The Honourable Tony Clement

Minister of Industry
235 Queen Street
Ottawa, Ontario KIA OH5
Room 818 Fax: 613-992-0302
Justice Building
Ottawa, Ontario
KIA OA6
Tel: (613) 992-2919 The Honourable James Moore
Fax: (613) 995-0747
angusc@parl.gc.ca Minister of Canadian Heritage
15 Eddy Street
Gatineau, Quebec KIA OMS
~titumaJ Fax: 819-994-1267
~cJtiptUm
60 Wilson Ave, Suite 202
Timmins. Ontario
P4N 2S7
Tel: (705) 268-6464
Fax: (705) 266-9125

As you well know, the New Democratic Party has been a consistent advocate of the
need to update Canada's copyright regime. We have stated our willingness to work
with the government on moving forward with balanced copyright legislation that
responds to the realities and needs of Canadian creators and consumers in this
second decade ofthe millennium. To this end, I am writing you regarding our
party's growing concern over the proposed digital lock provisions in the Bill C-32.

Much of the public concern over C-32 relates to the unbalanced approach being
Member of Parliament for
taken with regards to digital locks. By failing to ensure that works containing
Timmins-James Bay digital locks are subject to the same access rights and exemptions as works in the
Depute de
non-digital realm, the government is creating a two-tiered level of rights for
Timmins-Baie James
consumers and educators. Instead of legal certainty, Canadian citizens will face
arbitrary limitations on their legal rights of access.

Piece 818
Minister Moore's comments that such concerns reflect "radical" or "extreme"
Edifice de la Justice
Ottawa (Ontario) viewpoints must be challenged. The fact that Minister Moore made these comments
KIA OA6 while defending Canada's need to meet international trade obligations could create
Tel.: (613) 992-2919
Telec.: (613) 995-0747 the mistaken perception that the digital lock provisions of C-32 are necessary in
angusc@parl.gc.ca order to comply with existing international treaties. Nothing could be further from
the truth.

&m6titumaJ It is simply not credible to defend such an unbalanced approach as being necessary
~cJtiptUm to bring Canada into compliance with WIPO and the Berne Convention. If this were
P.O. Box 276 the case, the government would be able to show that it has vetted the digital lock
20 Duncan Avenue South
Kirkland Lake, Ontario
P2N 3H7
Tel: (705) 567-2747
Fax: (705) 567-5232
 provisions to prove they are consistent with the three-step test as embodied in
Article 9(2) of the Berne Convention, Article 13 of the TRIPS Agreement and
Article 10 of the 1996 WIPO Copyright Treaty.

I believe the government will be unable to produce evidence that these onerous
digital lock provisions are the result of existing treaty obligations. To this end, I am
Room 818 making a formal request that you seek an opinion from WIPO regarding the issue of
Justice Building specific exemptions laid out in Bill C-32 and whether or not extending these
Ottawa, Ontario
KIA OA6 exemptions to materials encoded with TPMs would be consistent with international
Tel: (613) 992-2919 obligations.
Fax: (613) 995-0747
angusc@parl.gc.ca
The exceptions in Bill C-32 include: fair dealing (Section 29), the creation and
dissemination of non-commercial user-generated content (Section 29.21),
eo.w.,tihunaf reproduction for private purposes (Section 29.22), fixing signals and recording
programs for later listening and viewing (Section 29.23), the making of back-up
~odptUm
60 Wilson Ave, Suite 202
copies (Section 29.24), certain educational uses (Sections 29.4, 29.6, 30.1-5),
Timmins, Ontario certain archival copying (Section 30.21), reproducing computer programs for
P4N 2S7
Tel: (705) 268-6464
purposes such as compatibility (Section 30.6), copying for the print-disabled
Fax: (705) 266-9125 (Section 32.01).

While the New Democratic Party lauds the codification of these exemptions, we
note that they are essentially limited to the hard copy, non-digital world. They are
limited because the legal protection for TPMs (Technological Protection Measures)
trumps any rights that would otherwise be afforded to consumers. Section 41 of the
Act lays out legal protection for digital locks (TPMs) with a very narrow window of
exemptions. Those exemptions are only for purposes such as law enforcement
(Section 41.11) and computer program interoperability (Section 41.12).

