Canada's Own Justice Department Worried That Digital Locks Provision Is Not Constitutional
from the open-to-challenge dept
In our post game analysis of Canada’s new copyright law, we noted the surprising number of good things in there. But, still, much of the focus (quite reasonably) is on the really awful “digital locks” provision, which has many similarities to the US’s anti-circumvention clause in the DMCA, and similar copycat DMCA-like provisions around the globe. There is one piece of the DMCA and the digital locks portion of the C-11 bill which has simply never made any sense to me at all: it’s that circumvention of “technical protection measures” (generally, DRM) breaks the law even if the circumvention was to make a legal copy of something. It has never been explained why such a provision cannot be limited to cases where the tools are used to infringe. When you make such a broad restriction against circumvention, you lock up plenty of perfectly legal uses of content and (potentially even worse) open up an opportunity to deny people access to things in the public domain — creating the potential for a perpetual copyright via DRM.
And now, according to some government documents that Michael Geist obtained using an access to information request, we discover that Canada’s own Justice Department appears to have worried that the digital locks provision — when not tied to actual infringement of content — was itself unconstitutional. While the analysis actually covers an earlier version of Canada’s copyright reform effort, the digital locks provisions are still quite similar, and clearly do not address the constitutional concerns the Justice Department raised.
At the very least, this certainly opens the door for a constitutional challenge to the provision. Either way, I’m curious, for the various copyright system defenders we have in the community here, if anyone can take a stab at why it makes sense to have anti-circumvention rules apply even in cases where no content is actually infringed? Some of us would really like to know…