Bill C-32 ± Impacts on the IT Y




 
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Barry B. Sookman
Direct Line: ( 


ail: bsookman@mccarthy.ca

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’ er iew of Presentation

 Sections of Bill C that will be covered:

 ew exceptions to foster ³innovation´ (.
 Computer program interoperability
 ncryption research
 Computer and network security assessment
 emporary reproductions for technological processes (.

 ew private use exceptions (s. .
 ser generated content exception
 ormat shifting exception
 Backup copy exception

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 Government Backgrounder: Clear copyright rules to

encourage innovation. or technology companies, the
bill will include measures to enable activities related to
reverse engineering for software interoperability,
security testing and encryption research, including the
circumvention of 
s for these purposes.

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Interoperability of computer programs
30.61 t is not an Article ( of the C Copyright Directive.
infringement of copyright ³Decompilation . he authorization of the rightholder shall not be
required where reproduction of the code and translation of its form
in a computer program for within the meaning of Article  (a and (b are indispensable to obtain
a person who owns a the information necessary to achieve the interoperability of an
copy of the computer independently created computer program with other programs,
program that is provided that the following conditions are met: (a these acts are
performed by the licensee or by another person having a right to use a
authorized by the owner copy of a program, or on their behalf by a person authorized to do so;
of the copyright, or has a (b the information necessary to achieve interoperability has not
licence to use a copy of previously been readily available to the persons referred to in
the computer program, to subparagraph (a; and (c these acts are confined to the parts of the
original program which are necessary to achieve interoperability. .
reproduce the copy for he provisions of paragraph  shall not permit the information obtained
the sole purpose of through its application: (a to be used for goals other than to achieve
obtaining information that the interoperability of the independently created computer program; (b
would allow the person to to be given to others, except when necessary for the interoperability of
the independently created computer program; or (c to be used for the
make the program and development, production or marketing of a computer program
any other computer substantially similar in its expression, or for any other act which
program interoperable. infringes copyright. . n accordance with the provisions of the Berne
Convention for the protection of Literary and Artistic Works, the
provisions of this Article may not be interpreted in such a way as to
allow its application to be used in a manner which unreasonably
prejudices the right holder's legitimate interests or conflicts with a
normal exploitation of the computer program.´ (emphasis added

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ncryption research
s.30.62 t is not an
infringement of copyright for a
person to reproduce a work or
other subjectmatter for the
purposes of encryption
research if
aa) it would not be practical to
carry out the research without
making the copy;
a ) the person has lawfully
obtained the work or other
subjectmatter; and
ac) the person has informed
the owner of the copyright in
the work or other subject
matter.

s the section needed for ³fair´ encryption research?
³Research´ is broadly construed and includes
commercial research. CCH v. Law Society of Upper
Canada, 2004 SCC  t includes the action ³of looking
or searching, effort to find something´. SOCAN v. Bell
Canada,  CA 
Could the exception be used to copy and reverse
engineer encryption programs used to protect  systems
and networks and transmissions/communications made
using the networks?
Could the exception diminish the tools a company could
use to pursue those who hack its encryption and weaken
a company¶s ability to protect the privacy and security of
 systems, networks and transmissions?
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Computer and Network Security Assessment
s.30.63 t is not an infringement
of copyright for a person to
reproduce a work or other
subjectmatter for the sole
purpose, with the consent of
the owner or administrator of a
computer, computer system or
computer network, of assessing
the vulnerability of the
computer, system or network or
of correcting any security flaws.

s the section needed for ³fair´ security assessments?
s the section limited to ³ethical hacking´ or does it
permit any manner of ³assessing the vulnerability´ of
devices or for correcting any security flaws´.
Could the exception enable reverse engineering of
encryption systems for the purposes of hacking 
networks and systems?
Who¶s consent would be needed in order to carry out
the vulnerability assessment? s this consistent with
the intent of the encryption research exception?
Does the section have the potential to be misused to
enable hackers to undermine security systems?
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Temporary Reproductions for Technological Processes
s..
 t is not an
infringement of copyright to
make a reproduction of a
work or other subjectmatter
if
(a the reproduction forms
an essential part of a
technological process;
(b the reproduction¶s only
purpose is to facilitate a use
that is not an infringement of
copyright; and
(c the reproduction exists
only for the duration of the
technological process.


Article  of the  Copyright Directive
³emporary acts of reproduction which are transient
or incidental [and] an integral and essential part of a
technological process and whose sole purpose is to
enable: a a transmission in a network between third
parties by an intermediary, or (b a lawful use of a
work or other subjectmatter to be made, and which
have no independent economic significance, shall be
exempted from the reproduction right provided for in
Article .´ (emphasis added
Would the section have unintended consequences?
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 ŒNon-commercial´ Œuser-generated content´ (UGC) 
exception
ndustry Canada act Sheet: ³he new bill permits the use of legitimately
acquired material in usergenerated content created for noncommercial
purposes.

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ŒNon-commercial´ Œuser-generated content´ (UGC)
exception
 Could the exception permit individuals to create derivative works or
port computer programs to run under other operating systems or
platforms and to upload the modified code onto the nternet?
 Would the section permit reverse engineering or decompiling of
computer programs, modifying them and uploading the modified
software onto the nternet?
 Would the exception would apply even if the person does not own or
have a license to use the software?
 Could an individual reverse engineer software in violation of a LA
or other agreement including terms prohibiting reverse engineering?
 Could an individual reproduce and modify corporate logos and use
them in disparaging ways? Would a company have any remedy?
 Could an individual reproduce and modify entire websites or
databases? Would a company have any remedy?

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 rould the UGC exception undermine open source 

licensing models?

nder the C exception, could software developers make modification to open
source software and distribute these without respecting the licensing terms and without
infringing copyright?
Copyleft opensource licenses often require modifications that are published in
executable format also publish the source code of the modification.
Would the C exception allow publication and distribution of open source code
without adhering to open source licensing conditions thus undermining use of copyright
to protect open source licensing models? See, ñaco
en v. Katzer  .d 

(ed. Cir. 
User-Generated Content xception (s.29.21) conditions:
ÿ Done for non-commercial purposes
ÿ Source of work is mentioned
ÿ Non-infringing source material
ÿ Use of work does not ha e substantial ad erse effect on
market of source material (source material is free)

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Reproduction for pri ate purposes (format shifting)
ndustry Canada AQ: ³he bill will allow "format shifting.´

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èormat Shifting xception

 Would the exception permit individuals to copy software for any private
purpose?
 Would the exception permit individuals to reverse engineer software?
 Would the exception would permit individuals to make copies of software in
violation of an LA?
 Would the exception apply to individuals who legally obtain software
products, but do not own or license the software?
 Would the exception permit an individual to copy someone else¶s library of
computer programs by accessing his/her computer?
 Would the exception permit an individual to make copies of his/her library of
computer programs for another person?

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Backup copying (s.29.24)
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Computer Programs

s there an overlap
with the C or
format shifting
exceptions?
Why have two back
up exceptions for
computer programs?

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