insight_slides_on c-32 and tpms

8/8/2019 Insight_Slides_on C-32 and TPMs

1/29

11

Bill C-32: Legal Protection for TPMs

barry b. [email protected]

416-601-7949

9887585

Insight Conference: RIGHTS and COPYRIGHTBringing Canada into the 21st Century

December 8, 2010


2/29

22

Topics

Does Bill C-32 properly implement the WIPO Treaties consistent with

approaches used by Canadas trading partners?

Does Bill C-32 permit circumvention of TPMs to permit copying for fair dealing,

educational and other purposes?

Does Bill C-32 have a flexible framework to permit new exceptions to be made

by regulation?

Can the WIPO Treaties be implemented by limiting protection to circumvention

for the purposes of infringement? Should circumvention of TPMs for private copying purposes be permitted?

Are private copying exceptions user rights that trump legal protection for

TPMs?

Do other jurisdictions permit an exception for private copying to trump TPMs?

Would an exception for private copying that permits circumventing TPMs violate

the Berne Three Step Test? Can the WIPO Treaties be complied with by permitting circumvention of TPMs

for private copying?

Does Canada have any trading partners that have private copying, no levy, and

permit circumventing a TPM for private copying?


3/29

33

Does Bill C-32 properly implement theWIPO Treaties consistent with approaches

used by Canadas trading partners?


4/29

44

Contracting Parties may only be sure that they are able to fulfill their obligationsunder Article 11 of the Treaty if they provide the required protection andremedies:

(i) against both unauthorized acts of circumvention, and against themanufacture, importation and distribution of circumvention tools and the offering

of services for circumvention); (ii) against all such acts in respect of both technological measures used for

access control and those used for the control of exercise of rights, such ascopy-control devices;

(iii) not only against those devices whose only sole purpose iscircumvention, but also against those which are primarily designed and producedfor such purposes

(iv) not only against an entire device which is of the nature just describedbut also against individual components or built-in special functions.

Guide to the Copyright and Related Rights Treaties Administered by WIPO,November 2003, at para CT11.16.

What Are The Requirements For Complying With The WIPO

Treaties?


5/29

55

Bill C-32 TPM definitions

technological protection measure means any

effective technology, device or component that, inthe ordinary course of its operation,

(a) controls access to a work, to a performers

performance fixed in a sound recording or to a

sound recording and whose use is authorized by

the copyright owner; or

(b) restricts the doing with respect to a work, to

a performers performance fixed in a sound

recording or to a sound recording of any act

referred to in section 3, 15 or18 [infringement]

and any act for which remuneration is payable

under section 19 [royalties].

circumvent means,

(a) in respect of a technological protection measure

within the meaning of paragraph (a) of the

definition technological protection measure, to

descramble a scrambled work or decrypt an

encrypted work or to otherwise avoid, bypass,

remove, deactivate or impair the technological

protection measure, unless it is done with the

authority of the copyright owner; and

(b) in respect of a technological protection measure

within the meaning of paragraph (b) of the

definition technological protection measure, to

avoid, bypass, remove, deactivate or impair the

technological protection measure.

Industry Canada Fact Sheet: The bill recognizes that certain protections, such as restricted

content on news websites or locked video games, are important tools for copyright owners toprotect their digital works and are often an important part of online and digital businessmodels. While the music industry has moved away from digital locks on CDs, they continue to be used inmany online music services. Software producers, the video game industry and movie distributors alsocontinue to use digital locks to protect their investments. Canadian jobs depend on their ability tomake a return on their investment. Businesses that choose to use digital locks as part of theirbusiness models will have the protection of the law.


6/29

66

Technological Protection Measures (TPMs) 41.1 (1) No person shall

(a) circumvent a technological protection measure withinthe meaning of paragraph (a) of the definitiontechnological protection measure in section 41;

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

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

(ii) the uses or purposes of those services are not

commercially significant other than when they areoffered or provided for the purposes ofcircumventing a technological protection measure,or

(iii) the person markets those services as being forthe purposes of circumventing a technologicalprotection measure or acts in concert with anotherperson in order to market those services as beingfor those purposes; or

(c) manufacture, import, distribute, offer for sale or rentalor provide including by selling or renting anytechnology, device or component if

(i) the technology, device or component is designedor produced primarily for the purposes ofcircumventing a technological protection measure,

(ii) the uses or purposes of the technology, device orcomponent are not commercially significant other thanwhen it is used for the purposes of circumventing atechnological protection measure, or

(iii) the person markets the technology, device orcomponent as being for the purposes of circumventinga technological protection measure or acts in concertwith another person in order to market the technology,

device or component as being for those purposes.

