What are Technological Protection Measures?

"Technological Protection Measure" is a legal term defined in proposed Canadian Copyright legislation. Unfortunately, the written definition is very vague, and must be interpreted by the courts. Canadian Heritage Minister, the Hon. James Moore, has shown a reluctance to resolve technical problems with the proposed legislation.


The proposed Copyright Modernization Act defines "Technological Protection Measure" as follows:

"technological protection measure" means any effective technology, device or component that, in the ordinary course of its operation,

  1. 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; or
  2. restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19.

What does "effective" mean?

The first problem is that a the word "effective" is vague. Normally, "effective" means something like: Reliably accomplishes a goal. However, "effective" can also mean something like The policy that is currently in place. Using the first, stronger definition of "effective," TPMs can never exist due to the nature of the Universe. If that is the case, any legislation dealing with them is pointless. With the second, weaker definition of "effective," anything can become a TPM. For example, many printed books have a notice printed in their copyright page say you are not allowed to store it in an information retrieval system. If the courts interpret "effective" such that any piece of paper or sticker becomes policy, libraries (which are arguably information retrieval systems) may become illegal. Even private libraries or bookshelves may be considered illegal (by section 41.1(1) of the same act).

It is likely that effective technology refers to Article 11 of the 1996 WIPO Copyright Treaty and Article 18 of the WIPO Performances and Phonograms Treaty:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

I explain why that clause is self-contradictory (mainly using the stronger definition of "effective") in my submission to the 2009 Copyright consultation.

What does "controls access" mean?

The second problem is that "fixations" can not control access to themselves (weak definition of effective aside). This means that any TPMs have to be implemented in the playback device. Usually, Patent law is used to force the device manufactures to implement DRM if they want to use specific patents to playback the work. Patents are stronger than copyright in that they cover inventions rather than specific implementations (independent development is not a defence). This creates a awkward situation after the patents expire within 20 years, yet the DRM is supposed to "protect" copyright for over 100 years. After the patents expire, there is no "stick" (except for Trademarks (last indefinitely) used by the Licensing consortia). In the case of DVD players, the patents should be expiring shortly. Generic video players will not longer have to implement region coding or button lock-outs if they are willing to forgo the DVD logo. That said, the minister may enact regulations saying Digital video players have to implement DVD DRM anyway .

What are sections 3, 15 or 18 and 19?

Placeholder. Need to look up the Canadian Copyright act.

How do TPMs differ from DRM?

Digital Rights Management tries to to restrict what the end-users do with digital files. Technological Protection Measures are more technologically neutral, and have the potential for far-reaching effects anywhere copyrighted information is handled. One example would be the Macrovision built into every VHS VCR. It is an analog "Copy protection" scheme that is not really DRM, but likely qualifies as a TPM, given some definitions of "effective."

Valid HTML 4.01 Strict Valid CSS!

Edited: March 6, 2014.