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61 Reforms to C-61, Day 40: TPMs - No Regular Review Process

By Michael Geist

The U.S. DMCA experience leaves little doubt that the introduction of anti-circumvention legislation will create some unintended consequences.  No matter how long the list of circumvention rights and other precautionary measures, it is impossible to identify all future concerns associated with anti-circumvention legislation.  The U.S. DMCA addresses this by establishing a flawed tri-annual review process.  The system has not worked well, creating a formidable barrier to new exceptions and long delays to address emerging concerns.

As bad as the U.S. system is, the proposed Canadian system under Bill C-61 is worse since there is no mandated review of the exceptions at all.  Instead, Canada gets a flexible process that will allow the government to consider new exceptions if and when it sees fit.  In other words, the same government that brought you the Canadian DMCA will decide if there is a need to add any exceptions. Section 41.2 (1) provides that:

The Governor in Council may make regulations excluding from the application of section 41.1 any technological measure that protects a work, a performer ’s performance fixed in a sound recording or a sound recording,
or classes of them, or any class of such technological measures, if the Governor in Council considers that the application of that section to the technological measure or class of technological measures would unduly restrict
competition in the aftermarket sector in which the technological measure is used.

Moreover, Section 41.2 (2) states that the Governor in Council may make regulations prescribing additional circumstances in which paragraph 41.1(1)(a) does not apply, after taking into consideration the following factors:

(i) whether not being permitted to circumvent a technological measure that is subject to that paragraph could adversely affect the use a person may make of a work, a performer’s performance fixed in a sound
recording or a sound recording when that use is authorized,
(ii) whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available,
(iii) whether not being permitted to circumvent a technological measure that is subject to that paragraph could adversely affect criticism, review, news reporting, commentary, teaching, scholarship or research that could be made or done in respect of the work, the performer’s performance fixed in a sound recording or the sound recording,
(iv) whether being permitted to circumvent a technological measure that is subject to that paragraph could adversely affect the market for the work, the performer’s performance fixed in a sound recording or the sound recording or its market value,
(v) whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available in a medium and in a quality that is appropriate for non-profit archival, preservation or educational uses, and
(vi) any other relevant factor

If Canada establishes anti-circumvention legislation, it should also establish an impartial process that will enable concerned parties to raise potential new circumvention rights without excessive delay.  The process must be fast, cheap, and easily accessible to all Canadians.  Bill C-61 establishes the criteria for the introduction of new circumvention rights but fails to implement an administrative structure to conduct the reviews.

Full post as published by Michael Geist on August 15, 2008 (boomark / email).