[governance] Challenging the New Digital Lock Talking Point: Why European Rules Are More Flexible Than C-11

[Riaz K Tayob]

Michael Geist

Law professor, columnist, author
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Challenging the New Digital Lock Talking Point: Why European Rules Are 
More Flexible Than C-11
Posted: 11/25/11 10:16 AM ET

The debate over C-11 resumed this week in the House of Commons with Paul 
Calandra, the parliamentary secretary to the minister of Canadian 
heritage, invoking a claim that raises the question of how the Canadian 
digital lock rules compare to those found in Europe. In response to the 
ongoing concerns with Bill C-11's digital lock rules -- they are easily 
the most discussed issue during the debates -- Calandra stated:

     We know that in Europe there is much greater support for TPMs and 
that has not actually reduced the availability of content online. Does 
she have any rationale for thinking Canada's less stringent use of TPMs 
through the bill would somehow reduce the availability of content for 
Canadian consumers?

Calandra's comments raise two issues: (1) whether Europe has stricter 
support for digital locks; and (2) whether digital locks reduce the 
availability of online content.

The first issue is an important one since claims that Europe has 
stricter digital lock rules than those proposed in Bill C-11 are plainly 
inaccurate. Indeed, many Canadians would be far happier with the Bill 
C-11 digital lock rules if we matched some of the approaches found in 
Europe. European implementations include:

     Switzerland links circumvention to actual copyright infringement. 
Article 39a(4) includes a full exception for circumvention of TPMs for 
legal purposes, providing "the prohibition of circumvention can not be 
applied to People who are primarily circumventing for the purpose of a 
legal use."

     Norway's anti-circumvention law states that the provisions shall 
not "hinder private users in gaining access to legally acquired works on 
that which is generally understood as relevant playback equipment."

     Finland's law expressly permits circumvention for non-infringing 
uses of lawfully acquired copies.

     Lithuania's anti-circumvention provisions include a specific 
exception that preserve personal use rights by requiring content owners 
to enable legitimate uses.

     The Czech Republic's digital lock rules include a specific 
exception for digital archiving.

     Sweden's implementation of anti-circumvention legislation tries to 
ensure access to court cases and government documents that are subject 
to TPMs.

     Denmark's digital lock rules allow users to circumvent if the 
rights holder does not comply with an order from the Copyright License 
Tribunal to unlock for authorized purposes. Moreover, Denmark's 
implementation includes an explanatory text that indicates that only 
TPMs used to prevent copying are protected. Accordingly, if a TPM seeks 
to expand protection beyond mere copyright protection it does not enjoy 
legal protection. For example, encoding DVDs with regional coding would 
presumably not enjoy protection, an interpretation confirmed by the 
Danish Ministry of Culture which has opined that it would not be 
unlawful to circumvent DVD regional encoding for lawfully acquired DVDs, 
nor to circumvent a TPM if the sole purpose is to use a lawfully 
acquired work.

     Italy's digital lock rules require rights holders to allow users to 
exercise various exceptions found in its copyright legislation. 
Moreover, it includes the right to make one copy for personal use 
notwithstanding a TPM, provided that the work is lawfully acquired and 
the single copy does not prejudice the interests of the rights holder.

     Slovenia's digital lock rules include an exception that allow 
circumvention for teaching purposes.

     Germany's digital lock rules limit the coverage solely to works 
that are subject to copyright protection.

     Greece provides a positive right of access with the condition that 
failure to obtain the right leads first to mediation, followed by a 
legal right of action.

     Austria and the Netherlands have legislation that assumes access 
for non-infringing material -- Austria has said it is "monitoring" the 
situation, while the Netherlands has included the ability for the 
Justice Minister to issue decrees on the matter.

The second issue regarding reduced availability of online content is a 
bit odd since no one is claiming that the C-11 digital lock rules will 
reduce the availability of online content. The primary concern is that 
the rules prioritize locks and skew the copyright balance by allowing a 
rights holder to trump the rights of consumers merely by inserting a 
lock. To my knowledge, no one has suggested the rules will reduce the 
availability of content and Calandra's repeated reference to this (he 
raised it in an earlier session) does not respond to an actual concern 
or point of criticism.

In fact, the real concern -- raised by dozens of Canadian organizations 
and all the opposition parties -- is that the Canadian digital lock 
rules are more restrictive than those required by international law, 
more restrictive than those found in many other countries, and so 
restrictive that they undermine the government's claims of striking a 
balance. Calandra's references to other countries only serves to remind 
Canadians that the Bill C-11 digital lock rules are amongst the most 
restrictive in the world.

This post was originally published on www.michaelgeist.ca.
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