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.
Erik Waddell
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.
I believe the response Erik Waddell gave is incorrect. Bill C-32 specifically offers legal protection for “access control” technical measures, something not suggested by or even supported by WIPO.
Looking at the 1996 WIPO treaty language is not appropriate or informative, as that is not the language used in Bill C-32. The Conservatives could make the bill WIPO compliant by using the Bill C-60/WIPO language for TPMs, rather than the Bill C-61/C-32/DMCA language.
Essentially the govt is discriminating against entire fields of endeavors. This means that opensource based companies and users cannot attempt to compete against Apple and Microsoft because no company will license their technology for software that will be opensource.
Essentially this legislation gives unfair control to closed business models and discriminates against everyone else who is not a proprietary megalith.
@Anonymous
It isn’t only Open Source authors who are affected, but any independent software author. Access Control technical measures do nothing to enforce copyright related rights as access is outside of traditional copyright concepts. They do enforce contractual obligations which the larger incumbent software companies will be able to negotiate, but smaller companies (and not just FLOSS) will be locked out of.
This harm to independent software authors, which simultaneously offers nothing to help protect copyright related rights, is why I’ve spent much of my own volunteer time for a near decade opposing this policy.
Note: Added an additional response at http://Fix.BillC32.ca/5164