fans in a harsh and punitive legal model that looks to the past, instead of facing modern market realities with a new revenue model: See IT Canada’s interview with musicians:
http://www.itbusiness.ca/it/client/en/home/News.asp?id=48805&PageMem=1
Why oh why do our politicians so frequently assume that the American way must be the right way to go?
Marnie Tunay