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Welcome. I hope everyone is having a good day so far. Michael Geist and I are going to talk about the legal protection of technological protection measures (TPMs).

I am going to explain how the TPM provisions in Bill C-32 work and highlight some of the areas where there has been confusion in interpreting them. I will also address some of the proposals being made for amending C-32 as it relates to TPMs. In particular, I will provide my views on the merits of Michael’s two main proposals for amending the Bill’s TPM provisions.

Michael says the Bill should only prohibit circumventing TPMs when the purpose is for infringement. He also says a person should be able to hack a TPM to make private copies and that rights holders should not be compensated for such copying such as through a private copying levy. I do not agree with his proposals and will tell you why.

It is interesting that I am speaking before Michael today. I will be anticipating some of the things he might say based on his blogs and our recent appearance before the legislative committee reviewing Bill C-32 on December 1, 2010. If I get Michael’s positions wrong, I am sure he will tell us.

Frequently asked questions about legal protection for TPMs

The topics I will canvass are set out in my slides in more detail. They are organized by a series of questions that people who are involved in the debate about TPMs need to consider. They are:

• Whether Bill C-32 properly implements the WIPO Treaties consistent with the practices of our trading partners.
• Whether the Bill permits copying for fair dealing, educational, and other purposes.
• Whether the circumvention exceptions in the Bill are flexible enough to deal with unforeseen or unintended consequences.
• Whether Canada can properly implement the WIPO Treaties by limiting the prohibition on circumvention to an infringing purpose.
• Whether other jurisdictions limit protection of TPMs to circumvention for an infringing purpose.
• Whether circumvention of TPMs for the purposes of format shifting, time shifting, and making back-up copies for private purposes (private copying) ought to be permitted. Related to this question is the notion of “user rights”; what that term means; whether “user rights” trump authors’ rights; and whether “user rights” should trump legal protection for TPMs.
• Given that one of the goals behind the Bill is to follow international standards, whether other jurisdictions permit exceptions for private copying to trump TPMs.
• Whether an exception for private copying that permits circumvention of TPMs for such purpose would comply with the Berne Three Step Test?
• Do the WIPO Treaties which Canada is committed to ratifying permit circumventing TPMs for private copying?
• My last topic is whether Michael’s two proposals for amending the TPM provisions in Bill C-32 have any precedents internationally. Michael points to Bill C-60, New Zealand and Switzerland as precedents. But are they really precedents we can or should follow? They are not and I will tell you why.

Does C-32 properly implement the WIPO Treaties?

Let me begin with the question as to whether Bill C-32 properly implements the WIPO Treaties. If you look at my slides you will see a quote from the WIPO Guide which sets out what the treaties require. WIPO itself says that to implement the treaties a contracting party must put in place several measures. The first are measures that prohibit acts of circumvention including prohibiting acts of access control circumvention. The second are measures that prohibit providing circumvention services and trafficking in circumvention tools.

Bill C-32 meets these requirements. The Bill has a definition of “technological protection measure”. It describes two types of TPMs.  Paragraph (a) defines access control TPMs; paragraph (b) defines copy control TPMs.  There is a definition of “circumvent”.  The actual prohibition against circumvention which is in Section 41.1(1) only apply to access control TPMs within the meaning of paragraph (a). There is no general prohibition against circumventing copy control TPMs. The provisions dealing with trafficking in circumvention tools or offering services to circumvent apply to both access control and copy control measures.

Does C-32 have exceptions that permit circumvention of TPMs and is there a flexible means of adding to them if needed?

The Bill has a number of exceptions, some of which are misunderstood or have been inaccurately described. There are, for example, exceptions for law enforcement, interoperability, encryption research, personal information and network security testing. There are also exceptions that permit trafficking in tools and providing circumvention services to facilitate the exercise of these exceptions.

Michael has said there are no exceptions for the blind. He is wrong. There is one that permits circumvention by or for persons with perceptual disabilities such as the blind. He also says that the exception for the blind does not include an exception that permits providing circumvention tools or services to enable people to circumvent TPMs for the blind. This too is wrong. Section 41.16(2) has an exception for this.

Michael also says there is no exception that permits jail breaking phones to use them on other networks. That is dealt with in radio apparatus exception. He also says there is no ability to jail brake a smartphone for the purpose of application interoperability. That also is wrong. To the extent a person needs to circumvent a TPM to make an application work with a phone’s operating system e.g., Apple’s iPhone OS, that is permissible under the general exception that enables people to circumvent TPMs for interoperability purposes.

