Technological Protection Measures and the Copyright Modernization Act

An important aspect of Bill C-11 defines a new scheme for technological protection measures (TPMs). The aim is to assist copyright owners in protecting their works against piracy, which is laid out in proposed section 41 of the Bill. Briefly, TPMs, also known as digital locks, refer to any effective technology, device, or component that controls access to a protected work or limits copying of protected works. In accordance with proposed subsection 41.1(1), a user would infringe copyright in a protected work by circumventing a TPM associated with that work even if the intended use of the underlying work would not constitute copyright infringement (emphasis added). It is not clear whether the amendments are intended to cover TPMs that are designed solely to control market segmentation (eg regional coding in DVDs). There has been significant opposition to the TPM provisions, especially from commentators who view them as inconsistent with other provisions of Bill C-11. For example, the Bill would enhance user rights by creating new exceptions for consumers to make back-up copies, allow format shifting, and time shifting for later viewing. However, TPM provisions would make it illegal for consumers to circumvent TPMs in order to exercise these rights. On the other hand, some argue that TPM technology is an essential element of a thriving digital media marketplace that allows businesses such as Spotify to emerge and ultimately benefits consumers. In the case of Spotify, TPMs serve the purpose of restricting people from downloading music they are streaming online and enable a successful e-commerce business model, as consumers who wish to obtain a copy of a track must purchase a copy. The Canadian TPM provisions have been criticized mainly for penalizing conduct by consumers who are not circumventing TPMs to infringe copyright, but rather to enjoy products they have purchased. By contrast, New Zealand implemented an innovative solution in using flexible language to distinguish between copyright infringement and legitimate use. In The Copyright (New Technologies) Amendment Act 2008, New Zealand created provisions that allow certain individuals to offer circumvention services and, by enabling them to be lawfully supplied with circumvention devices, to exercise a permitted act. It will be interesting to observe how the TPM provisions are enforced in Canada and their effect on e-commerce. Summary by: Sumaiya Sharmeen