Exceptions to infringement:

1. Law enforcement and national security (s.41.11)

2. Interoperability of computer programs (s.41.12)

3. Encryption research (s.41.13)

4. Protection of personal information (s.41.14)

5. Computer and network security (s.41.15)

6. Perceptual disability (s.41.16)

7. Broadcast undertakings (s.41.17)

8. Radio apparatus (s.41.18)


7/29

77

The C-32 TPM provisions are consistent with the WIPO Treatiesand permit copy control circumvention for fair dealing purposes

Country

Act ofCircumvention- AccessControlTechnologicalMeasure

Act ofCircumvention-CopyrightControlTechnologicalMeasure

CircumventionTools- AccessControlTechnologicalMeasure

CircumventionTools-CopyrightControlTechnologicalMeasure

CriminalSanctions

United

States

Prohibited (

1201 (a)(1))

Not prohibited

(by DMCA)

Prohibited (

1201(a)(2))

Prohibited (

1201(b))1204

EUCopyrightDirective

Prohibited (Art.6(3); Art. 6(1))



Prohibited (Art.6(3), Art. 6(2))

Remedies mustbe effective,proportionate anddissuasive.(Art.8)

Canada Prohibited

Not Prohibitedpermitscircumventionfor fair dealing,education andotherpurposes.

Prohibited Prohibited

Criminalsanctions in

CommercialCases


8/29

88

Regulations to Deal With UnintendedConsequences

41.21 (1) The Governor in Council may make regulations excluding

from the application of section 41.1 any technological protection

measure that protects a work, a performers performance fixed in a

sound recording or a sound recording, or classes of them, or any class

of such technological protection measures, if the Governor in Council

considers that the application of that section to the technological

protection measure or class of technological protection measures

would unduly restrict competition in the aftermarket sector inwhich the technological protection measure is used.


9/29

99

Regulations to deal with unintendedconsequences 41.21 (2) The Governor in Council may make regulations (a) prescribing additional circumstances in which paragraph 41.1(1)(a) does not apply, having

regard to the following factors:

(i) whether not being permitted to circumvent a technological protection measure that is

subject to that paragraph could adversely affect the use a person may make of a work, aperformers performance fixed in a sound recording or a sound recording when that use is

authorized,

(ii) whether the work, the performers performance fixed in a sound recording or the soundrecording is commercially available,

(iii) whether not being permitted to circumvent a technological protection measure that issubject to that paragraph could adversely affect criticism, review, news reporting,commentary, parody, satire, teaching, scholarship or research that could be made ordone in respect of the work, the performers performance fixed in a sound recording or the

sound recording,

(iv) whether being permitted to circumvent a technological protection measure that is subjectto that paragraph could adversely affect the market for the work, the performers performance

fixed in a sound recording or the sound recording or its market value,

(v) whether the work, the performers performance fixed in a sound recording or the soundrecording is commercially available in a medium and in a quality that is appropriate fornon-profit archival, preservation or educational uses, and

(vi) any other relevant factor; and


10/29

1010

Regulations to deal with unintendedconsequences

41.21(2)(b) requiring the owner of the copyright in a work, aperformers performance fixed in a sound recording or a sound

recording that is protected by a technological protection measure

to provide access to the work, performers performance fixed in

a sound recording or sound recording to persons who areentitled to the benefit of any of the limitations on theapplication of paragraph 41.1(1)(a) prescribed underparagraph (a). The regulations may prescribe the manner in

which, and the time within which, access is to be provided, as

well as any conditions that the owner of the copyright is to

comply with.