If you compare the circumvention prohibitions in Bill C-32 with what exists internationally, you will see that they are less protective of TPMs than in the EU under the Copyright Directive. That directive requires Member States to prohibit the circumvention of access and copy control TPMs. Bill C-32 only prohibits circumvention of access control TPMs. Under C-32 it is permissible to circumvent a copy control TPM for a fair dealing or other purpose including education. Statements made by Michael to the effect that the TPM provisions in C-32 are more strict than in the U.S or that they completely trump fair dealing and education are not, therefore, true.

Michael has also challenged the processes in the Bill to establish new exceptions to address unintended consequences and new technologies. He claims the Bill is inflexible in this respect. However, if you look at the Bill you will see that the government has the power to enact regulations in three categories of situations to deal with unintended consequences and new technologies.

Under  S.41.21(1) there is a power to make regulations in the event TPMs are used to restrict competition in the aftermarket sector. This power was intended to deal with the few cases in the U.S. where entities tried, unsuccessfully, to use TPMs to stop competition in interoperable products such as garage door openers and printer cartridges.

The Governor in Council also has a broad power to make regulations to deal with other situations in Section 41.21(2) having regard to specific open ended criteria set out in the subsection. Subsection (i), takes into account a situation where a TPM could adversely affect the use a person may make of a work. This is very broad factor and would cover regional coding and other potential impediments to the use of a work. Subsection (iii) takes into account a situation where a TPM could adversely affect fair dealings for criticism, review, news reporting, commentary, parody, satire, teaching, scholarship or research. Accordingly, if TPMs hamper fair dealings including a dealing for educational purposes, a regulation could address the problem. Subsection (v) takes into account a situation in which a work is not commercially available in a form that is appropriate for educational uses. Last, the subsection requires taking into account any other relevant factor.

Section 41.21(2)(b) also gives the government the power by regulation to require the owner of a copyright to provide access to people who are entitled to the benefit of an exception, where for some reason the copyright owner is not making it possible to exercise the exception.

As my slides show, these processes provide mechanisms to address unintended consequences and new technologies in a broader and more flexible way than what exists internationally. For example, the U.S. has only one process to expand the scope of the exceptions. It is one that Michael has criticised. The U.S. has a tri-annual review process before the U.S. Copyright Office to exclude classes of works for certain purposes. The Canadian regulation power is broader. It applies at any time and is not subject to the same standard of proof. In the EU under Article 6(4) the EU Copyright Directive, Member States have to take appropriate measures, in the absence of voluntary agreements with rights holders, to make the exercise of certain exceptions possible.

Can a prohibition on circumvention that is limited to an infringing purpose comply with the WIPO Treaties?

I would like now to turn to the question of whether the WIPO Treaties can be implemented by limiting protection to circumvention for the purposes of infringement. I raise this because Michael has said on numerous occasions, most recently before the legislative committee examining Bill C-32, that Canada can implement protection for TPMs in this way and comply with the minimum requirements of the WIPO Treaties.

There has been an exchange of views across the Atlantic between Michael and Dr. Ficsor concerning the minimum requirements of the WIPO Treaties. Last December Dr. Ficsor published several papers in which he disagreed with Michael’s views about the WIPO Treaties. After C-32 was tabled Michael published a paper in a book edited by him, which I am sure he will show you as he did to the legislative committee. In the paper Michael took issue with Dr. Ficsor’s views about the WIPO Treaties. Dr. Ficsor read the paper and wrote a major rebuttal to Michael’s paper which he published on IP Osgoode’s blog. He thoroughly and meticulously examined every argument and conclusion that Michael made and found them wanting.

Dr. Ficsor agrees that there is certain flexibility as to how the treaties can be implemented. But he disagrees with Michael’s opinion that the treaties mean “whatever you want them to mean”.  Dr. Ficsor provides a detailed analysis of what the treaties do require. He shows that the treaties cannot be properly implemented by linking the prohibition against circumvention to an infringing purpose, as Michael contends. I recommend you read Dr. Ficsor’s paper.

Dr. Ficsor knows something about the WIPO Treaties. He was the Assistant Deputy General of WIPO at the time the WIPO Treaties were negotiated. There is probably no one who knows more about the requirements of the WIPO Treaties than he does.

Do other countries link circumvention of TPMs to an infringing purpose?

No, our trading partners do not prohibit circumventing TPMs only if the purpose of the circumvention is for an infringing purpose. There would be no point to such limited protection and it could hardly be argued that such protection provides “adequate legal protection” for TPMs, as the WIPO Treaties require.

Michael points to Bill C-60, New Zealand, and Switzerland as precedents for limiting protection for TPMs to circumvention for the purposes of infringement. He repeated that claim again before the legislative committee. Let us look at these supposed precedents.

