Canadian DMCA – C-60 and C-61 Compared – The ACTA Backdoor

We continue our series on the Canadian DMCA by comparing the previous legislation under the Liberal government to the new legislation under the Conservative government.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

In this segment, we compare anti-circumvention legislation – a controversial provision in both bill C-60 and bill C-61.

Previously in our series:
Actual Text – Damages – $500 – $20,000
Actual Text – Music – Sony Rootkit Legalized

We are switching our focus a little on our series in this segment. While the previous entries focuses primarily on the text of the current legislation, this segment focuses on the legislation that is in front of Canadians today and the legislation of the previous government. Michael Geist also offers two series on the text of the bill, one entitled ‘A Week in the Life of the Canadian DMCA‘ and ‘61 Reforms to C-61‘.

As we mentioned at the beginning of the series, section 41 of Bill C-61 contains anti-circumvention legislation which bars Canadians from general fair dealings that was otherwise enjoyed if there is a digital lock on it. What does Bill C-60, the previous legislation say? It says the following in section 34:

34.02 (1) An owner of copyright in a work, a performer’s performance fixed in a sound recording or a sound recording and a holder of moral rights in respect of a work or such a performer’s performance are, subject to this Act, entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right against a person who, without the consent of the copyright owner or moral rights holder, circumvents, removes or in any way renders ineffective a technological measure protecting any material form of the work, the performer’s performance or the sound recording for the purpose of an act that is an infringement of the copyright in it or the moral rights in respect of it or for the purpose of making a copy referred to in subsection 80(1).

(2) An owner of copyright or a holder of moral rights referred to in subsection (1) has the same remedies against a person who offers or provides a service to circumvent, remove or render ineffective a technological measure protecting a material form of the work, the performer’s performance or the sound recording and knows or ought to know that providing the service will result in an infringement of the copyright or moral rights.

(3) If a technological measure protecting a material form of a work, a performer’s per­formance or a sound recording referred to in subsection (1) is removed or rendered ineffective in a manner that does not give rise to the remedies under that subsection, the owner of copyright or holder of moral rights nevertheless has those remedies against a person who knows or ought to know that the measure has been removed or rendered ineffective and, without the owner’s or holder’s consent, does any of the following acts with respect to the material form in question:

(a) sells it or rents it out;

(b) distributes it to such an extent as to prejudicially affect the owner of the copyright;

(c) by way of trade, distributes it, exposes or offers it for sale or rental or exhibits it in public; or

(d) imports it into Canada for the purpose of doing anything referred to in any of paragraphs (a) to (c).

From Bill C-61:

41.1 (1) No person shall

(a) circumvent a technological measure within the meaning of paragraph (a) of the definition “technological measure” in section 41;

(b) offer services to the public or provide services if

(i) the services are offered or provided primarily for the purposes of circumventing a technological measure,

(ii) the uses or purposes of those services are not commercially significant other than when they are offered or provided for the purposes of circumventing a technological measure, or

(iii) the person markets those services as being for the purposes of circumventing a technological measure or acts in concert with another person in order to market those services as being for those purposes; or

(c) manufacture, import, provide — including by selling or renting — offer for sale or rental or distribute any technology, device or component if

(i) the technology, device or component is designed or produced primarily for the purposes of circumventing a technological measure,

(ii) the uses or purposes of the technology, device or component are not commercially significant other than when it is used for the purposes of circumventing a techno- logical measure, or

(iii) the person markets the technology, device or component as being for the purposes of circumventing a technological measure or acts in concert with another person in order to market the technology, device or component as being for those purposes.

Outside of some rewording of the legislation, all-in-all, the anti-circumvention seems to remain relatively unchanged with a few exceptions. One of the most immediately obvious differences is that the Liberal legislation frames circumvention in a way that basically says, ‘the copyright holder is entitled to damages over circumvention’ while the Conservative legislation basically says ‘no person shall circumvention technological measures that is against a copyright holders permission’

This difference seems pretty significant considering that, before, it seemed as though the legislation would give way to lawsuits from copyright owners. Under this legislation, judging by the snippet, it would possibly open the door for any authority figure to target forms of copyright infringement. This kind of idea easily goes along with what ACTA would allow – searching of people’s iPods, laptops and other recordable mediums based on suspicion and permit authorities to “destroy” confiscated belongings. One might wonder if ACTA was around when Bill C-60 was tabled, if this backdoor would exist in the legislation at the time as it clearly does now.

Further reading: Our coverage on ACTA

Drew Wilson on Twitter: @icecube85 and Google+.



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