Industry Minister Jim Prentice tabled Bill C-61, an Act to Amend the Copyright Act, in June.
If passed into law, Bill C-61 would make it illegal to circumvent or bypass technologies that control access to material protected by copyright. It would also make it illegal to provide, market or import tools designed to enable circumvention.
Though the bill does include exemptions for encryption research and developers working on making software interoperate, some experts say the bill also has serious ramifications for security researchers and software developers.
Therefore, we have posted a petition online asking the government to prohibit the circumvention of technological measures only in cases where the party is circumventing them for the purpose of copyright infringement.
If you sign the petition, you are asking for an amendment to Bill C-61 that would change section 41.1 of Bill C-61 to read: “No person shall circumvent a technological measure within the meaning of paragraph (a) of the definition “technological measure” in section 41 for the purpose of violating the rights of a copyright owner …” and to remove sections 41.1 through 41.21.
As it stands, Bill C-61 would make it illegal to possess these technological measures – regardless of whether you are actually using them to violate copyrights – except in very specific circumstances.
“It errs on the side of making technology illegal as opposed to making behaviour illegal,” said Bob Young, CEO of online publisher Lulu Inc. who founded Linux vendor Red Hat Inc. in 1993. “It’s the equivalent to making screwdrivers and pliers illegal because they can be used to break and enter instead of making the act of breaking and entering illegal”.
Bill C-61 includes exemptions for schools, allowing them to use material posted on the Internet by copyright holders “without an expectation of compensation” and to transmit content to students located off campus. Bill C-61 also includes an exemption for developers who circumvent technological measures for sole purpose of making computer programs interoperable. It also includes exemptions that allow people to remove technological measures for the purpose of reverse engineering, security testing and encryption research.
“We’ve tried to be clear in our exceptions,” said Albert Cloutier, director of the copyright and international intellectual property policy directorate at Industry Canada. “The government believes the (copyright) holders need these new measures to protect their materials in order to give them the confidence to develop new business models and offer more to consumers in a digital environment.”
But the exemptions don’t go far enough, said Brian O’Higgins, chief technology officer of Ottawa-based Third Brigade Inc.
“When you start going down the route of exemptions and then you try to draft language around it, you start to look silly after a few years because the exemption that you thought was nice and good turns out to be very narrow … because technology keeps changing,” he said.
O’Higgins is also spokesman for the Digital Security Coalition, which is lobbying the government to reconsider Bill C-61 over concerns it will put a “liability chill” on researchers who would stop working on network security out of fear being sued or charged.
“Just the fact that there’s some questions around it, that’s enough to scare them off,” O’Higgins said. It would be like the U.S. DMCA, where the exact application of the law gets determined by test cases, which require someone to get charged or sued. “I can’t see an academic standing up and saying, ‘Choose me first as a guinea pig,’” O’Higgins said.
It’s difficult to think of exemptions that take into account every possible circumvention of TPMs that are not intended to infringe copyright, said Michael Geist, a University of Ottawa law professor and administrator of the Fair Copyright for Canada Facebook group.
“The experience in the U.S. has been they have identified exemptions and almost every few years they go through a process to identify more,” Geist said. “A better approach is to say we only want to target cases of real infringement, not these other kinds of activities.”
Geist was referring to the Digital Millennium Copyright Act, which the U.S. government passed in 1998. Like Bill C-61, the DMCA prohibits the manufacture or selling of devices or services used to circumvent technological measures under certain circumstances and includes exemptions for reverse engineering software and encryption research.
Though some critics contend the DMCA discourages research because it’s really the courts who determine exactly what is and what is not legal, Cloutier said the Canadian government has tried to address these problems with Bill C-61.
“We were aware of the DMCA, what it said and what some of the problems were with it,” Cloutier said. “When we drafted (Bill C-61), we tried to ensure that our exceptions would encourage a lot of innovative activities in the high tech sector, including security research and software development.”