At the time Bill C-60 was being considered, there were many people who believed that its TPM provisions would not have complied with the WIPO Treaties. An example, is Glen Bloom who expressed this view in a paper referred to in my slides. Mr. Bloom is the Chair of the IPIC Copyright Technical Committee. In this capacity he recently testified before the legislative committee about Bill C-32. He knows his copyright. Mr. Bloom states in his paper, quoted in my slides, that Bill C-60’s TPM provisions would not have met Canada’s obligations under the WIPO Treaties.

Michael also relies on New Zealand as a precedent. New Zealand permits circumvention of TPMs unless it is for an infringing purpose. Michael says that shows that the treaties can be implemented in this way. But, New Zealand has not ratified the WIPO Treaties and is hardly a country that can evidence what the treaties require.

Michael also refers to Switzerland as a precedent because Switzerland links a prohibition on circumventing TPMs to an infringing purpose. But, Switzerland is a known case of a Contracting Party that simply did not do it right. Dr. Ficsor says, “it does happen time and again that certain Contracting Parties do not fulfil their treaty obligations. Switzerland is such a country.”  Of the 88 countries that have ratified the WCT and the 87 countries that have ratified the WPPT, Michael picks as a model a country that has failed to provide adequate legal protection against the circumvention of TPMs. He does not pick any of Canada’s major trading partners as examples for Canada to follow.

Moreover, although Michael refers to Switzerland as a model, he hasn’t, to my knowledge, pointed out that Switzerland has a private copying levy to compensate rights holders for unauthorized copying. Michael told the legislative committee last week that he does not support a levy to compensate authors for unauthorized copying. So even Switzerland is not a precedent for the overall form of implementation Michael proposes.

Should circumvention of TPMs for private copying be permitted?

I now want to address whether circumvention of TPMs should be permitted for private copying. Bill C-32 has exceptions for format shifting, time shifting and making backup copies. These exceptions only apply where TPMs are not hacked to do these acts.

In my view, the conditions against hacking TPMs in the new private copying exceptions are important. TPMs support new business models that would be undermined if people could hack TPMs to make private copies. The conditions are also important because Bill C-32 permits private copying without any compensation to rights holders. Removing these conditions would undermine legitimate markets for the legal sale of copyright content and further increase uncompensated copying.

Michael says we should drop these conditions. He says we should permit people to hack TPMs to copy for format shifting, time shifting and back-up copying purposes. But, doing so could undermine many current and future service offerings which depend on protecting copy and access control TPMs. These include subscription, rental, and rent to own services.** Examples of these services are music streaming subscription services such as Napster and Spotify; video streaming subscription services like Netflix; ad supported music; internet radio; certain digital downloads services, and digital movies rentals from Blockbuster. My slides depict how these and other models could be detrimentally affected by a legal right to hack a TPM for private copying purposes.

Here are just a couple of examples of the problems:

• On demand rent or buy models: If you rent, you pay (say) $3.99 and if you buy, you pay (say) $17.99. If a person could circumvent the TPM that protects the rent/buy model, wouldn’t some people just pay the rental fee and make permanent copies without paying for them?
• A music or movie subscription service that has copy controls that prevents copying: If a person could stream the sound recording or movie and legally circumvent the TPM to make a permanent copy, wouldn’t some people pay a monthly subscription fee and make permanent copies without paying for them?
• Music downloads like iTunes where you buy a song today for $0.99, its TPM free: A person could subscribe to a monthly subscription service and legally circumvent the copy control TPM that prevents copying to make permanent copies. Wouldn’t some people make permanent copies without paying for them?
• Software and gaming: A person could obtain a 5 day trial with an option to buy if the person likes the software or game. However, if a person can legally hack the TPM that limits access for the trial period and which prevents other copying, wouldn’t some people hack the TPM and avoid paying the purchase price to obtain permanent copies?

All of these things could be done without infringing copyright under Michael’s proposals.

Michael said to the legislative committee that private copying is a “user right”. He says if a user acquires content the user ought to have the right and does have the right to hack the TPM to make copies for format shifting and other purposes without the consent of the owner of the copyright – and without paying for the copies.

Michael is wrong that people have or should have a reasonable expectation that they can obtain content for free, or on a limited basis for some reduced consideration, hack the protections rights holders place on the content, and make copies or obtain access they had not bargained or paid for. If a person pays a rental fee, the person should not expect a right to obtain a permanent copy without paying for the permanent copy. If a person pays a monthly subscription fee for temporary access to content streams, the person cannot reasonably expect the right to make permanent copies without paying for them.

