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SECTION 41: TECHNOLOGICAL PROTECTION MEASURES

September 2019

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THE RISE OF THE INTERNET

Y2K! THE END IS NIGH!

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THE RISE OF THE INTERNET

©?

WIPO

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THE WIPO COPYRIGHT TREATY

Article 11: “Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention.”

THE WIPO COPYRIGHT TREATY

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TECHNOLOGICAL PROTECTION MEASURES (TPMs)

s. 41

2012 END OF DAYS!

TECHNOLOGICAL PROTECTION MEASURES (TPMs)

“Any effective technology, device or component” that controls access to a work or that restricts any activity, such as copying, that violates the rights of a copyright holder” (s.41).

TPMs:

Can control the uses of a work

Can control access to a work

“Digital lock” = TPM

Canada updated its Copyright Act to add support for Article 11, but this took until 2012. They did it with the introduction of “technological protection measures” (or TPMs) in section 41 of the Act. The definition is: “any effective technology, device or component” that controls access to a work or that restricts any activity, such as copying, that violates the rights of a copyright holder. [Visual: s 41 definitions][popout to section 3 module]. To reiterate: a TPM can be used to control the uses of a work, but it can also be used to control ACCESS to a work. You may have heard the term “digital lock,” which is a more general term used to describe TPMs. Now that we’ve decided what a digital lock is in the Copyright Act, we need to understand what happens when someone breaks one or gets around it.

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THE CIRCUMVENTION OF TPMs

s. 41

Circumvention

Descrambling

Decrypting

Avoiding

Bypassing

Removing

Deactivating

Impairing

Most of section 41 creates rules around the circumvention of TPMs, which the Act defines as descrambling or decrypting a work, or doing things that “avoid, bypass, remove, deactivate or impair” the TPM without the authorization of the rights holder.

There are 9 sub-sections related to TPMs in the Copyright Act. These define what acts of circumvention are prohibited, and provide a few situations where circumventing a technological protection measure is permitted.

Probably most importantly, section 41.1 states that no person may circumvent a TPM, offer services whose primary purpose is circumvention, or make, import, distribute, sell or rent any technology or device primarily intended to circumvent TPMs. In general, then: you can’t circumvent TPMs.

This prohibition isn’t universal, but the limited number of exceptions allowed in the Act make it pretty close. In fact, you cannot circumvent a TPM for the purposes of fair dealing, which are outlined in section 29 of the Act.

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THE CIRCUMVENTION OF TPMs

What acts of circumvention are prohibited?

s. 41.1

No person may:

Circumvent a TPM
Offer services whose primary purpose is circumvention
Make, import, distribute, sell or rent any technology or device primarily intended to circumvent TPMs

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CIRCUMVENTION EXCEPTIONS

If you are in law enforcement, working for the purposes of national security

You need to get pieces of software to interoperate with one another

You are engaged in research related to encryption technologies

You need to prevent software from collecting personal information

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Yep. There are only seven.

The circumvention exceptions are limited to seven very narrow cases. Here are the reasons you can circumvent a technological protection measure:

If you are in law enforcement, working for the purposes of national security

You need to get pieces of software to interoperate with one another.

You are engaged in research related to encryption technologies, which are often used to build and implement TPMs

You need to prevent software from collecting personal information, or verify that it does not collect personal information

You have perceptual disabilities or provide support services to people with perceptual disabilities, in a case where the TPM impairs the accessibility of content

You are broadcasting a copyright-protected work and the rights-holder has not given you a TPM-free way to do the broadcast

You need to circumvent a TPM on radio equipment in order to get access to a telecommunications service

This limited range of exceptions for circumvention is controversial.

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CIRCUMVENTION EXCEPTIONS

You are broadcasting a copyright-protected work and the rights-holder has not given you a TPM-free way to do the broadcast

You have perceptual disabilities or provide support services to people with perceptual disabilities

You need to circumvent a TPM on radio equipment in order to get access to a telecommunications service

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