After posting DVDs and TPMs: how often is CSS used?, I asked Tony Clement if he could clarify how Bill C-32 affects DVDs (for a background on DVDs and CSS, see DVDs and TPMs…). His office replied with the following:
- Do you know if CSS would be a TPM?
Bill C-32 implements the international standards set out in the 1996 World Intellectual Property Organization (WIPO) Internet treaties, which require protection of “effective technological measures” used by copyright owners to prevent unauthorized use of their work.
Accordingly, whether CSS, or any technology, would be captured by the TPM provisions would depend on whether it meets the definition of TPM in the bill, specifically whether it effectively protects a work. It is worth noting that courts in other countries have already examined this question (including the US, which found that CSS was an effective TPM). It would be up to Canadian courts to interpret whether CSS is a protected TPM in Canada.
- Do you know if libdvdcss would be illegal under C-32?
Under C-32 it would be illegal to sell or distribute devices that are designed primarily to circumvent a TPM. To determine if libdvdcss falls under this provision, a court would need to determine (i) that CSS is an effective TPM (as discussed in question 1) and (ii) whether libdvdcss is designed primarily to circumvent the CSS TPM.
Director of Communications
Office of the Honourable Tony Clement
While the response doesn’t clear up the issue definitively, I think it’s safe to say that Canadian courts would interpret the TPM provisions as the US courts have. This means that backing up or engaging in fair dealing would be prohibited for 98% of DVDs (see DVDs and TPMs… for how I arrived at this number) under Bill C-32.
I hope that the government will fix Bill C-32 before it is passed by tying the anti-circumvention laws directly to infringement (instead of having a blanket ban with a handful of exceptions like it does now) and removing the distribution restrictions on all circumvention devices as I recommended in my copyright consultation submission. With these changes, Bill C-32 would retain the fair dealing rights Canadians have today for engaging with digital content on DVDs and similarly-encumbered formats, yet it would still provide “adequate legal protection and effective legal remedies against the circumvention of effective technological measures” as required by the WIPO Copyright Treaty that the government wishes to ratify with the bill.