One of the most frequently cited concerns with Bill C-11’s digital lock rules is that they create a two-tier legal framework that is technologically non-neutral. Where content does not have a lock or is in non-digital form, the usual copyright balance applies including fair dealing and consumer exceptions. However, with Bill C-11, once there is a digital lock included with the content, the balance disappears since the fair dealing and consumer exceptions can be overriden. A description of the situation:

The Bill also favours digital lock business models for the sale and delivery of content over unlocked means of dissemination. In the traditional model, copyright holders control the exclusive right to reproduce content onto CDs or DVDs. Once an unlocked copy is created, rights holders cannot control the application of copyright exceptions such as fair dealing. But the Bill creates a different situation simply because a copy of digital content is delivered with a digital lock. This is an economically inefficient interpretation of an Act that is meant to fairly balance the interests of rights holders and users to further the interests of society as a whole.

While consumer groups have been making this case against technological non-neutral copyright for months (and Charlie Angus raised precisely this point in the House of Commons yesterday expressing concern about a “two-tier set of rights”), the above quote is a slightly modified version of arguments by the Entertainment Software Association of Canada, one of the lead proponents of the digital lock rules.

Next month, the Supreme Court of Canada is scheduled to a hear a case between the ESAC and SOCAN over whether downloading a video game is a “communication to the public” under Section 3(1)(f) of the Copyright Act of the music embedded in the game. The ESAC, which finds itself in the role of user of music in this case, argues it is not and expresses concern that to take the alternate approach would “create an extra layer of rights that only applies to the distribution of copies of works.”

The group’s factum to the court addresses the policy issues with a characterization nearly identical to the public concern over digital locks:

The Decision also favours traditional business models for the sale and delivery of content over modern means of dissemination. In the traditional model, copyright holders control the exclusive right to reproduce content onto CDs or DVDs. Once a physical copy is created, rights holders cannot control the delivery of such copies or charge fees for delivery of content by mail or through stores. But the Decision creates a different situation simply because a copy of digital content is delivered over the Internet as a download rather than in physical form. This is an economically inefficient interpretation of an Act that is meant to fairly balance the interests of rights holders and users to further the interests of society as a whole.

In other words, the ESAC supports a two-tier legal framework when it comes to imposing digital locks on its customers, but argues against a two-tier framework if it means its members face of the prospect of increased copyright payments. The answer in both cases is technology neutrality. The ESAC is right that copyright policy should not penalize users by virtue of the means of distribution of the content. Yet the same argument arises in the context of digital locks, where technological neutrality means ensuring that users are not penalized by the inclusion of a digital lock within the distribution of the content such that their rights are lost in the process.