Locking Out Lawful Users

Locking Out Lawful Users

Carys Craig is an Associate Professor at Osgoode Hall Law School

Michael Geist’s edited collection of essays on copyright reform is being released on October 14th, and you are welcome to attend its launch. This exciting and timely publication, entitled ‘From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda’, contains twenty chapters written by copyright scholars from across Canada. It is to Geist’s credit that he was able to pull this book together on a tight timeline over the summer so that the views expressed therein can have a bearing on the reform process as it continues to unfold. Of course, the speed of this process also reflects a keen sense amongst Canadian copyright scholars that something important needs to be said (and heard) sooner rather than later.

I was honoured to be included as a contributor, and to have this opportunity to add my voice to the chorus of voices expressing concern about latest copyright reform bill, Bill C-32 (the Copyright Modernization Act. My contribution, ‘Locking Out Lawful Users’, explores the proposed fair dealing and other user exceptions, both in their own right and in relation to the proposed anti-circumvention provisions.

Bill C-32 contains several new (or at least newly clarified) exceptions and defences for users dealing with protected works. There is, most notably, the welcome (and long overdue) addition of “education, parody or satire” to the list of purposes that can fall within the fair dealing defence. There is also an interesting new defence for “non-commercial user-generated content” (sometimes referred to as “the Youtube exception”). These exceptions would go some way towards advances the goals of copyright law by making space for transformative downstream uses of protected material.

The problem, however, is that they simply replicate the existing approach to copyright exceptions in Canada’s Copyright Act, adding more categories of potentially permitted uses that are restrictive, piecemeal, and “not easily capable of a remedial, flexible or evolutionary application.”[1] Educational, parodic and other transformative uses have long been recognized as potential fair uses in the United States. Indeed, the need to expressly include these specific exceptions in Canada speaks more to the shortcomings of the Canadian approach to fair dealing (in contrast to US fair use) than it does to the pursuit of a genuine balance between owners and users in the copyright reform process.

Bill C-32 also includes welcome user exceptions for private acts of format- and time-shifting, and making backup copies of lawfully acquired content, with the stated intention of “legitimizing Canadians everyday activities.”[2] While these exceptions are extremely sensible, and once again long overdue, they are also framed in restrictive language, and subject to several provisos, reinforcing the sense that “every tiny exception to the grasp of copyright monopoly has had to be…prized out of…unwilling hand[s].”[3] From a common sense user perspective, it seems obvious that such activities should have been regarded as fair uses in the first instance. Few people unfamiliar with copyright law would have imagined that they were breaking the law when they shot or shared a home video of their toddler dancing to a Beyoncé hit, or recorded a TV show to watch when the kids were in bed. The fact that such uses are currently unlawful again reveals the weakness of Canada’s approach to user exceptions, which Bill C-32 only perpetuates.

Furthermore, the existence of these multiple, technically drafted provisos should raise concerns about the accessibility of the new bill. In an age where copyright affects everyday users carrying out everyday activities, everyone should be able to know and understand the rules by which he or she is expected to abide. Broad, principled rules are far more conducive to general understanding and respect than are narrow, dense and overly legalistic ones.

The most significant shortcoming of Bill C-32 with respect to user rights, however, is the consistent prioritization of technical protection measure [TPM] protection over copyright exceptions. Put another way, this amounts to the prioritization of private ordering over public policy. New user exceptions in the bill are explicitly unavailable where the would-be beneficiary of an exception has circumvented a TPM in order to carry out a permitted act. The fair dealing and user-generated non-commercial content defences do not fare much better even in the absence of an explicit circumvention carve-out. Where TPMs prevent access to a work, would-be beneficiaries of these defences are effectively locked out; circumvention of a TPM in such cases will give rise to liability under the anti-circumvention provisions notwithstanding the user’s lawful intended purpose. Where a work is protected by a copy-control TPM, users may be unable to carry out fair dealings or use the work in the creation of a new one; without access to circumvention services or devices, they will be unable to benefit from the exceptions to which they are entitled.

The anti-circumvention rights established in Bill C-32 are unduly expansive, while the complexity and rigidity of the many narrowly framed exceptions again suggests nothing more than a grudging willingness to make minimal carve-outs from far-reaching prohibitions. Anti-circumvention rights create the potential for zones of exclusion far greater than traditional copyright affords. The bill does not tie circumvention liability to copyright infringement in any way, and it does not contain any general exception for circumventions carried out for the purpose of non-infringing acts, not to mention establishing a mechanism for ensuring that such acts are possible in practice. In this way, Bill C-32 fails to reflect the centrality of fair dealing and other exceptions in copyright law, treating them as marginal elements of the existing system that can be reduced or eliminated to better protect owner interests in the digital environment. In doing so, it threatens to significantly upset the copyright balance established in Canada and articulated by our Supreme Court.

The release of Bill C-32 was accompanied by claims that it is “a fair, balanced, and common-sense approach, respecting both the rights of creators and the interests of consumers in a modern marketplace.”[4] Unfortunately for consumers, users and the Canadian public in general, the pervasive reference to “balance” in this latest round of copyright reform looks a lot like empty rhetoric. With the volume, we will take a step away from this kind of ‘sloganeering’, and a step towards a less partisan and more informed analysis of Bill C-32 and the future of Canada’s copyright system.

[1] Howard Knopf, “Limits on the Nature and Scope of Copyright”, in Gordon F. Henderson (ed.), Copyright and Confidential Information Law of Canada (Scarborough: Carswell, 1994), at 257

[2] Balanced Copyright, Copyright Modernization Act – Backgrounder, <http://www.ic.gc.ca/eic/site/crp-prda.nsf/eng/h_rp01151.html>

[3] Justice Laddie, “Copyright: Over-Strength, Over-Regulated, Over-Rated”, (1996) 18(5) European Intellectual Property Review 253 at 259

[4] Balanced Copyright, News Release, Government of Canada Introduces Proposals to Modernize the Copyright Act, 2 June 2010, <http://www.ic.gc.ca/eic/site/crp-prda.nsf/eng/h_rp01149.html>