The US Digital Millenium Copyright Act (DMCA) uses language similar to that in the proposed Bill C-32 in that it prohibits circumvention of technical protection measures (TPM's) that restrict "access" to a work protected by copyright. A cursory review of US case law interpreting this language suggests that there are two lines of case law developing in the US: one line of cases that interprets "access" restrictively to only prohibit access that does not amount to fair use and one line of cases that interpret "access" broadly saying the if the DMCA intended to exempt "fair use" it would have done so explicitly. Frankly, the first line of cases does seem to fly in the face of the statutory language of the DMCA.
Nevertheless, this division in the US case law probably explains why section 41 of Bill C-32 tries to improve upon the language of the DMCA and defines a TPM as any means that prohibits both: (a) "access" to the work; and (b) restricts the doing of any acts which the copyright owner has the exclusive right to do. Reviewing Bill C-32 with this distinction in mind, it appears that Bill C-32 may in fact preserve "fair dealing" in a rather serpentine manner and introduces a further exemption for "private purposes".
Curiously, Bill C-32 specifically prohibits circumvention to access a work, but does NOT prohibit circumvention of a TPM to exercise the exclusive rights of the copyright owner. Presumably circumvention of a TPM to exercise the exclusive rights of the copyright owner would result in a traditional infringement of copyright (which would also presumably be subject to further statutory exemptions for fair dealing, etc.).
Even more curiously, Bill C-32 later exempts a circumvention of a TPM to access a work from liability for statutory damages (ie. set fines) if the circumvention was undertaken by an individual for "private purposes": section 41.1(3). Consequently, the copyright owner may only seek an injunction and damages or an accounting of profits for such a circumvention. Of course, if the circumvention was simply to access the work and was undertaken for "private purposes", it's doubtful that there will be much in the way of damages or profit. It's also unlikely that injunctions would be sought in such cases given the costs involved unless the work embodies a valuable trade secret.
Unfortunately, "private purposes" is not defined. Frankly, "private purposes" seems broader than "fair dealing" and one wonders why they did not simply use the phrase "fair dealing" since that is already well-defined in the case law and fairly narrow in Canada.
Of course, Bill C-32 also prohibits offering services or selling devices whose primary purpose is to either access a work or to allow the user to exercise the exclusive rights of the copyright owner. It grants copyright owners the right to sue for an injunction and/or damages if their TPM's have been or "could be" circumvented by such services/devices. One then has to wonder if "fair dealing" and access to a work for "private purposes" have been effectively preserved in Bill C-32 in the serpentine manner described above, how individuals are supposed to exercise those rights without the available tools. I'm still working on that one...