If C-32 is amended as proposed by Michael, once a person has legal access to a work, the person could legally hack the TPM protecting the work, legally make permanent copies, and effectively avoid paying for what is purchased. This is an unreasonable proposal. No person could reasonably ask for this broad right. It is unjustifiable and unsupportable. It would reduce investment in digital products and new distribution models. It would result in the loss of revenues and jobs in the digital sector. It would also substantially undermine the Government’s stated goal of enabling e-commerce in digital products in Canada.

Michael’s views about “user rights” confuses the rights a person has in the tangible thing her or she buys with the copyright in the thing. When you buy a song, you do not buy the label. When you buy a movie, you do not buy the studio. When you buy a video game or book, you are not buying the publisher. A person acquires a right to use an object he or she buys. But, the person does not acquire any legal right to make copies that have not been expressly or implicitly authorized by the copyright owner.

The metaphor of “user rights” expressed by the Supreme Court in the CCH case makes clear that copyright rights, and exceptions like fair dealing, are of paramount importance in construing the Copyright Act. But, as the Supreme Court made clear in CCH, fair dealing is only an affirmative defence to a claim of copyright infringement. It is not a concept that provides legal rights that can be asserted against copyright owners or be used to trump authors’ legal rights. “User rights” under copyright provide no basis for claiming that a person who rents copyright content such as a movie or game, or who merely subscribes to view it, has a right to hack a TPM in order to make permanent copies without authorization and payment.

A number of European decisions, in examining the legal inter-relationship between private copying and the use of TPMs, have similarly concluded that exceptions for private copying do not trump author’s rights in their works. In particular, in Europe there have been claims brought against copyright owners of content such as music and movies alleging they have a legal duty to remove TPMs to enable individuals to make private copies. These claims have been rejected in the cases referred to in my slides.

Would an exception for circumventing TPMs for private copying comply with the Three Step Test?

I now turn to the question of whether Canada could create an exception for private copying that permits circumvention of TPMs for such purposes and comply with our obligations under the Berne Convention and WTO TRIPS. These agreements, as you know, require that the Three Step Test be applied to copyright exceptions and limitations. The Three Step Test requires that an exception be a certain special case; that it not undermine the market or potential market for a work; and that it not unreasonably prejudice authors or copyright owners.

The interrelationship between private copying and protection for TPMs was considered by the French Supreme Court in the Mulholland case. A key question in the case was whether French copyright law could allow circumvention of a TPM for private copying. The French Supreme Court stated it could not. It held that a law that prevents rights holders from using TPMs on their products in the digital environment would violate the Three Step Test. Central to its decision was the concern that TPM-free products would promote unlicensed copying. That is a precedent of pretty high authority. The Paris Commercial Court in the Henry v. Warner Bros case expressed similar statements about the need for TPMs in the digital environment.

Would an exception for circumventing TPMs for private copying comply with the WIPO Treaties?

Another question is whether the WIPO Treaties can be complied with by permitting circumvention of TPMs for private copying? Dr. Ficsor also deals with this in his paper that is posted on IP Osgoode’s web site. He suggests that an adequate level of protection cannot take the form of allowing circumvention of TPMs so as to permit everyone to make private copies. The WIPO Treaties require an adequate level of protection. But, how can legal protection for TPMs be adequate if a right to circumvent TPMs for private copying would violate the Berne Three Step Test as the Mulholland case suggests?

Are there international precedents for an exception for private copying, that permits circumventing TPMs, where authors receive no compensation for the unauthorized copying?

I will now address the question of international practice and standards. In particular, I want to challenge Michael’s assertions that there are international precedents for what he proposes. I have already addressed whether there are international precedents for limiting the prohibition on circumventing TPMs to an infringing purpose. I now ask whether any of our trading partners that have private coping exceptions permit private copying to trump TPMs as is being proposed by Michael?

In the EU the answer is no. In the EU private copying is permitted only if it is subject to fair compensation. The scope of any private copying exception must be subject to the Berne Three Step Test. Moreover, Member States have no right to permit circumvention of TPMs to enable private copying. Member states may take measures to enable certain private copying where voluntary measures by rights holders are not in place. Importantly, however, even these measures do not apply to works that are available on demand through an online subscription basis. They essentially apply to CDs and other physical media.

As I already mentioned, Michael says we should look to Switzerland and New Zealand as examples. But neither of them are precedents for what is being proposed. New Zealand, to my knowledge, does not even have a broad exception for private copying. Switzerland permits circumvention of TPMs for private copying. It is a country, which as pointed out before, did not properly implement its treaty obligations. But, even putting that aside, Switzerland compensates its authors and other creators for private copying through a levy. So it is no precedent for Canada given the clear direction that the existing private copying levy on audio-recording media will not be expanded to digital audio recorders (DARs) like iPods and other devices.

