In Defence of a Defence - A Demonstrable Legitimate and Non-Infringing Purpose as a Full Defence to Anti-Circumvention Legislation

In this essay, I will argue that making a demonstrable lawful and non-infringing purpose a full defence to copyright infringement by circumvention of a TPM addresses many of the concerns raised by the currently proposed legislation, while avoiding the pitfalls of directly linking anti-circumvention laws with actual copyright infringement. As the ratification of the WIPO Internet treaties is the foremost concern for this legislation, I will begin with a discussion as to how this model can successfully implement the treaties’ anti-circumvention provisions where the Bill C-60 model may have failed. I will then explain why this model strikes a better balance between the rights of copyright holders and the legitimate interests of users. To do this, I will discuss the implications for fair dealing, addressing how the currently proposed provisions interfere with the fair dealing exceptions found in the Copyright Act while this model does not, as well as the more general issue of whether TPMs are capable of interfering with fair dealing at all. I will also address this model’s implications for the new user exceptions in Bill C-32: in particular how this model negates the need for the TPM exemptions to these exceptions currently found at s. 29.22(1)(c), s. 29.23(1)(b), and s. 29.24(1)(c), and why that is a preferable outcome.