11/29

1111

Comparison of the flexibility of C-32s TPM provisions withthose in other countries to deal with unintended consequencesand technological changes

Country

Process to excludenew classes ofTPMs or classes ofworks

Process to ensureindividuals can availthemselves of the permittedexceptions

Regulations toexclude classesof TPMs wherethere they wouldunduly restrictcompetition

Mandated review

UnitedStates

Tri-annual reviewprocess before

Copyright Office toexclude classes ofworks for certainpurposes

N/A N/A 1201(a)(1)(D)

EUCopyrightD

irective

N/A

Article 6(4) Member Statesmust take appropriatemeasures to ensurebeneficiaries of an exception

can avail themselves of theenumerated exceptions to the

TPM provisions.

N/A N/A

Canada

s.41.21(2)(a)Regulations can bemade any time withbroad flexible criteriato exclude new

classes of TPMs.

s.41.21(2)(a) Regulations can

be made at any time to requirerights holders to provideaccess to a work to enableindividuals avail themselves ofthe enumerated exceptions tothe TPM provisions.

s.41.21(1)Regulations can bemade any time.

s.92 every 5 years


12/29

1212

Can the WIPO Treaties be implemented by

limiting protection to circumvention for thepurposes of infringement?


13/29

1313

A plain reading of Articles 11 and 18 of the WIPO Internet Treaties,

the definition of technological measure and new section 34.02 [of Bill

C-60] inevitably raise questions about the adequacy of the protection

for technological measures to enable Canada to ratify the WIPO

Treaties. In fact, in view of persuasive commentary including inparticular the WIPO Guide and legislative developments among

Canadas trading partners, the inevitable conclusion is thatCanadas legislation could not adequately implement itsobligations regarding technological measures under the WIPOInternet Treaties without significant amendment to the definitionand new section 34.02. Glen Bloom, Technological Measures andRights Management Information, October 25, 2005

The WIPO Treaties do not permit the type offramework provided for in previous Bill C-60


14/29

1414

The WIPO Treaties cannot be implemented by limitingprotection to circumvention for the purposes of infringement

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. Canadas 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.

Dr. Ficsor, TPMs AND FLEXIBILITY (THE ABILITY OF BENDING

WITHOUT BREAKING) WHY SHOULD THE TPM PROVISIONS OFBILL C-32 PROTECT ACCESS CONTROLS AND PROHIBIT

PREPARATORY ACTS, http://www.iposgoode.ca/Ficsor-TPMs-and-

Flexibility.pdf


15/29

1515


Prof. Geist insists on flexible interpretation and implementation

of the TPM provisions, and alleges that those who do not agree

with him such as me are the advocates of inflexible

interpretation and implementation. The truth is that everybody

including myself, as I have clearly stated is of the view that theTPM provisions offer flexibility. The difference between us is only

that, while Prof. Geist as he quite clearly states is in favor of

an unlimited flexibility, myself and others are of the view that the

requirement of adequate protection sets limits in this respect.

Dr. Ficsor, TPMs AND FLEXIBILITY


16/29

1616


The subsequent practice of countries party to the two Treaties

implementing the TPM provisions indicates that Canadas major

trading partners have duly implemented the treaty obligations as

outlined aboveProf. Geist suggests the contrary. His examples

covering certain developing and transition countries and countries

which have not acceded yet to the Treaties, along with extremely fewisolated other cases, are not suitable to justify his position. Dr. Ficsor,

TPMs AND FLEXIBILITY

New Zealand has not ratified the WIPO Treaties.

It does happen time and again that certain Contracting Parties do

not fulfill their treaty obligations. In this respect, Switzerland is sucha country. Dr. Ficsor, TPMs AND FLEXIBILITY


17/29

1717

Should circumvention of TPMs for private

copying purposes be permitted?


18/29

1818

Each Exception is Limited To Where an Individual DoesntCircumvent a TPM: Why This is Necessary

The exceptions for format shifting (s.29.22), time shifting (s.29.23) and

backup copies (s.29.24) are all subject to the condition that the individual

does not circumvent a TPM in order to make the copy.

TPMs (and TPM protection) ultimately benefits both consumers, creators

and distributors of digital content since they enable the creation of a

diversified market for digital goods. Allowing individuals to circumvent these TPMs for personal uses

undermines the viability of these markets.

Innovative distribution models for digital goods require the protections

placed on media or content to be enforced in order to be effective.

Ad-supported on-demand business models are ineffective if individuals can

make new copies.

