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Competition Act vs Copyright Act: conflict in proposed changes.

From: Russell McOrmond <russell _-at-_>
To: No DMCA in Canada <canada-dmca-opponents (at)>
Date: Tue, 28 Aug 2001 00:02:45 -0400 (EDT)

(Copy to my MP and the canada-dmca-opponents forum)

  I spent part of my time this last weekend while visiting Montreal
reading the current Competition act. <>
  This was added to my previous "light reading" of the current Copyright
Act, NAFTA Chapter 10, parts of AIT, the Copyright "reform" process
discussion papers...

  I will be trying to use what I understand from the Competition Act in my
copyright submission and in related activism in a few ways.  I am not a
lawyer, and would appreciate any comments on these specific sections
and my small summaries:

  - Section 9 indicates that if 6 residents of Canada file a complaint,
then an investigation should be started.

  There is currently an "An Appeal for support" in relation to the status
of Microsoft in Canada
  I urge anyone reading this to read the materials there, and to submit
information requests to the Competition Bureau to try to encourage
information on this case to be released.

  I have already made a submission to the Competition Bureau
<> in relation to DVD CCA.  While I
received a reply indicating that my "complaint regarding the DVD Copy
Control Association has been forwarded to the Civil Branch of the
Competition Bureau for action.", I have not received any further

  I will post any further feedback I receive on either of these, and call
on anyone reading this to make their own submissions to the Competition
Bureau as well as the Minister of Industry and your own MP.  We need to
get involved and very political!

  - Section 32 indicates that "the exclusive rights and privileges
conferred by one or more patents for invention, by one or more
trade-marks, by a copyright or by a registered integrated topography" are
not excused to be anti-competitive, and that the courts may order many
different things.  This may only relate to domestic privileges as
paragraph 32.(3) seems to suggest that foreign treaties/conventions/etc
trump this section, although I'm not sure how this limitation works.

  It does speak of acts which "limit unduly the the facilities for
transporting ...supplying, storing or dealing in any article or commodity
that may be a subject of trade or commerce" which seems to speak to
regional encoding and whether it is illegal to limit ones ability to move
DVD's from one country to another.

Note: This was all already considered by (or submissions made to) the
Australian Competition and Consumer Commission
   The Commission has requested the Australian subsidiaries of United
   States film companies to explain why their regional restrictions on
   DVDs should not be deemed a breach of the Trade Practices Act 1974. The
   restrictions are maintained under the Regional Playback Control (RPC)
   system that splits the world into six distinct markets.
   Australian consumers are currently suffering from an international
   cartel that restricts their access to digital versatile discs (DVDs).
   The cartel, headed by major film studios in agreement with the
   manufacturers of DVD players, has divided the world into regions.
   The Australian Competition and Consumer Commission today advised
   consumers to exercise caution when purchasing a DVD video player
   because of the restrictions that limit their ability to play imported

  - Section 45 speaks of "conspiracy, combination, agreement or
arrangement" which seems to relate to cartels such as the DVD CCA

  - Section 77 deals with "exclusive dealing" and "tied selling", and I
will argue that with DVD's that the purchase of a DVD movie seems to be
"tied" to the direct or indirect (via purchasing of a DVD player)
purchasing of a license from the DVD CCA for the Content Scramble System.
Competition is clearly reduced as the "exclusive dealing" of requiring
such a license removes from the unrelated DVD-player market any player
based on Free Software which by its nature involves the full disclosure to
the public of the source code and thus cannot contain claimed trade

  While the case is obvious in the situation of a Free Software player
which cannot comply with a DVD CCA license agreement, the problems that
exist with any cartel and a third party "player" producer still exist for
those player producers who do have the legal ability to comply with the
DVD CCA license agreement.

  - Sub-Paragraph 78.(1)g indicates as part of the definition of
"anti-competitive act" the "adoption of product specifications that are
incompatible with products produced by any other person and are designed
to prevent his entry into, or to eliminate him from, a market;".
  The current "war on Free Software" from Microsoft and other promoters of
the interpretation of copyright as "intellectual property", including the
members of the DVD CCA, will clearly involve this sub-paragraph.

  - Section 82 and 83 speaks of "foreign judgements" and "Foreign laws and
directives" and after a ruling on the above issues in relation to specific
applications of the anti-circumvention clauses of the US's DMCA such as
DVD CSS and proprietary e-Book formats may be used as a method to ensure
that the US's DMCA is not enforceable in Canada.

  - Section 125 suggests that the Commissioner of Competition to make
representation to the Copyright board in how proposed changes will affect 
competition. It suggests that the Commissioner can do this on his own
initiative or by request of the board, but I don't currently know how to
suggest, as a citizen in Canada, that this representation should be made.

  When I returned from the weekend, I noted some references to proposed
changes to the competition act. I have not had time to read and fully
understand this, but bill C-23 has had first reading and has wording in
the summary such as:


which links to:


(3) No order shall be made under this section that is at variance with any
treaty, convention, arrangement or engagement with any other country
respecting patents, trade-marks, copyrights or integrated circuit
topographies to which Canada is a party.


  This to me reads as if these temporary monopolies on information will be
able to be used as legal justification to not give evidence to a judge/etc
during an inquiry.

  If I have read this wrong, and I hope someone will confirm I have, it
seems to me to continue to be getting way out of hand with the
interpretation of copyright being some form of property, where this
(supposedly temporary, but with huge loopholes) government granted
monopoly on an idea is being granted higher status than even real property
has been.

 Russell McOrmond, Internet Consultant: <>
 Free Sklyarov Oppose DMCA in Canada! (C) reform process.... My submission...

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