Anti-Circumvention Legislation and Competition Policy: Defining A Canadian Way?

Chapter 7

Anti-circumvention Legislation and Competition Policy: Defining a Canadian Way?
Michael Geist

While competition policy in the 1980s and the early 1990s embraced intellectual property as pro-competitive, the past ten years have seen a shift that requires a different framework for analysis. The shift has been toward digital content, the ability to use technological protection measures to limit access and the use of that content, as well as the creation of additional legal protections for such technology (rather than the underlying content). This essay examines the competitive impact of anti-circumvention legislation in light of the introduction of Bill C-60, which would reform Canada’s Copyright Act to prepare for potential implementation of the WIPO Internet treaties. If Bill C-60 is enacted, the Canadian Competition Bureau, which has previously indicated that it will consider intervening in the policy discussions surrounding intellectual property rights, will have an important role to play: the experience in other jurisdictions, most notably the United States, suggests that overbroad implementing legislation can have a damaging impact on innovation and marketplace competition.

The assessment of Bill C-60’s anti-circumvention provisions concludes that the Canadian approach to anti-circumvention has the potential to serve as a model for many other countries around the world. The decision to link anti-circumvention to copyright infringement and the presumed exclusion of legislating against devices is a welcome change from a U.S. approach that has repeatedly resulted in lawsuits and chilled innovation. While the Canadian bill is better than most, there remains room for improvement. The most urgent amendments include the following: explicit protection for the Competition Bureau to act against abusive conduct arising from the exercise of a technological measure; the establishment of a positive, user right to circumvent in appropriate circumstances; and clarification of the meaning and effect of Bill C-60’s service provider provision.

About the Author:

Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair of Internet and E-commerce Law. He has obtained a Bachelor of Laws (LL.B.) degree from Osgoode Hall Law School in Toronto, Master of Laws (LL.M.) degrees from Cambridge University in the UK and Columbia Law School in New York, and a Doctorate in Law (J.S.D.) from Columbia Law School.

Dr. Geist has written numerous academic articles and government reports on the Internet and law, is a nationally syndicated columnist on technology law issues for the and Ottawa Citizen, is the editor of Internet and E-commerce Law in Canada and the Canadian Privacy Law Review (Butterworths) and is the author of the textbookInternet Law in Canada (Captus Press) which is now in its third edition. He is the author of BNA’s Internet Law News, a daily Internet law e-mail service, and maintains a popular blog on Internet and intellectual property law issues.
Dr. Geist is actively involved in national Internet policy development and was a member of Canada’s National Task Force on Spam. He has received numerous awards for his work including Canarie’s IWAY Public Leadership Award for his contribution to the development of the Internet in Canada and he was named one of Canada’s Top 40 Under 40 in 2003. More information can be obtained at www.michaelgeist.ca.

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