These conditions against TPM circumvention are even more essential

where the copying would go uncompensated, e.g. where there is no levy.


19/29

1919

Why the TPM Restrictions in the ExceptionsAre Necessary

Rent option allows the customer to

download a movie file with a TPM

that causes the file to automatically

delete itself at the expiration of rental

period (e.g. a week).

If consumers are allowed tocircumvent TPMs in order to format

shift copies, the Buy option is

completely ineffective since

consumers could create copies of

rented files without the TPMs that

cause the file to be deleted.


20/29

2020

Past 2-3 years has seen substantial

growth in distributors making content

available online using ad-supported

audio/video streaming model (Hulu,

Spotify, etc.).

Streaming technology that requires userto view advertisement is a form of

access-control TPM.

Distribution model is rendered ineffective

if end-users can legally create TPM-free

format-shifted or time-shifted copies.

New innovative distribution models of

digital media are dependent upon robust

TPM protections.

Why the TPM Restrictions in theExceptions Are Necessary+


21/29

2121

Music

Circumvent TPM put

song on iPod (format-

shifting or time

shifting)

End-user

Streaming music

from Spotify,

YouTube: free (ad-

supported, TPM

prevents local

download)Consumer goes to

streaming website

iTunes TPM-

free song: $.99

Market for paid

music undermined

Digital Distributors



22/29

2222

Software/Games

TPM-free: $50

TPM allowing

program installed on

only 5 computers:

$20

5-day trial version

(TPM deletes

program after 5

days): free Consumer

downloads free trial

Market for non-trial

version of software

undermined

End-userDigital Distributors

Circumvent TPM

under format shift

exception



23/29

2323

Are private copying exceptions user rightsthat trump legal protection for TPMs? User rights under copyright do not transfer the copyright in a work to the buyer of a

work. There may be ownership or a right to use the copy, but not transfer of the

copyright.

The creation of an exception for private copying does not as a matter of law create any

user right that trumps authors rights.

private copying does not constitute a right but a legal exception to the principle

prohibiting any integral or partial reproduction of a protected work without the consent of

the holder of the copyright The Mulholland Drive case, France Cour de Cassation, 19

juin 2008.

UFC-Que Choisir v Perquin, Paris, Court of Appeal, 4 April, 2007, private copyingmay

be raised as a defence in proceedings - especially proceedings for copyright

infringement - but it cannot be claimed as constituting a right on which to found a

principal claim having regard to the no right, no action precept, regardless of theexistence of a private copying levy paid by consumers;

Test Achats v EMI Recorded Music Belgium et al Brussels Court of Appeal, September

9, 2005 (dismissing claim that use of TPMs on CDs infringe individuals rights under

the private copying exception).


24/29

2424

Do other jurisdictions permit an exception forprivate copying to trump TPMs?

EU Copyright Directive (2001/29/EC of the European Parliament and of theCouncil of 22 May 2001):

private copying is only permitted if it is subject to fair compensation,

e.g. a levy, Art 5.2(b)

a private copying exception must not violate the Berne Three Step

Test, Art.5

(5

) there is no exception that permits circumvention of TPMs to enable

private copying, Art 6(4)

Member States may take measures to enable certain private copying

where a rightsholder has not voluntarily done so, without preventing

rightsholders from limiting the number of copies, Art. 6(4); this

provision has never been used Member States cannot take measures to enable private copying for

works or other subject-matter made available to the public on agreed

contractual terms in such a way that members of the public may

access them from a place and at a time individually chosen by them.


25/29

2525

Would an exception for private copying that permits circumventing

TPMs violate the Berne Three Step Test?

Mulholland Drive, France Supreme Court, 28 February 2006: An exception for privatecopying that prevents copyright holders from using TPMs to prevent that copying in the

digital environment would violate the Berne Three Step Test:

