Privacy commissioner likely to weigh in on digital rights managment issue

Privacy Commissioner Jennifer Stoddart has waded into the debate over copyright reform in agreeing with a public interest group that digital rights management (DRM) protection could be a cause of privacy concerns. Her involvement comes at the urging of the Canadian Internet Policy and Public Interest Clinic (CIPPIC), which wrote her about the consequences it sees in strong anti-circumvention of technological protection measures (TPM) legislation. CIPPIC wrote the commissioner this fall to alert her that legislation could be introduced that would protect DRM technology, such as that being used by Apple Corp. and other online music retailers that restrict the use of music downloads and makes them more difficult to share. DRM has been touted by music industry players as a key ingredient in the growth of the legitimate online music marketplace, and the use of DRM is part of, at least, the model licence agreement that groups such as the Canadian Musical Reproduction Rights Agency Ltd. (CMRRA) are signing with those wishing to sell music tracks online. CIPPIC cautions, however, that DRM has the potential to be a serious privacy problem. CIPPIC writes, "Based on the result of similar initiatives in other countries, particularly the United States, it is no secret that legal protection for DRM can be fraught with danger. The dangers inherent in DRM and laws that protect it include vesting excessive control in copyright industries over how the public can access and use works, denying fair use of copyright works, imposing unfair contract terms on consumers, enabling anti-competitive practices, stifling creation and innovation, and reducing national security by (having a chilling effect on) encryption and other scientific research. In addition to these important dangers, which CIPPIC is addressing in other forms, DRM poses a severe threat to personal privacy." As part of its World Intellectual Property Organization (WIPO) Internet treaty obligations, some have argued that Canada must change its copyright laws to protect DRM, and make it illegal for users to hack TPMs - though not everyone agrees that strong anti-circumvention legislation is needed before Canada can ratify and implement the agreements. CIPPIC, however, is urging the privacy commissioner to adopt a strong stance against an anti-circumvention provision in the current round of copyright law reforms. It writes, "If privacy is to be protected in this critical context, the privacy implications of DRM must be addressed prior to any possible anti-circumvention law being passed. Indeed, the passage of an anti-circumvention law in Canada is not a foregone conclusion. To the extent that the absence of such a law would help minimize incentives for a pervasive uptake of DRM, privacy would be better protected in Canada." The privacy commissioner seems to agree with CIPPIC, at least insofar as she recognizes there are concerns. In a late November letter responding to CIPPIC, Stoddart writes, "We have been interested in the privacy implications of DRM for some time. We would, naturally, have serious concerns about the design and deployment of any technology that facilitated the fine-grained surveillance of individuals without their informed consent. We would certainly have concerns about any commercial enterprise in Canada that deployed privacy-invasive DRM technologies in contravention of the provisions of the Personal Information Protection and Electronic Documents Act (PIPEDA) and the fair information practices underlying it." The letter further notes that the commissioner has been active in similar areas of radio frequency ID tags, computer spyware, and lawful access proposals (Canadian NEW MEDIA affiliate publication Network Letter has been following Canada’s on-again, off-again lawful access details. Please see the Decima Reports archives for background). Since the letter was written, a meeting was held between Canadian Heritage, the commissioner’s office, and Industry Canada. That’s good news to CIPPIC, which says it has been frustrated trying to bring the issue to the attention of the departments responsible for copyright legislation. The commissioner’s office reports as this issue went to press that Stoddart will likely address the committee examining copyright reform legislation. CIPPIC lawyer David Fewer tells CNM, "…When CIPPIC brought these concerns to Heritage and Industry, they were dismissed, saying, ‘Those aren’t copyright issues, those are the privacy commissioner’s - take it up with the privacy commissioner.’ And, that’s what we did." He’s encouraged that the two departments appear to have opened the door to the privacy commissioner, and says other government members are also becoming involved. Fewer cites Marlene Catterall, a Liberal MP who now chairs the Standing Committee on Canadian Heritage as one example of a politician who feels the privacy consequences of legislated protection for DRM is important. That support will be critical in the next weeks since, by all accounts, legislation to change the Copyright Act may be before the House of Commons this spring. Canadian NEW MEDIA has reported several delivery dates for new draft legislation, each of which has been pushed back, but delays in delivering draft legislation to Cabinet for approval won’t last forever. Fewer remains encouraged that the current course of copyright reform can be changed in the meantime. "Of course we have time. The legislation is not there yet, and just because Heritage and Industry manage to duke out a compromise, that doesn’t mean that’s what will actually get passed." Fewer says he’s heard several MPs with backgrounds in education, for example, who are becoming dissatisfied with the direction the government is taking with copyright reform, including a potential extended licensing scheme for Internet materials used in the classroom. While that debate continues, CIPPIC is working to secure the support of provincial privacy commissioners for the position adopted by their federal counterpart. Fewer is pleased with the progress to date, with the exception of Canada’s most populous province. "We think it’s important for the provincial commissioners to get active on this. At this point, most of them who have stated a position say they’ll support the federal commissioner - that they have an interest and they recognize the copyright implications for privacy. And that they’ll be watching with concern and supporting the position of the federal commissioner. Ontario has not so restricted itself. They (the other privacy commissioners) said at this point they’re kind of doing a wait-and-see, but they have been more involved in the past on this issue. They have a bit of a history and expertise on the issue. We are urging Ontario to get more active than it has. And, whether that means publicly active or privately active, I guess it’s up to Ontario. We’ve got no opposition to it being both privately and publicly active on what kind of limitations we should be seeing in terms of copyright legislation and privacy," Fewer says. In October 2002, Ontario’s privacy commissioner released a paper titled Privacy and Digital Rights Management (DRM): An Oxymoron? That extensive document, written in-house by the commissioner’s office, concludes: "The expansion of DRM technologies has significant implications for the privacy, fair use and free expression rights of consumers. Although many companies that use DRM technologies appear to be gambling that consumers will eventually accept some infringement of their rights in exchange for DRM-protected digital music or movies, there is no guarantee that this will happen. Instead, consumers may reach a breaking point and refuse to purchase such products if they feel that their rights are being increasingly violated."

Privacy commissioner likely to weigh in on digital rights managment issue

Broadcast | December 22, 2004

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