Protection from the Protectors: Does the Competition Act Provide an Answer to the Misuse of Technological Protection Measures?


McOrmond suggested that this linkage of authorized content and devices may fall within the definition of tied selling: If you are a competitor of the members of the DVD CCA, or for any reason cannot sign on to their contractual obligations, you will not receive the keys to encode your own content or decode content. It should be reviewed by the Competition Bureau to determine whether such contractual obligations should be allowed. Tying the ability to access content encoded with DVD CCA keys requiring a DVD CCA-approved access device seems like a text- book example of “tied selling” under section 77 of the Competition Act. This article attempts to assess this claim. Specifically, it asks whether Part VIII of the Competition Act is capable of addressing these concerns, while permitting the potential benefits that rights holders seek. The argument proceeds in two parts. First, the analysis is contextualized by examining how challenges to the anticompetitive effects of TPMs have been treated in other jurisdictions. Although the details vary, the fundamental themes and issues of competition law tend to be similar around the world. Useful insights can be drawn from a comparative review of the global jurisprudence. Then, the analysis turns to two key sections of the Canadian Act. Sections 77 (Tied Selling) and 79 (Abuse of Dominant Position) may each potentially apply to the conduct of concern. These sections will be examined by testing them against the Apple iTunes ecosystem. A single vendor example will be easier to analyze than an alleged conspiracy. Moreover, the case represents a high-water mark in that Apple has a dominant position in both the content and the device businesses. If the Competition Act can restrain the anticompetitive exclusionary effect of TPMs in general, these facts should provide a suitable test case

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