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: Michael Geist

What Prentice Could Say to the U.S.

By Michael Geist

There is little doubt that Industry Minister Jim Prentice's determination to introduce a Canadian DMCA over the objection of business, consumer, and education groups is driven, at least in part, by pressure from the United States.  The U.S. argues that Canada must follow its DMCA model in order to implement the WIPO Internet treaties.  Interestingly, according to documents I recently obtained under the Access to Information Act, the U.S. Copyright Office privately criticized the Canadian government in 2005 over Bill C-60, claiming it did not meet the U.S. standard. Canadian officials within the Department of Canadian Heritage proposed the following response to criticisms that the legislation did not cover devices that can be used to circumvent TPMs and preserved fair dealing:

Protection of circumvention devices and criminalization of circumvention are not within the WCT and WPPT treaties' obligations. At best, can the prohibition of circumvention devices and criminal sanctions be considered indirect options for countries to undertake.

Treaty obligation is hence limited to providing adequate legal protection against the circumvention of effective technological measures.

Canada's protection of technological measures strives to maintain fundamental coherences and balances within the copyright framework but draws on the relative efficiency of technical measures. It achieves adequate protection in conformity with the WCT and WPPT treaties by enacting three new causes of civil action, the first dealing with the act of circumvention for the purpose of infringement, the second with the act of offering or providing a service to circumvent cognicent of infringing purpose of the service and third, with the subsequent acts to any circumvention conditional upon knowledge of infringement.

Canada's protection of technological measures is distinct from the approach of the United States. It does not rely on any administrative procedures by which persons may petition for additional exceptions such as the examples submitted to access circumvention or not to traffic in devices. It simply avoids creating liability for any such activity either traditionally exempt from copyright protection or altogether considered as foreign to copyright protection.

In other words, Canadian officials vigorously defended a balanced approach that rejects the U.S. DMCA. Yet Prentice has presumably ignored that advice and stands ready to cave to the U.S. pressure.

Full post as published by Michael Geist on May 21, 2008 (boomark / email).