There are no exceptions for consumers who circumvent TPMs for fair dealing,
format shifting, time shifting, or the making of private copies. Thus Bill C-32 offers
Member of Parliament for
rights that the consumer will not be able to exercise. These provisions make a
Timmins-James Bay mockery of the claim that the bill is balanced or pro-consumer.
Depute de
Timmins-Baie James
In terms of existing treaty obligations, does the right to impose digital locks
supersede domestic rights defined in copyright legislation? Clearly not. The
proposed exemptions provided in C-32 for formation shifting or fair dealing easily
Piece 818
meet the exemption tests ofWCT, the WPPT and the Berne Convention.
Edifice de la Justice
Ottawa (Ontario)
KIA OA6 These are rights defined and recognized by precedent. Digital locks however, are
TH:(613) 992-2919
Telec.: (613) 995-0747 not guaranteed copyright rights, they are simply enforcement measures. At the
angusc@parl.gc.ca most, TPMs may be thought of as adjuncts to exclusive rights, thus they cannot
trump actual rights guaranteed by law.

eo.w.,tihunaf The WIPO treaty does not, in any way, limit the ability of Parliament to craft
~odptUm "Made in Canada" legislation that reflects a balanced position on digital locks and
P.O. Box 276 legal-use exemptions.
20 Duncan Avenue South
Kirkland Lake, Ontario
P2N 3H7
Tel: (705) 567-2747
Fax: (705) 567-5232
 Canada would certainly not be breaking any new ground by attempting to balance
these rights, For example, on June 10,2010, WIPO's Standing Committee on
Copyright and Related Rights released the results of a questionnaire on limitations
and exceptions in Member Countries. 1 Thirty-one Member States responded that
they had TPM provisions, while six stated they did not. Of these, nineteen states
Room 818 "indicated that in their national laws, at least in some cases, provided mechanisms
Justice Building to ensure that prohibition of circumvention of TPMs does not prevent the
Ottawa, Ontario
KIA OA6 beneficiaries of copyright limitations and exceptions from exercising them. "
Tel: (613) 992-2919
Fax: (613) 995-0747
angusc@parl.gc.ca
More specifically, the WIPO questionnaire asked, "Do limitations and exceptions
prevail over the prohibition to circumvent TPMs?" Sixteen countries were reported
as communicating to WIPO that "in their national laws, limitations and exceptions
eon.,tihunaJ prevail over the prohibition to circumvent TPMs, " and one country, Poland,
~C'tiptUm
reported that the protection against circumvention does not apply ifTPMs are
60 Wilson Ave, Suite 202 circumvented to allow lawful use.
Timmins, Ontario
P4N 257
Tel: (705) 268-6464
Treaty language clearly states that limitations may be supported as long as they "do
Fax: (705) 266-9125 not conflict with a normal exploitation of the work" (Article 10 of the WCTf
In fact, the treaty goes further and states (Article 10) that all signatory countries,
including Canada, may, "carry forward and appropriately extend into the digital
environment limitations and exceptions in their national laws which have been
considered acceptable under the Berne Convention. Similarly, these provisions
should be understood to permit Contracting Parties to devise new exceftions and
limitations that are appropriate in the digital network environment. "

There is nothing in the treaty suggesting that the freedom granted in Article 10 does
not apply to the WCT Article 11 TPM right. 4 Indeed, since TPMs are not rights at
all, but merely enforcement measures to rights, it is absurd to suggest that there can
be fewer exceptions to an adjunct to a right than exceptions to the right itself.
Member of Parliament for
Timmins-James Bay Resolving the issue of exemptions for digital locks will be key to resolving the
Depute de
debate that has developed around Bill C-32. Therefore I point you to the analysis
Timmins-Baie James
provided in the book "The WIPO Treaties: 1996" (Tottel Publishing 2007) by Jorg
Reinbothe and Silke von Lewinski, where, on page 146, paragraph 27, it is written
that the WCT "contains no obligation to protect technological measures in areas ...
Piece 818
where limitations and exceptions to the rights exist under domestic law and have
Edifice de la Justice
Ottawa (Ontario) thus permitted by law the use of the protected works. "
KIA OA6
Tel.: (613) 992-2919
Telec.: (613) 995-0747
angusc@parl.gc.ca

eon.,tihunaJ
~C'tiptUm
P.O. Box 276
20 Duncan Avenue South
Kirkland Lake,Ontario
P2N 3H7
Tel: (70S) 567-2747
Fax: (70S) 567-5232
 In the following paragraph, they add: "The link contained in Article 11 WCT
between the protection of technological measures against circumvention and
limitations of an exception to the rights is, therefore, rather strong."