Michael has not pointed to any other country that has broad rights of private copying such as those in Bill C-32, a right to hack TPMs for this purpose, and which does not provide authors and other rights holders with compensation for such copying. His proposals, essentially, ask Canadians to chart a new course in violation of our convention and treaty obligations in a way that, when properly understood by Canadians, would be viewed as unreasonable and unjustifiable, and which would seriously undermine the rights of authors and other creators and their ability to exploit and to be compensated for their creative endeavours.

Thank you.

* The talk was edited and augmented for this blog.

** I use the word “rent” in the colloquial sense. The format shift exception does not permit making a private copy where the source copy has been borrowed or rented.  It is unclear whether a download that may be viewed for a limited period is a  “rental” in the legal sense.

For convenience my slides are set out below.

Insight_Slides_on C-32 and TPMs

The questions I discussed were the following:

• Does Bill C-32 properly implement the WIPO Treaties consistent with approaches used by Canada’s trading partners?
• Does Bill C-32 permit circumvention of TPMs to permit copying for fair dealing, educational and other purposes?
• Does Bill C-32 have a flexible framework to permit new exceptions to be made by regulation?
• Can the WIPO Treaties be implemented by limiting protection to circumvention for the purposes of infringement?
• Should circumvention of TPMs for private copying purposes be permitted?
• Are private copying exceptions “user rights” that trump legal protection for TPMs?
• Do other jurisdictions permit an exception for private copying to trump TPMs?
• Would an exception for private copying that permits circumventing TPMs violate the Berne Three Step Test?
• Can the WIPO Treaties be complied with by permitting circumvention of TPMs for private copying?
• Does Canada have any trading partners that have private copying, no levy, and permit circumventing a TPM for private copying?

My slides are set out below.

Insight_Slides_on C-32 and TPMs

Minister Moore stressed the contribution that the copyright industries make to Canada’s economy noting that they “cannot be underestimated, both in terms of stimulating investment and creating jobs”.

He emphasized throughout the speech that the proposed legislation represents a balanced approach, an approach that the Government believes protects the works of creators while recognizing the interests of consumers and Canadians. It is intended to reflect a variety of views expressed during the consultation on copyright policy that was held in last summer.

The Bill is intended to be principle-based, flexible and adaptable to any changes to technology, while ensuring appropriate protections for both creators and users. The modernized legislation is intended to support Canada as it faces the challenges of the digital environment and to enable Canada to take a leadership role in the global digital economy. It is supposed to contribute to an environment that gives Canadians the tools we need to remain creative, innovative, and competitive internationally. It was created to do so in accordance with international standards.

The Bill recognizes that the best way to fight piracy is by targeting those who knowingly enable online infringement. It therefore is intended to give copyright owners new tools to seek damages from these “enablers.” It is also designed to provide tools to creators to protect their investments, to encourage new business models, and to provide certainty for artists and creators to engage in the global digital marketplace with confidence. This includes providing protections for technological measures which are subject to a specific list of exceptions such as encryption research and security testing.

The Bill including the legal protection for TPMs and the making available right are intended to implement the rights and protections of the WIPO Internet Treaties and to bring Canada in line with these international standards. They will allow creators and copyright-based industries to better compete on the international stage. The Bill is also designed to enable Canada to fulfill the Government’s commitment to bring Canada’s copyright in line with those of our G8 trade partners.

The Government decided not to include a graduated response regime similar to what is being implemented in France, UK, New Zealand and elsewhere.

The Bill is also designed to legitimize commonplace private and/or non-commercial uses of copyright material that are currently not allowed or where their status is not clear under the Copyright Act. These uses include posting mash ups on the web or time shifting television programs. It is also intended to expand the existing uses allowed as ‘fair dealing’ by adding education, parody and satire and to enable publically available materials on the internet to be used for educational purposes.

The Bill is also intended to provide other exceptions to clarify the law or to remove impediments to ordinary uses of technology. In this regard, Minister Moore noted that the Bill proposes new exceptions for computer program innovators, limitations on liability for ISPs and search engines, and clarifies that making temporary technical reproductions of copyright material is acceptable.

In answer to questions following his speech, Minister Moore asked Canadians to consider what is in the Bill and to come forward with ideas on how to improve it. He pointed out, however, that there are opponents of copyright reform who “don’t believe in copyright”, who “pretend” to be experts in copyright, but are misleading the public about what it.  According to the Minister:

“…Those people who are out there who’re saying copyright legislation/copyright reform is not good, these are people who are dressing up the fact that they don’t believe in copyright reform at all.  There’s people out there who don’t believe in copyright at all. They just say well Bill C-61, the old copyright legislation, we disagree with these specific revisions.  Well, Bill C-32 we have these specific amendments.  Don’t fool yourself.  These voices that are out there, there’s people out there who pretend to experts that the media cites all the time, they don’t believe in any copyright reform whatsoever.  They will find any excuse to oppose this bill to drum up fear to mislead to misdirect and to push people in the wrong direction and to undermine what has been a meaningful comprehensive year-long effort to get something right.  This hasn’t been done as I said since 1997, three years after I graduated high school.  It’s been a long time.

