CNM Newsmakers

Technological protection measures and "effective remedies": how much is enough? Canadian Heritage recently released a second research paper with respect to technological protection measures, and how to protect those in compliance with our treaty obligations. Following is an edited excerpt from the paper discussing the level of sanction necessary before Canada can be said to have "effective remedies" against tampering with them. The full paper is located here. The WCT and WPPT do not mandate whether implemented legislation must include civil or criminal sanctions in order to meet the "effective remedies" requirement. As discussed above, this affords substantial leeway as to how WIPO obligations may be fulfilled. Canada could therefore choose to limit its sanctions to civil remedies of the sort traditionally available to copyright litigants, such as injunctive relief, compensatory damages, punitive damages, or statutory damages. Alternatively, Canada could introduce quasi-criminal provisions to the Copyright Act through an anti-circumvention or anti-device measure. Another option would be to amend the relevant Criminal Code, making circumvention a computer crime. A combination of any of the above remedies is also a possibility. Some possibilities make more sense for anti-circumvention measures, while other possibilities make more sense for anti-device measures. One of the chief conceptual difficulties in devising a scheme of effective remedies is the fact that the act of circumventing a TPM is usually distinct from the act of infringing the copyright it seeks to protect. In the context of civil sanctions, it is unclear what the appropriate remedy should be for circumventions unrelated to infringement since it is unclear whether any damages would be suffered. Presumably, some form of statutory damages would therefore be made available. It is unclear what goals such a sanction would achieve other than serving as a specific or general deterrent. Given that the entire impetus of the relevant provisions of WCT and WPPT is to provide effective remedies to copyright owners whose TPMs have been undermined (at least it is in the civil context), it is unclear the extent to which non-remedial sanctions are appropriate. In any event, such a remedy is an unlikely choice given that this study will suggest that anti-circumvention measures cannot be justified unless they are tied to infringement. Where the circumvention is tied to infringement, a different kind of conceptual problem arises. Given that the victim of a circumvention that results in infringement is already entitled to remedies pursuant to copyright law and, in many instances, under the law of contract (pursuant to a licence), what need is there for an additional sanction? It has been suggested that sanctions be directed at the level of commercial rather than individual circumvention. One further consideration is the impact that criminal sanctions may have on the development of innovative technology. The potential stigma of a criminal charge may act to discourage capital flow from innovative technology and may deter new and important forms of computer programming, such as the development of open-source software. It could also prevent high quality researchers from coming to Canada. All of the above considerations lead to the suggestion that criminal sanctions ought to be avoided. Although they have the salutary effect of requiring more onerous proof of an intent to infringe and ought therefore to result in fewer legal actions, such provisions are subject to misuse, often resulting in a chilling effect on various important forms of social participation.

CNM Newsmakers

Broadcast | June 25, 2003

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