Separating copyright fiction from facts about C-32’s TPM provisions

Earlier this week Prof. Geist wrote an opinion piece in the Toronto Star in which he purported to separate “copyright facts from fiction”. His opinion piece, Separating copyright facts from fiction, followed by another blog post this week, The False Link Between Locks and Levies, are two in a series of blog posts and opinion pieces written by him recently that purport to expose as inaccurate statements made about Bill C-32 by various individuals and organizations. See: Responding to ACTRA: Group Calls C-32 a “Disaster” and Proposes Six Part Fix; Copyright Fear Mongering Hits a New High: Writers Groups Post Their C-32 Brief; In Search of A Compromise on Copyright; EU: ACTA Digital Lock Rules Don’t Cover Access Controls.

Unfortunately, Prof. Geist himself fails to accurately separate fact from fiction when it comes to explaining Bill C-32. As examples are his assertions about legal protection for TPMs. Prof. Geist continues to contend that the legal protection of TPMs in Bill C-32 is not required by international law and in particular the WIPO Internet Treaties. In particular, he repeatedly and inaccurately asserts that:  

• The legislative history and international practice related to the WIPO Treaties demonstrates that Bill C-32  is more stringent than what the WIPO Treaties require because (i) there is no treaty obligation to protect access-control TPMs; (ii) there is no treaty obligation to prohibit the manufacture and distribution of circumvention tools; and (iii) the treaties can be complied with by prohibiting circumvention only when it is for an infringing purpose and by permitting circumvention of TPMs and trafficking in circumvetion tools for any other purpose including making private copies and to engage in other “consumer rights”.
• The “Bill C-32 model is one of the most restrictive approaches in the world” .
• Most of the world does not protect TPMs in the robust way C-32 does.
• Bill C-32 provides more extensive  protection for TPMs than does the DMCA.
• A leaked EU document related to ACTA shows that access control TPMs do not need to be protected and are not protected in the EU.

I previously pointed out Prof. Geist’s inaccuracies on the subject of TPMs including the inaccurate assertions made above in various blog postings including here, here, here, here, here, here, and here. I have not been the only person to do so, however. Dr. Mihaly Ficsor, the Assistant Director General of WIPO at the time the treaties were negotiated, has also written several papers criticizing Prof. Geist’s opinions on the minimum requirements necessary to comply with the WIPO Treaties. Prof. Geist disagreed with Dr. Ficsor’s views in his paper “The Case for Flexibility in Implementing the WIPO Internet Treaties” published in From ‘Radical Extremism’ to ’Balanced Copyright:’ Canadian Copyright and the Digital Agenda .

In a comprehensive paper just published entitled “TPMs and Flexibility (’The Ability of Bending Without Breaking’) – Why Should the TPM Provisions of Bill C-32  Protect Access Controls and Prohibit ‘Preparatory Acts”, Dr. Ficsor responded to Prof. Geist, fully rebutting all of the assertions summarized above as well as other claims made by Prof. Geist about the WIPO Treaties including its history and the international practices concerning its implementation.  Prof. David Vaver, in introducing Dr. Ficsor’s paper on IP Osgoode, says, “The paper restates Dr Ficsor’s views that Bill C-32 correctly includes both forms of control in its TPM provisions and deals comprehensively with Professor Geist’s criticisms.”

Dr. Ficsor’s paper, contains a summary of his conclusions in which he highlights the reasons that Prof. Geist’s claims about the WIPO Treaties and Bill C-32 are not accurate:

(1)   Prof. Geist does not pay sufficient attention to the key interpretation source of any treaty provisions; namely to their plain language (the ordinary meaning of their terms). . . .[I]t may be deduced from this key source of interpretation alone that

(i)     the Internet Treaties’ TPM provisions cover all categories of TPMs and not only some of them; thus, they apply to both access-control and copy-control measures – contrary to M. Geist’s allegation that they do not apply for access-control measures;

(ii)   no adequate protection may be provided for TPMs as prescribed in the Treaties without establishing a defense line already in the stage of so-called “preparatory acts” – contrary to M. Geist’s allegation according to which it is sufficient to simply prohibit the very acts of circumvention (in the stage of which alone there is no real hope anymore for such protection);

(iii)  an adequate, rather than more than sufficient, level of protection requires appropriate norms to guarantee the applicability of exceptions to copyright justified by relevant public interests; this, however, requires cautious regulation duly balancing between the various interests and it cannot take the form of simply providing direct free access for any beneficiaries of any exceptions in any possible format by eliminating the applicability of any kind of TPM – contrary to Prof. Geist’s allegation according to which the purpose of the application and protection of TPMs, and through it, the adequate protection and normal exploitation of copyright, could be achieved also by allowing the circumvention of TPMs for anybody in order to directly enjoy any exception (for example, a “private copy” exception by each member of the huge Internet population, and in fact anybody who wants at all a copy) or to get access to works otherwise (for example, in order to receive freely any online communication of works citing the fact that such acts are not directly controlled by copyright).