We need to amend our legislation and those people out there who try pretend that they’re copyright experts and they want to amend copyright in a meaningful way, don’t be fooled by some of these people.  They don’t believe in any copyright.  They don’t believe in individuals’ rights to protect their own creations and when they speak, they need to be confronted.  If it’s on Facebook, if it’s on Twitter or if it’s on a talk show, if it’s in a newspaper, confront them and tell them they are wrong.  Canada from the Hudson’s Bay Company to FTA and NAFTA to the G8 and G20, Canada always has been always will be a trading nation.  Our future and our past and our prosperity has always been dependant on investment into Canada be in compliance with international standards opening ourselves up to the world, welcoming investment and working with the world, not being an outlier in the world, disregarding international treaties like WIPO that we’ve signed, disregarding our obligations to protect foreign investment into Canada, Canadian investments into Canadian businesses.  We need to protect those investments, protect those jobs and make sure that those voices who try to find technical nonsensical fear-mongering reasons to oppose copyright reform, are confronted every step of the way and they are defeated.  And when we do that, this bill will pass and Canada will be better for it.”

Almost immediately following his speech, Prof. Geist, relying upon a second hand source, published a blog suggesting that the Minister had “warned against “radical extremists” seeking to oppose Bill C-32” He then went further suggesting that Minister Moore could have been referring to just about anyone that sought reforms to the Bill including “all opposition parties, consumers, universities, teachers, students, business, and many creator groups are all seeking changes to C-32.”

It is patently obvious that Prof. Geist is misrepresenting who Minister Moore was referring to. Minister Moore was clearly referring to someone, or some people, who fit the following criteria:

• They pretend to be experts in copyright.
• They don’t believe in copyright.
• They don’t believe in individuals’ rights to protect their own creations.
• They are the ones “that the media cites all the time”.
• They “drum up fear to mislead to misdirect and to push people in the wrong direction”.
• They “find technical nonsensical fear-mongering reasons to oppose copyright reform”.

Who might this be? Here are some blogs that might provide a clue as to who Minister Moore was referring to:

‘TPMs’’: A Perfect Storm for Consumers:Replies to Professor Geist

Facebook Fair Copyright of Canada:Replies to Professor Geist

Fear Mongering and Misinformation Used to Slag ACTA

Legends and reality about the 1996 WIPO Treaties in the light of certain comments on Bill C-32

A reply to ACTA critics

Calling out misreporting about ACTA

More hype than facts about ACTA from its critics

Dr. Ficsor is right; Prof. Geist is wrong about the WIPO Internet Treaties

OECD counterfeiting report misinterpreted to support myth of Canada as a low piracy country

The Owens analysis of the Canadian copyright consultations: what are the implications?

Reflections on the liberal roundtable on the digital economy

*After posting this blog, the complete remarks made by the Minster after his speech were posted online. They included as well the following statements:

“There are those that pretend to be for copyright reform. But they don’t believe in actual copyright reform. There are those that are cited as experts by the media endlessly who are not in favour of copyright reform. They favour only weakening legislation, only in gutting tools that would allow those who are actually investing in jobs to have those jobs.”

“But don’t let those some of them are out there, who as I say are cited endlessly by the media, who pretend to be experts on copyright reform, who put up a smiley, shiny, cute face on what is actually a pretty disingenuous campaign to undermine the rights, the property rights of individual citizens, to invest in their creative goods.”

*A video of the Minister’s speech and comments are linked to below.

Part 1

Part 2

In his post, Dr. Ficsor took issue with several assertions made by Prof. Geist about the treaties. Yesterday, Prof. Geist responded to Dr. Ficsor in another blog posting. Prof. Geist starts his new blog by attacking Dr. Ficsor trying to paint him as a lobbyist for rights holders. Anyone who follows Prof. Geist will know that he labels almost everyone he disagrees with as a lobbyist, attempting to demonize and discredit them by association rather than by the views they hold. Prof. Geist goes way over the line this time, however, when he tries to lead his readers to believe that Dr. Ficsor’s opinions about the WIPO Treaties are influenced by work he may do in the copyright area. Dr. Ficsor’s views about the requirements of the treaties have been well documented for over a decade. It is shameful that Prof. Geist would attempt to tarnish Dr. Ficsor’s reputation and iconic standing by asserting that he has “joined up with copyright lobby groups” thus suggesting that his views are not honestly held.

