Thank you.
Good evening.
In my role as Microsoft Canada's chief legal officer, I'm committed to working with government and other interested parties to help fashion the best legal and policy frameworks possible to build a productive, healthy, and safe Canada.
It goes without saying that copyright reform in Canada has been long in the making. Bill C-11 is the fourth attempt to amend the Copyright Act since 2005.
It also goes without saying that copyright law reform is critical to bringing Canada's laws into the 21st century. In addition to implementing the rights and protections of the World Intellectual Property Organization Internet treaties, we need a new framework that allows businesses to compete and Canadians to realize their potential.
Bill C-11 provides this framework. In Microsoft's view, it will provide appropriate protections to artists, creators, and other innovators. It will facilitate the emergence of new products, services, and distribution models, and it will promote the interests of educators and consumers. In short, the bill will modernize Canadian copyright law in a fair manner that deters those who would disregard the rights of creators, while striking a careful balance with the interests of users.
As the copyright reform process has demonstrated, balancing the rights of creators with the interests of users is a difficult exercise. I suspect that almost all stakeholders, including Microsoft, could identify elements of Bill C-11 that they do not like.
However, the time has come to move forward. As a result, in the interests of seeing copyright reform in Canada come to fruition, I will limit my detailed comments to the TPM provisions and a small number of technical fixes necessary, I believe, to achieve the legislative intent behind the bill.
Microsoft is of the view that Bill C-11's approach to technical protection measures—that is, a general rule against circumvention of access controls, subject to exceptions—is appropriate.
To begin with, it is most important to recognize that Bill C-11 does not prohibit circumvention of copy controls. Once a consumer lawfully obtains a copy, subject to any limitations imposed by contract, the consumer is entitled to do anything that is permitted by the fair dealing provisions or another exception.
Rather, the prohibition on access controls ensures that people who want to take advantage of a fair dealing exception lawfully acquire, through purchase or licence, a copy of the work. This ensures some measure of compensation for creators in much the same way the fair dealing provisions operate today in respect of non-digital works.
Second, the multiple exceptions to the general rule against circumvention of access controls reflect a careful balancing between the rights of creators and the interests of users. Trying to accommodate all potential legitimate uses in the legislation would create large loopholes for pirates and other bad actors to avoid liability. The same concern about loopholes justifies creating a relatively strict ban on devices. To allow trafficking in circumvention devices would make it too easy for bad actors to create and sell devices that are used for illegitimate purposes.
Third, if a legitimate concern about TPM overreach arises at some time in the future, the broad regulation-making authority found in Bill C-11 will enable the government to create new exceptions to the general rules against circumvention of access controls and use of circumvention devices.
The exception process provides government with flexibility to address, among other things, the use of TPMs to improperly restrict competition in the aftermarket sector, or to adversely affect fair dealings for news reporting, commentary, parody, teaching, or research.
The government also retains the power by regulation to require owners of copyright-protected work to make their work accessible to people who are entitled to the benefit of an exception. In short, the TPM provisions ensure that there will be an appropriate balance between the needs of creators and users, both now and in the future, if unintended consequences are identified or as new technologies emerge.
Moving now to technical fixes, Microsoft's view is that Bill C-11 requires limited revisions. In particular, the wording of the new “exceptions to infringement” provisions should be revised to avoid what we expect are potential unintended consequences. Most significantly, the exceptions are not bound by a requirement that the dealing with the work be fair.
The exceptions of most concern to Microsoft are interoperability of computer programs, proposed section 30.61; encryption research, proposed section 30.62; and security, proposed section 30.63. In each case, a simple technical fix is available.
Specifically, the exceptions could be made subject to a requirement that the applicable activity be fair. The factors to be used to assess what is fair would be the same factors identified by the Supreme Court of Canada in the CCH decision in connection with fair dealing: the purpose of the dealing, the character of the dealing, the amount of the dealing, alternatives to the dealing, the nature of the work, and the effect of the dealing on the work.
Finally, I would like to conclude by thanking the committee for providing Microsoft with an opportunity to make these remarks.
I look forward to any questions, if we have that opportunity.