of locks and signs

The Copyright Modernization Bill (C-32) has today passed second reading in the House of Commons and is moving on to committee, presumably to hear testimony about amendments to make sure the bill gets copyright right.

The debate during second reading was, as noted earlier, somewhat confused, but that's understandable because there has been a very organized and relentless campaign afoot to confuse the already complex copyright reform file.

Nowhere is this confusion more apparent than on the issue of legal protection for technological protection measures or TPMs (well, fair dealing gives the TPM issue a good run for its money on the confus-o-meter, but let's leave that for another posting).

The House heard lots of fretting and worrying about so called "digital locks," and how their use and protection will trump and remove both new and old use provisions. Confusing things further, even the Ministers responsible for the Bill occasionally refer to TPMs as digital locks. I've used the same words myself as a short form in conversation.

I think this is an unfortunate misnomer, and a deliberate one encouraged by consumer advocates bent on stripping Canada's laws of legal protection for the choices creator's make about how, and when, and how far to distribute their works.

I actually think of TPMs as signs, not locks. Imposing a technological protection measure on my content - for instance, using computer code to take away the copy and paste function on specific texts - is like a property owner placing No Trespassing signs in their woods. Woods are lovely, dark and deep after all, and it's easy enough for a hiker to not realize she has strayed from public property to private; so the TPM acts as a helpful notice.

Oh, here I was thinking I'd copy and paste this whole article for my friends, but I see now that I shouldn't because it's copy-protected. That must mean the owner doesn't want me to use the whole thing, so I guess I'll just exercise my fair dealing rights and quote from it. Good then.

Much of the fretting and worrying over TPM protection has to do with the idea that "locks" will trump all other rights as we move forward with digital content. NDP digital issues critic Charlie Angus made just that claim in the debate:

"I am at a loss to understand how simply codifying absolute legal protection for digital locks, even when it overrides rights that exist within the bill, would actually make the market rebound and how artists would be able to make a living, because, as we know, anybody can pick any digital lock that exists now if they so choose."

Here's where the "lock" criticisms fall apart for me. Yes, anyone can pick a digital lock - and anyone can take a sledgehammer to a traditional lock as well. So what? When you see a padlock on a gate, or even better, when you see a No Trespassing sign on a gate, you are receiving a message. That message is - you better have a pretty good reason for coming through this gate because you'll have some explaining to do.

Angus' worry seems to be that no amount of explanation will make a difference with TPM protection, but I'm pretty sure that's not accurate. And for help on this point, I refer to IP lawyer James Gannon who has posted a remarkable clarification of this issue on his own blog.

Here are the highlights:

The TPM provisions in Bill C-32 aren’t overly complicated to read. Certainly, they should not be too difficult for the NDP expert on copyright and digital issues to understand. However, given the widespread misunderstanding of the “digital locks” part of Bill C-32, here is a quick summary of the Bill’s TPM provisions:

•A technological protection measure (TPM) is a device that a copyright holder uses to restrict access to or copying of a work (s.41)

•It is an infringement of copyright to circumvent a TPM (s.41.1(1)(a)), provide circumvention services (s.41.1(1)(b)), or provide circumvention devices (s.41.1(1)(c)).

•There are eight exceptions to the circumvention prohibition, including for persons with perceptual disabilities (s.41.16), and the government can enact new exceptions through regulation as needed (s.41.21).

•There are no statutory damages (i.e. “default damages” of $100-$5000 per infringement) for private TPM circumvention (s.41.1(3)). Those found to have circumvented a TPM for private purposes will only have to reimburse the copyright holder for the damage caused by their act of circumvention (s.41.1(4)).

•Large-scale, commercial and purposeful infringement of TPMs is punishable as a criminal offense (s.42(3.1)), except for libraries, archives, museums or educational institutions.

(image courtesy Brian J Matis on Flickr - under a CC Attribution-NonCommercial-ShareAlike 2.0 Generic licence)