Now, let’s examine the substance of what Dr. Fiscor said and Prof. Geist’s responses. 

1. Dr. Ficsor’s claim: Dr. Fiscor took issue with Prof. Geist’s assertions that Canada has not fallen behind the EU and Canada’s other trading partners by failing to implement the WIPO Treaties. Dr. Ficsor pointed out that such an inaccurate assertion could only be made by someone who is “ignorant about these facts” or “who intend to hide or drastically misinterpret them for some purpose”.

Response by Prof. Geist. Prof. Geist did not respond or take issue with this claim by Dr. Ficsor.

My Comment: Prof. Geist could not respond. Prof. Geist has consistently tried to confuse the concept of treaty ratification with enacting legislation to implement the treaties. When Prof. Geist says “for all the claims that Canada is years behind, the EU ratification arrived today” he wants his readers to believe that the EU member states only now just passed laws to implement the treaties. The fact is, however, that the EU member states had all implemented the treaties long ago to help foster a legal digital infrastructure for its citizens.

The EU enacted a Directive mandating implementation of the treaties in 2001. The member states enacted legislation implementing Directive 2001/29/EC on the dates set out below:

2. Dr. Ficsor’s claim: Dr. Fiscor took issue with Prof. Geist’s assertion that Canada has the flexibility to adopt a “made in Canada approach” to implementing the treaties which does not involve providing legal protection for anti-circumvention tools. Dr. Ficsor stated “the professor’s blog seems to suggest a kind of “made-in-Canada” way of implementation that would consist of not implementing certain obligations under the Treaties”, and in particular, not protecting against anti-circumvention tools.

Dr. Ficsor explained why legal protection for anti-circumvention tools was required under the treaties as follows:

“The allegation that the two Treaties do not require protection against the manufacture and distribution of unauthorized circumvention devices is completely groundless. The negotiation history of the Treaties clearly indicates that, although their anti-circumvention provisions finally used a more general language, they had been based on proposals extending to the prohibition of such activities. However, what is even more important is that the obligation to provide for such prohibition also follows from the text of the relevant provisions themselves of the Treaties. Under those provisions, Contracting Parties are obligated “to provide adequate legal protection and effective legal remedies” against the circumvention of technological protection measures. It could hardly be suggested seriously and without a big amount of cynicism that a Contracting Party is able to provide adequate protection and effective remedies if it only prohibits the very acts of circumvention and leave technological protection measures to their gloomy fate by that.  Such acts are normally performed in private homes or offices where, due to privacy considerations, it would be extremely difficult – or quasi impossible – to apply adequate protection. At the same time, it is possible to build adequate defense line if the manufacturing and distribution of unauthorized circumvention devices and services are also prohibited. Since this is possible and since this is needed for an adequate anti-circumvention protection, it follows from the treaty obligations that this should be applied by the Contracting Parties. The EU regulation is based on this recognition and the regulation is duly applied by the Member States.  The EU has not chosen an imaginary “WIPO-lite” implementation to fulfill certain obligations and neglect others, since there is no such way of implementing the Treaties; it would be equal not implementing them by adopting a ridiculous theory that for some mysterious reasons the basic principle serving as a basis of any serious agreement – pacta sunt servanda – does not apply to them.”

Response by Prof. Geist. Prof. Geist simply asserts that a proposal for expressly protecting anti-circumvention tools was not accepted into the wording of actual treaties at the Diplomatic Conference. As Dr. Ficsor had already pointed, the Diplomatic Conference adopted the requirement that legal protection be “adequate” and remedies be “effective”. Prof. Geist cites an article from Prof. Samulson which purports to describe the history behind the provisions adopted at WIPO. However, Prof. Geist does not attempt to contradict Dr. Ficsor’s assertion that the requirement for adequate legal protection and effective legal remedies for TPMs does not require legal protection for anti-circumvention tools.

My Comment: It is one thing to claim, as does Prof. Geist does, that a specific proposal for the wording of the treaties was rejected at the Diplomatic Conference. It is quite another thing to make the completely unsupported conclusion that Canada “can be compliant with the WIPO Internet treaties without implementing” protection for anti-circumvention tools. It is noteworthy, that Prof. Samulson, the only authority relied upon by Prof. Geist, does not even suggest in the article quoted that the WIPO treaties do not mandate legal protection for circumvention tools. In fact, she concluded “The inclusion of terms like “adequate” and “effective” protection in the treaty will mean that U.S. firms will be able to challenge national regulations that they deem deficient.”

It is telling that in the face of being directly confronted by Dr. Ficsor, the world authority on the interpretation of the WIPO Treaties, that Prof. Geist did not cite even a single authority that supports his position that Canada can implement the WIPO Treaties without providing legal protection for circumvention tools.

