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

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.

For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.

* Typo corrected Oct 26.

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8 thoughts on “Turning up the rhetoric on C-32’s TPM provisions”

  1. John Tucker says:

    Since you seem to disagree with Mr. Geist here is a very specific example for you. I use Ubuntu Linux on my laptop. I regularly use my laptop to play DVD’s. It is my understanding that in order to do this I need to break the digital lock on my legally purchased DVD’s. According to Bill C32 this will make me a criminal for do so.

    I also make backup copies of my DVD’s so if/when my kids make a disc no longer playable I can burn a new disc. My understanding is that this will also be illegal under Bill C32.

    If this is not the case please explain how Bill C32 does not make me a criminal for doing two simple things, playing a DVD with Linux and make a backup copy so I do not have to purchase the same disc over and over again?

  2. Alexis says:

    Thank you for the clarification. It is important to be assessing the bill on the facts not on speculation.

  3. Thank you for the comment. As I noted in my blog, Bill C-32’s criminal provision only applies to a person who violates the anti-circumvention provisions of Bill C-32 “for commercial purposes”. In neither example would you be doing anything for commercial purposes so they would not be criminal under C-32.

  4. Kyle says:

    Thank you for this article. There seems to be more blogs these days from people leaning towards the “anti-propertizing-expression” side of the scale than the “pro-propertizing-expression” side of the scale. As an amateur musicologist and current law student who worked in the music industry, I sympathize with both sides of the debate and I very much appreciate your blogs.

    As far as I am aware, no pundits have outlined the grey areas in the Bill that will have to be interpreted by the judiciary. However, the legislature purposefully uses vague language for contentious areas of bills in order to get them enacted. I would argue that the Berne 3 part test is an example of this in the international context.

    Since legal protection of TPMs is a contentious issue, I am sure the legislature is creating some vagaries in this part of the Bill. For instance, the courts will most likely have to clarify the difference between “access” and “copy”. Most people copy in order to access. So, which is paramount, access or copy? What if the copy is incidental, such as RAM copying? I would guess the answer would determine if the circumvention is legal or illegal.

    I am not an advocate for pundits devolving into adversarial dialogues – which seems to be happening quite a bit with Bill C-32, especially from the politicians – but I am an advocate for proper information. In areas where there is not an answer, especially purposefully so, it would be beneficial to the public if pundits outlined those areas instead of using them as battlefields for adversarial debates.

    If you know of any articles that outline the areas of Bill C-32 that will have to be clarified by the courts, I would be much obliged if you directed the public to them. Regardless, thank you for the information you have supplied to us. It is very appreciated, at least by me.

  5. Jeff Power says:

    Does this also mean that the blind could import anti-circumvention tools so that they could exercise the exception they’ve been granted?

  6. Nothing would prevent an individual from importing a circumvention tool. Others including not for profit entities can also import circumvention tools to help the blind.

  7. Chankama says:

    Barry, you said in one of your responses that Bill C-32 (and now C-11) only criminalizes DVD circumvention on Linux if done for “commercial purposes”. Now, what about civil penalties? Even if no criminal sanctions are applied, can’t they still be sued for monetary damages? Thanks.

  8. There are no statutory damages for circumvention for personal purposes. Only actual damages, if any, would be recoverable.

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