Home -> Law Blog Directory -> Copyright Law Blogs -> Michael Geist

Copyright Law

: Michael Geist

61 Reforms to C-61, Day 24: TPMs - No Exclusion of Non-Infringing Access

By Michael Geist

Bill C-61's anti-circumvention approach ranks among the broadest of any statute in the world.  One area where it is particularly (over)broad is in its failure to exclude non-infringing access.  Under the current bill, Section 41.1(1) simply states that "no person shall circumvent a technological measure within the meaning of paragraph (a) of the definition of 'technological measure'".  Technological measure "means any effective technology, device or component that, in the ordinary course of its operation controls access to a work. . . "

By using such a broad approach - any circumvention of any effective access control - the statute prohibits the circumvention of TPMs that have absolutely nothing to do with infringing copying.  The most obvious example of this comes from the region coding found on DVDs and many computer games.  Many DVDs include Macrovision (designed to stop copying a DVD to VHS), Content Scramble System or CSS (the subject of important litigation involving DeCSS, a software program created to allow Linux users to play DVDs since they were otherwise unable to do so due to CSS), and region coding. 

The premise behind region coding is fairly straight-forward. With DVD region coding, the world is divided into eight regions (Canada and the U.S. form Region One).  Consumer electronics manufacturers have agreed to respect region coding within their products by ensuring that DVD players only play DVDs from a single region.  The net effect is that Canadian-purchased DVDs will play on Canadian-bought DVD players, but DVDs purchased in Europe, Australia, or Asia (all different regions), are unlikely to work on those same DVD players (with the exception of those DVDs that are region coded zero, which can be played worldwide). 

Note that the use of region coding has nothing to do with traditional notions of copyright law.  The underlying work may involve a copyrighted work - DVDs and video games regularly use region coding - yet the protection is designed to manipute markets by restricting the ability to use fully authorized copies of works.  Many countries have recognized this by specifically excluding non-infringing access controls from their anti-circumvention legislation.  For example, New Zealand's new copyright law includes a much different definition of technological measure, stating that:

for the avoidance of doubt, does not include a process, treatment, mechanism, device, or system to the extent that, in the normal course of operation, it only controls any access to a work for non-infringing purposes (for example, it does not include a process, treatment, mechanism, device, or system to the extent that it controls geographic market segmentation by preventing the playback in New Zealand of a non-infringing copy of a work)

Section 53a of 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," while Finland's law expressly permits circumvention for non-infringing uses of lawfully acquired copies.  The failure to include such a provision under Bill C-61 is a striking failure that must be remedied.

Full post as published by Michael Geist on July 24, 2008 (boomark / email).