Turning up the rhetoric on C-32′s TPM provisions

October 25th, 2010 by Barry Sookman Leave a reply »

As Bill C-32 approaches second reading in the House of Commons, critics of legal protection for technological measures (TPMs) are dialing up their attacks on C-32’s anti-circumvention provisions. Regrettably, many of the criticisms are based on an incorrect understanding of the Bill.

A case in point is a blog posting by Prof. Geist in which he reported on comments made by NDP MP Charlie Angus in the House of Commons on TPMs Angus Files Petition, Comments on C-32 & Digital Locks.  Prof. Geist’s posting is reproduced below:

This week NDP MP Charlie Angus used debate on the anti-spam bill to sound off on copyright reform and Bill C-32:

the present government’s plan with digital locks would actually lock down content unnecessarily and criminalize individuals who have legal rights, for example, librarians or blind people who need to be able to access educational works through digital locks. They will be treated the same as an international counterfeiter under the Conservatives, not surprisingly of course because the Conservatives have a dumb-down approach on pretty much everything. A blind student will be treated the same as an international counterfeiter if he or she has to break a digital lock to access digital works.  The Conservatives do not get it on the issue of copyright.

Earlier in the same session, Angus filed a petition in the House from people concerned with the digital lock provisions, calling on Parliament to restore balance on the issue.

After reading the statement made by Mr. Angus quoted by Prof. Geist without correction, one would conclude that C-32’s anti-circumvention provisions would actually criminalize individuals who circumvent TPMs for their own purposes or criminalize “librarians or blind people who need to be able to access educational works through digital locks”. But, these assertions about C-32 are not accurate.

Bill C-32 creates civil liability for circumventing access control TPMs and for trafficking in, or for providing circumvention services, for access control or copyright control TPMs. Bill C-32 does not prohibit or create any civil liability for circumventing TPMs which protect against making unauthorized copies of a work for any purpose including to engage in fair dealings for research, private study, criticism, or review, or for use by people with perceptual disabilities or by libraries.*

BillC-32 also contains specific exceptions from the generally applicable anti-circumvention provisions including those that prohibit circumventing access control TPMs. For example, there are exceptions for security and encryption research, creating interoperable programs, accessing personal information, unlocking cells phones, and law enforcement.

Bill C-32 also has a broad exception which permits breaking technological locks by persons with perceptual disabilities such as blind persons or by other persons at their request including not for profit institutions. It would also be legal for entities to offer services, or to manufacture, import, or provide tools, which facilitate circumventing TPMs to enable works to be made perceptual for blind people and for other persons with perceptual disabilities.

So the statement by Mr Angus repeated without correction by Prof. Geist that C-32 would make it a criminal offense for a blind person to break a TPM is not accurate. It would not violate any civil or criminal prohibition in C-32.

Bill C-32 does have a criminal sanction. But it applies only to a person who violates the anti-circumvention provisions of Bill C-32 “for commercial purposes”. So it would apply to entities like counterfeiters who engage in commercial scale illegal activities, but not otherwise.  So even if there wasn’t a specific exception permitting circumvention of TPMs for persons with perceptual disabilities, breaking a technological lock by or for a blind person would still not be a criminal offense under C-32.

Moreover, new Section 42(3.1) of C-32 which creates the new criminal sanction expressly exempts “a person who acts on behalf of a library, archive, or museum, educational institution”.  So, the statement by Mr. Angus, repeated without correction by Prof. Geist, that C-32’s anti-circumvention provisions could criminalize acts of librarians is also not accurate.

As we get closer to debating Bill C-32’s measures to protect TPMs, it would be productive to do so based on what the bill actually says. Unfortunately, critics of legal protection for TPMs often use misleading or inaccurate descriptions of Bill C-32’s TPM provisions in order to criticize it. See, Separating facts from hype about C-32;  Are the TPM provisions in C-32 more restrictive than those in the DMCA? Dr. Ficsor is right; Prof. Geist is wrong about the WIPO Internet Treaties; Legends and reality about the 1996 WIPO Treaties in the light of certain comments on Bill C-32. Or, as with the case of Prof. Geist’s recent blog, critics widely disseminate plainly inaccurate statements about the Bill’s TPM provisions without correction or comment further misleading the public about what the Bill actually does. These tactics are regrettable as the public requires accurate information to make appropriate judgments about the Bill.

* Typo corrected Oct 26.

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