One of the main issues facing content creators and copyright owners is piracy. The ease of distribution, combined with the low cost of reproduction of digital works, have led to legitimate fears that content creators and copyright owners are not being properly compensated for their efforts once their works enter the market.

With Canada’s Copyright Modernization Act, brought into force on November 7, 2012, the Copyright Act now contains several strong new provisions for preventing circumvention of and protecting Technological Protection Measures (TPMs) and Rights Management Information (RMI).

Technological Protection Measures. Increasingly, content creators and copyright owners have turned to TPMs to control how their works are accessed and used. TPMs include technology that provides digital locks preventing individuals from undertaking a variety of actions, such as copying, printing or making alterations, or controlling viewing. TPMs often operate alongside RMI associated with copies of works that usually identify the owner or author of the work and define the types of permitted access and/or track usages.

TPMs are by no means invincible. While they have evolved over the years, TPMs have been routinely circumvented by individuals seeking profit or seeking a challenge. As a result, the legality of circumventing TPMs has become a major point of contention.

International initiatives. The contentious nature of copyright issues has led to a series of international reforms. In 1996, the World Intellectual Property Organization (WIPO) member states adopted the World Copyright Treaty (WCT) which, among other things, required members to prohibit circumvention of TPMs. The United States and the European Community implemented prohibitions under the Digital Millennium Copyright Act (DMCA) and Directive 2001/29/EC, respectively. Canada, as a signatory to the WCT, also had international obligations to implement legislation that provided for adequate legal protection and effective legal remedies against the circumvention of TPMs. However, implementation was delayed until recently when the relevant provisions of the Copyright Modernization Act came into force on November 7, 2012.

Canadian legislation. Canadian legislation prohibiting TPM circumvention already existed prior to the Copyright Modernization Act, but only in specific circumstances. For instance, with respect to subscription programming and news feeds, the unauthorized decoding of encrypted channels is prohibited under section 9(1) of the Radiocommunication Act. There may also be criminal liability for TPM circumvention under sections 341.1, 342.1 and 342.2 of the Criminal Code of Canada, which prohibit the fraudulent interception of the function of a computer system. However, in R c Hamel, 2011 QCCQ 11103, [2011] JQ no 12999, a recent case involving circumvention of TPMs in entertainment software for use on Microsoft XboxTM gaming consoles, a Quebec court found that no fraudulent intent had been established and acquitted an accused who modified game consoles for the owners of the consoles in a manner that allowed the playing of pirated games.

TPMs are defined in the Copyright Modernization Act as any effective technology, device or component that (a) controls access to a work; or (b) restricts one from exercising the exclusive rights of the copyright owner, such as copying the work. Under the updated Copyright Act, the prohibitions regarding the circumvention of TPMs are provided under new section 41, and the criminal remedies are provided under the new section 42(3.1).

The circumvention of access control TPMs is prohibited, even if the work was legally acquired. The circumvention of controls restricting the exercise of exclusive rights of the copyright owner is not explicitly prohibited. The distinction may be insignificant in practice since most of today’s digital TPMs have both access and other types of controls. In addition, the offering and marketing of circumvention services or devices (such as software, firmware or chips) used to circumvent access control or exclusive right control TPMs is also prohibited. Where there is a contravention of any of the prohibitions, the copyright owner is entitled to all the remedies that would arise from copyright infringement. However, damages awarded for TPM circumvention may be reduced if the defendant was not aware and did not have reasonable grounds to believe that the acts were in contravention of the provisions.

When circumvention is permitted. The provisions also provide specific exceptions where circumvention will be allowed, namely: law enforcement and national security; reverse engineering for software compatibility; encryption research; verification as to whether a TPM permits the collection or communication of personal information; security testing of computer systems; accessibility for disabled persons; temporary recordings made by broadcasters for technical reasons; and unlocking cell phones. Where the institution is a library, archive, or museum or is educational in nature, the only remedy available is an injunction if the institution is unaware and had no reasonable grounds to believe that the acts contravened the TPM provisions.

Penalties. With respect to criminal liability, the circumvention of TPMs with knowledge and for commercial purposes has the following penalties: (a) if on indictment, a fine of up to $1,000,000 and/or imprisonment of up to five years; and (b) if on summary conviction, a fine of up to $25,000 and/or imprisonment of up to six months.

With respect to RMI, the removal or alteration of such information is prohibited if the person doing the act knows that it will facilitate or conceal any infringement of copyright. Similar to the contravention of TPMs, the copyright owner is entitled to all the remedies that would arise from copyright infringement.

Conclusion. Now that the TPM provisions of the Copyright Modernization Act have come into force, it will be interesting to observe how the provisions will be treated by the courts and the extent to which they will be utilized by copyright owners.

Brian P. Isaac, Toronto
Brian Chau, Toronto (Articling student)