This view is backed up in the comprehensive 2003 study "WIPO Study on

Limitations and Exceptions of Copyright and Related Rights in the Digital
Room 818 Environment, " by Professor Sam Ricketson the leading scholar on the Berne
Justice Building Convention and the WIPO treaties. In the study, he makes the following
Ottawa, Ontario
KIA OA6 observation regarding TPMs: "Whether exceptions and limitations are provided
Tel: (613) 992-2919 under national laws to the protective measures required by Articles 11 and 18 [of
Fax: (613) 995-0747
angusc@parl.gc.ca the 1996 WIPO Treaties J is therefore a matter entirely within the Contracting
States' discretion. ,,5

&m6ti1uenaJ I have taken the steps to reference these works so that you can be reassured that
~CJtipWJ.n Canadians who raise questions about the unbalanced implementation of digital lock
60 Wilson Ave, Suite 202 provisions are not pushing "extreme" or "radical" views. In fact, they are very
Timmins, Ontario much within the mainstream regarding international implementation of these
P4N 2S7
Tel: (70S) 268-6464
treaties.
Fax: (70S) 266-9125
Indeed, if there is a case for any "extreme" behavior in the present debate it would
be the decision of the government to use C-32 to pursue an agenda that goes well
beyond the norms established by WIPO signatories.

As it stands now, Bill C-32 is a flawed piece oflegislation and will face increasing
opposition because of its one-sided approach to digital locks. It is clear that either
the government has applied a faulty understanding of international treaty
obligations or is looking to use these existing treaties as a cover to pursue a specific
political agenda.

Either way, the New Democratic Party will challenge provisions that would create a
Member of Parliament for
two-tiered set of rights with arbitrary limitations on citizen's use of legally-
Timmins-James Bay accessed works.
Depute de
Timmins-Baie James
Nonetheless, I would prefer to address these issues in a manner that would restore
public confidence in the copyright legislative process. This is why I am making the
formal request that you write to WIPO and seek its opinion as to whether Canada
Piece 818
would be in non-compliance with the WCT and WPPT if the exemptions laid out in
Edifice de la Justice
Ottawa (Ontario) Sections 29.21, 29.22, 29.23, 29.4, and 29.6 in Bill C-32 were granted to digital
KIA OA6 products under TPM. I also request that you forward my letter in your
Tel.: (613) 992-2919
Telec.: (613) 995-0747 correspondence with WIPO.
angusc@parl.gc.ca

The government cannot reasonably refuse to get an opinion from the agency that
administers the very treaties the government claims are tying its hands. Once we
&m6ti1uenaJ have determined whether the exemptions granted in C-32 can be applied to the
~CJtipWJ.n
P.O. Box 276
20 Duncan Avenue South
Kirkland Lake, Ontario
P2N 3H7
Tel: (705) 567-2747
Fax: (705) 567-5232
 digital realm, parliamentarians will have the tools needed to work through the
details of this legislation to ensure that an updated copyright regime responds to the
needs of Canadian creators and citizens.

Room 818
Justice Building
Ottawa, Ontario
KIA OA6
Tel: (613) 992-2919
Fax: (613) 995-0747
angusc@parl.gc.ca

Charlie Angus, MP
Timmins - James Bay
~titmtwf
~CJdptio.n
60 Wilson Ave, Suite 202
Timmins, Ontario
P4N 2S7
Tel: (705) 268-6464
Fax: (705) 266-9125

Member of Parliament for

Timmins-James Bay
Depute de
Timmins-Baie James

Piece 818
Edifice de la Justice
Ottawa (Ontario)
KIA OA6
TeL: (613) 992-2919
Telec.: (613) 995-0747
angusc@parl.gc.ca

~titmtwf
~CJdptio.n
P.O. Box 276
20 Duncan Avenue South
Kirkland Lake, Ontario
P2N 3H7
T@I:(705) 567.2747
Fax: (705) 567-5232