(2)    Prof. Geist insists on flexible interpretation and implementation of the TPM provisions, and alleges that those who do not agree with him – such as me – are the advocates of inflexible interpretation and implementation. The truth is that everybody – including myself, as I have clearly stated – is of the view that the TPM provisions offer flexibility. The difference between us is only that, while Prof. Geist – as he quite clearly states – is in favor of an unlimited flexibility, myself and others are of the view that the requirement of adequate protection sets limits in this respect.

(3)   The “preparatory work” (“negotiation history”) of the Treaties confirms the interpretation reached on the basis of the plain language of the TPM provisions in the sense indicated above. During the preparation of the Treaties, there were animated debates, in certain stages of which there were some delegations which had doubts about the need and justification of TPM provisions. However, contrary to Prof. Geist’s suggestion, it is irrelevant from the viewpoint of the interpretation of a unanimously adopted text requiring adequate protection of TPMs that previously there were some delegations which at that time were not yet ready to support such protection by the Treaties. More importantly, in the debates, again contrary to what Prof. Geist suggests, no delegation made any proposal or comment to the effect that access-control TPMs should be excluded from protection (the comments aimed at taking care of the applicability of certain exceptions, but it is a different thing than just allowing general and direct free access to digital contents by denying protection for the measures controlling regulated access that is also normal in the traditional analogue world). Furthermore, it also transpires from the preparatory documents and the reports that, where there were debates regarding “preparatory acts” (circumvention-defeating devices, etc.), those debates mainly – nearly exclusively – concerned the definition of devices to be prohibited and not the general scope of protection in the sense that it should also extend to the protection against certain “preparatory acts.” Thus, Prof. Geist’s allegation is unfounded regarding the general scope of the requirement of adequate protection; there was no understanding whatsoever according to which access-control TPMs would be excluded from the treaty obligations or that adequate protection was regarded possible without providing it already in the stage of “preparatory acts.”

(4)   The “subsequent practice” of countries party to the two Treaties implementing the TPM provisions indicates that Canada’s major trading partners have duly implemented the treaty obligations as outlined above (not limiting protection to copy-control TPMs, but equally applying it to access-control TPMs and also prohibiting relevant “preparatory acts”). Prof. Geist suggests the contrary. His examples covering certain developing and “transition” countries and countries which have not acceded yet to the Treaties, along with extremely few isolated other cases, are not suitable to justify his position.

(5)   The consistently applied international provisions on the interpretation of treaties do not list views expressed in legal literature as relevant separate sources of interpretation. Nevertheless, all the authoritative sources of legal literature based on a truly thorough analysis do agree that the Treaties’ TPM provisions cover both access-control and copy-control TPMs and that in order to provide adequate protection it is necessary to prohibit “preparatory acts.” Prof. Geist tries to present some other literary views collected from all kinds of sources about which he believes that they may support his contentions. In connection with this, two comments are justified. First, not all of those literary sources are truly suitable to serve as “witnesses of prosecution” against Bill C-32, since they do not necessarily state what M. Geist would like to prove. Secondly, with minimum efforts, one can collect and present a number of scholarly views to support any kind of legal position – and also a number of scholarly views to support exactly the opposite position. Therefore, what may only be relevant at all is what follows from truly authoritative sources and – in close connection with this – what kinds of legal analyses and arguments the views expressed are based.

Dr. Ficsor also demonstrates that the so-called “leaked” EU document relied on by Prof. Geist erroneously describes EU law as it relates to protecting TPMs. Dr. Ficsor says: “Very briefly: if such an analysis were “leaked” let us say to the European Court of Justice… it would declare it to be completely groundless and being in head-on crash with the acquis communautaire”.

Prof. Geist consistently misinterprets the WIPO Treaties to support his policy views that Canadian copyright reform should provide virtually no legal protection for TPMs. His policy proposals on TPMs provide  illusory protection for artists or creators. His proposals would not fulfill the policy objective of enabling artists and creators to protect their works in a way that supports innovative business models and allows them to be paid for their creative efforts and investments. Not surprisingly, as Dr. Ficsor authoritatively documents, Prof. Geist’s proposals do not provide adequate legal protection or effective legal remedies against the circumvention of TPMs and clearly would not comply with the requirements of the WIPO Treaties or the practices of Canada’s trading partners.

For more information about the Copyright Modernization Act or Bill C-11 or copyright reform, see Change and the Copyright Modernization Act.