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: Michael Geist

61 Reforms to C-61, Day 37: TPMs - No Requirement to Unlock for Exceptions

By Michael Geist

Many countries have recognized the danger that combination of DRM and anti-circumvention legislation may effectively eliminate user rights or copyright exceptions in the digital environment.  Creating exceptions is one way to address the issue, but another is to adopt an approach of "with rights comes responsibilities."  In this case, if companies are going to obtain new legal rights for DRM, they must also shoulder the responsibility of unlocking their content when requested to do so by users for legal purposes.  This is a common theme in copyright laws around the world which often identify courts, tribunals or mediators as the source to ensure that rightsholders do not use DRM to eliminate user rights.  Three examples of many:

Italy's Article 71(2) quinquies provides:

The rightholders are obliged to adopt proper solutions, also by means of specific agreements with the associations representing beneficiaries in order to allow the exercise of the exceptions provided for in articles 55; 68, paragraphs 1 and 2; 69, paragraph 2; 70, paragraph 1; 71-bis e 71-quater, on beneficiaries’ specific request and on condition that the beneficiaries have acquired the lawful possession of the copies of the work or of the protected subject-matter or have lawfully accessed to them in order to use them, in accordance and within the limitations pursuant to the above mentioned articles, including the payment of the fair compensation, if due. 

Denmark's Section 75d(1) provides:

The Copyright License Tribunal, cf. section 47(1), may, upon request, order a rightholder who has used the effective technological measures mentioned in section 75 c(1) to make such means available to a user which are necessary for the latter to benefit from the provisions of section 15, section 16(1), section 17(1)-(4), section 18(1) and (2), section 21(1)(ii), section 23(1) and sections 26-28, 31, 33 and 68. If the rightholder does not comply with the order within 4 weeks from the decision of the Tribunal, the user may circumvent the effective technological measure, notwithstanding the provision of section 75 c(1).

Norway's Section 53(b) provides:

Rightholders shall ensure that beneficiaries who have legal access to a protected work, without hinder by an effective technological protection measure, can use the work, hereunder produce new copies, pursuant to sections 13a, 15, 16, 17, 17a, 21, 26-28 and 31.  If the rightholder after a petition from a beneficiary of a section listed above fails to provide access as described in the first paragraph, he can, on the beneficiary’s petition, be ordered to provide such information that is necessary to enable the work to be used in accordance with the objective.

The closest Bill C-61 comes to this kind of provision is Section 41.2(2)(b), which provides that the Governor in Council may make regulations

requiring the owner of the copyright in a work, a performer ’s performance fixed in a sound recording or a sound recording that is protected by a technological measure to provide access to the work, performer’s performance fixed in a sound recording or sound recording to persons who are entitled to the benefit of any of the limitations on the application of paragraph 41.1(1)(a) prescribed under paragraph (a). The regulations may prescribe the manner in which, and the time within which, access is to be provided, as well as any conditions that the owner of the copyright is to comply with.

In other words, the government can require a copyright owner to provide access, but there is no system that gives users the right to demand such access in appropriate circumstances.  Bill C-61 should be amended to provide an independent, accessible method to require companies that use DRM to unlock content in appropriate circumstances.

Full post as published by Michael Geist on August 12, 2008 (boomark / email).