Incorrect statements on C-32 from Honourable Tony Clement's staff?

Denver Gingerich asked Tony Clement some questions, and received a reply from Erik Waddell, Director of Communications, Office of the Honourable Tony Clement. I believe the reply to be incorrect. In it Erik references the WIPO treaty definition of TPMs, something which was included in C-60 but not in C-61 or C-32. Bill C-32 contains the USA DMCA's definition of technical measures.

I don't know if this is deliberate misdirection to make people think C-32 is an implementation of the two WIPO treaties, or whether people haven't actually noticed just how far C-61/C-32 diverged from WIPO concepts and adopted the WIPO rejected position put forward by the USA.

Copyright has always been about the activities that one needs permission from a copyright holder to do once they have access to a work. It has never before contemplated the concept of access.

The US was the first country to diverge from many hundreds of years of copyright law by adding legal protection for access controls into their DMCA. This isn't surprising given the USA only joined the International consensus on Copyright in the late 1970's, and thus didn't have much institutional memory to work with. This radical rewriting of the concept of copyright has caused considerable harmful unintended consequences. The fact that it is a radical rewriting of copyright law has gone largely unnoticed by policy makers and non-technical copyright holders who have been duped into thinking that "access controls" are a legitimate tool to protect existing copyright related rights.

While technical measures can be legitimate and useful tools to be used by copyright holders to protect contracts and e-commerce, they are not a legitimate tool to protect copyright itself.

A basic knowledge of technical measures documents how TPMs can't protect traditional copyright related rights. Technology can be used to limit access to a message to authorised persons, but no technical measure can ever exist to stop an authorised person from doing an unauthorised activity. That is a legal issue which will always be a legal issue, not a technological one.

Since Erik relied on WIPO language rather than C-32 language, his response on whether DeCSS would be prohibited under C-32 isn't correct. It doesn't matter if it is an ""effective technological measures" used by copyright owners to prevent unauthorized use of their work", which is the WIPO/C-60 language.

What matters is whether the measure "controls access to a work, to a performer’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner". In other words, any access control authorized by the copyright holder is covered. This clearly covers DeCSS, with my interpretation being that this tool used to offer interoperability is prohibited to be used as well as distributed under C-32.

There are some who want to interpret 41.12 (Interoperability of computer programs) as covering these activities, but I don't think it will.

It should be noted that CSS itself exists as a technical measure to protect the contracting terms set out by the DVD Copy Control Association. It is a contractual technical measure, not a copyright one. It should be obvious to those who respect the rule of law and the different legal jurisdictions in Canada that these contractual terms should be protected and regulated under provincial contract law, not inappropriately under federal "Copyright" law.