Whereas, according to Article 9.2 of the Berne Convention, the reproduction of literary

and artistic works protected by copyright can be permitted, in certain special cases,

provided that such reproduction does not conflict with a normal exploitation of the work

nor cause an unreasonable prejudice to the legitimate interests of the author; that the

private copy exception provided for in Articles L. 122-5 and L. 211-3 of the IntellectualProperty Code, which must be interpreted in the light of the European Directive citedabove, cannot form an obstacle to the insertion in the carriers onto which a protected work

is reproduced, of technical protection measures intended to prevent the copying of [that

work], when it would result in a conflict with the normal exploitation of the work, which

must be assessed by taking into account the economic impact that such a copying can

have in the context of the digital environment

That in ruling as it did, whereas the conflict with the normal exploitation of the work, whichshould lead to the setting aside of the private copying exception, must be assessed inlight of the risks inherent in the new digital environment as regards the safeguarding of

copyright and of the economic importance that the exploitation of the work, in the form of

DVD, represents for the recovery of the costs of cinematographic production, the Court of

Appeal violated the legislative texts cited above;


26/29

2626

Would an exception for private copying that permits circumventing

TPMs violate the Berne Three Step Test?

Henry et al v SA Warner Bros France Paris Commercial Court, 19September 2007:

In the absence of anti-copying devices, any individual with a DVD

and access to a player/recorder can make an unlimited number of

copies completely identical to the original. By providing copies

made in this way, even free of charge, to third parties, theseindividuals are liable to disturb the DVD market and as a result

lower the incomes of producers in an uncontrolled manner.

The court considers this risk to be sufficiently serous and

established to justify in law the presence of anti-copying devices

preventing identical reproduction.


27/29

2727

Can the WIPO Treaties be complied with by permittingcircumvention of TPMs for private copying?

an adequate, rather than more than sufficient, level of protection requiresappropriate norms to guarantee the applicability of exceptions to copyright

justified by relevant public interests; this, however, requires cautious regulation

duly balancing between the various interests and it cannot take the form ofsimply providing direct free access for any beneficiaries of any exceptions in

any possible format by eliminating the applicability of any kind of TPM

contrary to Prof. Geists allegation according to which the purpose of theapplication and protection of TPMs, and through it, the adequate protection and

normal exploitation of copyright, could be achieved also by allowing thecircumvention of TPMs for anybody in order to directly enjoy anyexception (for example, a private copy exception by each member of thehuge Internet population, and in fact anybody who wants at all a copy) or to

get access to works otherwise (for example, in order to receive freely any onlinecommunication of works citing the fact that such acts are not directly controlled

by copyright). Dr. Ficsor, TPMs AND FLEXIBILITY

How can protection for TPMs be adequate if a right of circumvention for

private copying would violate the Berne Three Step Test?


28/29

2828

Does Canada have any trading partners that have private copying,

no levy, and permit circumventing a TPM for private copying?

No country (including Switzerland or NewZealand) permit circumvention of a TPM forprivate copying without compensation, e.g.without a levy.

A solution that permits circumventing TPMs for

private copying would exacerbate the existing

problem of uncompensated private copying.


29/29

2929

VANCOUVERSuite 1300, 777 Dunsmuir Street

P.O. Box 10424, Pacific CentreVancouver BC V7Y1K2

Tel: 604-643-7100

Fax: 604-643-7900

Toll-Free: 1-877-244-7711

CALGARYSuite 3300, 4217th Avenue SW

Calgary AB T2P 4K9

Tel: 403-260-3500

Fax: 403-260-3501

Toll-Free: 1-877-244-7711

TORONTOBox 48, Suite 5300

Toronto Dominion Bank Tower

Toronto ON M5K1E6

Tel: 416-362-1812

Fax: 416-868-0673

Toll-Free: 1-877-244-7711

OTTAWASuite 200, 440 Laurier Avenue WestOttawa ON K1R 7X6

Tel: 613-238-2000

Fax: 613-563-9386

Toll-Free: 1-877-244-7711

MONTRALSuite 2500

1000 De La Gauchetire Street WestMontral QC H3B 0A2

Tel: 514-397-4100

Fax: 514-875-6246

Toll-Free: 1-877-244-7711

QUBECLe Complexe St-Amable1150, rue de Claire-Fontaine, 7e tage

Qubec QC G1R 5G4

Tel: 418-521-3000

Fax: 418-521-3099Toll-Free: 1-877-244-7711

UNITED KINGDOM &EUROPE125 Old Broad Street, 26th Floor

London EC2N 1AR

UNITED KINGDOM

Tel: +44 (0)20 74895700

Fax: +44 (0)20 74895777

insight_slides_on c-32 and tpms

Documents