Digital Locks?

Bill C-32, the Act to amend the Copyright Act, has a lot of provisions, mostly aimed at balancing the interests of creators of copyrightable content with those who consume (or work with) that content.

Probably the most controversial provision involves ‘digital locks’, i.e. technical protection measures that are designed to prevent people from using the works in ways that the owner does not want. The Act makes it an offence to ‘break’ those locks for any purpose at all.

Some of the attacks on the locks rule have been a bit exaggerated, claiming that there should be no protection — so anyone could break anything at any time. However, some of the defences have seemed to me to be equally exaggerated. There was a letter in the Globe and Mail on Thursday from someone who should have known better, and probably does, essentially saying that without locks, there is no effective protection for copyright.

The right balance in principle seems to me to be that someone should be able to break the locks if the locks prevent him or her from doing what he or she has a legal right to do.

Two arguments against this occur to me:

i) The locks are usually accompanied by some user agreement or terms of licence that prohibit doing what the law might otherwise allow. If the person wishing to use the copyrighted content agrees not to exercise a fair dealing right, for example, then he or she has no such right, and breaking the locks would be improper in principle. My own view is that licensing rights should not be allowed to go that far. Copyright is public law to a large extent, and protects interests beyond those of the creator of the work. The law should limit the ability of people to contract out of their public-interest rights. (One can debate what those limits should be.)

ii) Most people will not have the skills to break the locks. They will rely on people with skills to make the digital tools available. However, if those tools are available, many people, perhaps most people, will use them to break the locks and thus to access and use content beyond what the law allows. In short, there are a disproportionate number of infringing uses of the lock-breaking tools compared to non-infringing uses, and thus the possibility of breaking the locks for non-infringing purposes must be foreclosed by law.

Is this right? Is reason (ii) persuasive? (For that matter is reason (i) persuasive?) Is there some reasonably effective way to permit lock-breaking (and the availability of tools to that end) only for non-infringing uses?

What should be done?

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