The authoritative texts which have interpreted the obligations imposed by the WIPO Treaties all agree that to be adequate and effective, anti-circumvention provisions must prohibit the trafficking in circumvention tools and the provision of services which can be used for circumvention purposes. For example, the WIPO Guide to the Copyright and Related Rights Treaties administered by WIPO[1] states the following in this regard:

“For these reasons, Contracting Parties may only be sure that they are able to fulfil their obligations under Article 11 of the Treaty if they provide the required protection and remedies: (i) against both unauthorized acts of circumvention, and the so-called “preparatory activities” rendering such acts possible (that is, against the manufacture, importation and distribution of circumvention tools and the offering of services for circumvention)… (iii) not only against those devices whose only – sole – purpose is circumvention, but also against those which are primarily designed and produced for such purposes, which only have a limited, commercially significant objective or use other than circumvention, or about which its is obvious that they are meant for circumvention since they are marketed (advertised, etc.) as such”.

Reinbothe and von Lewinski, in their book The WIPO Treaties, [2] are equally unequivocal about the need to include protection against trafficking of circumvention tools and the provision of services which are made available for the purpose of circumventing technological measures:

“…It may be held that legal protection against circumvention is only meaningful and adequate if it also covers circumvention devices and services, the so-called ‘preparatory acts’… the manufacturing and distribution of devices which permit or facilitate circumvention may potentially cause more important prejudice to rightholders than acts of circumvention. A ‘circumvention only’ approach appears, therefore, to be insufficient…The domestic law of Contracting Parties would have to proscribe devices, products, components or the provision of services which are produced or distributed for the purpose of circumventing protection technologies.”

Prof. Jane Ginsburg[3] comes to the same conclusion in rejecting the proposition that the WCT does not require protection against trafficking in circumvention tools:

“Such an inference seems unwarranted, because it would significantly diminish the effectiveness of the prohibition. First, limiting the prohibition to the act of circumvention would mean that copyright owners would need to discover and prove the commission of acts that may often occur in private, at the user’s home. This seems both difficult for copyright owners and undesirable to users. Second, outlawing the device as well as the activity is likely to have a greater impact on the provision of circumvention devices; without the device, less circumvention is likely to occur, and it is more effective to pursue a small number of device suppliers than the large numbers of their customers. Moreover, the formulation “the circumvention” should be read in the context of the sentence in which it appears. An interpretation that disfavors effective protection against circumvention by limiting the prohibited conduct to the sole act of circumvention, rather than encompassing the provision of devices as well, would be inconsistent with art. 11’s direction that member States “shall provide  adequate legal protection and effective legal remedies against the circumvention.”

In recognition of the need to provide rights and remedies against circumvention tools, the international norm of countries that have implemented the WIPO Treaties is to prohibit trafficking in circumvention tools. Countries and territories that have done so include the United States, Australia and Japan. As Dr. Ficsor pointed out, this requirement is also in the EU Directive which has been implemented by EU member states.

Glen Bloom, a well known Canadian copyright lawyer, and the vice-chair of the CBA’s Copyright Technical Committee, expressed the same opinion about the treaties after considering whether Bill c-60, which would not have provided legal protection for TPMs, could have complied with the WIPO treaties:

“‘A plain reading of Articles 11 and 18 of the WIPO Internet Treaties, the definition of “technological measure” and new section 34.02 inevitably raise questions about the adequacy of the protection for technological measures to enable Canada to ratify the WIPO Treaties. In fact, in view of persuasive commentary including in particular the WIPO Guide and legislative developments among Canada’s trading partners, the inevitable conclusion is that Canada’s legislation could not adequately implement its obligations regarding technological measures under the WIPO Internet Treaties without significant amendment to the definition and new section 34.02.”[4]

3. Dr. Ficsor’s claim: Dr. Fiscor took issue with Prof. Geist’s assertions that “the European national implementations show a wide range of exceptions, opening the door to a ‘made-in-Canada’ WIPO approach.”

Response by Prof. Geist. Prof. Geist did not respond or take issue with this claim by Dr. Ficsor.

Dr. Ficsor ends his posting by asserting that Prof. Geist’s views “about the obligations under two WIPO Treaties and about the way the EU Member States have implemented them are groundless and misleading.” There is nothing in Prof. Geist’s reply that should change anyone’s opinion’s on the substance of Dr. Ficsor’s rebukes of Prof. Geist.

[2] Reinbothe and von Lewinski, The WIPO Treaties at  141, 144-145

[3] Ginsburg Legal Protection of TPMs  at  8.

[4] Technological Measures and Rights Management Information October 25, 2005