Clara Klein is a JD candidate at Osgoode Hall Law School and currently enrolled in the course Law & Social Change: Law & Music, in Winter 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice.

The dissolution of Parliament on March 25th has led the Copyright Modernization Act (Bill C-32), the third attempt at Canadian copyright over the last decade or so, to die on the Order Paper.  The issues surrounding Bill C-32 remain, however, and this includes ongoing debate over the prohibition of circumventing Technical Protection Measures (TPMs).  Meanwhile, the online entertainment industry is increasingly moving toward cloud-based content.  It will be interesting to see whether a cloud-based entertainment industry will appease concerned user advocates when a fourth copyright bill is introduced.

While advocates for user rights have claimed that (Bill C-32) did not uphold the balanced copyright objectives of the legislature and unreasonably prohibited them from breaking digital locks for non-infringing purposes, authors stand to suffer significant economic consequences if TPMs are circumvented.  In the midst of the rapidly changing landscape of the online entertainment industry, however, are user concerns over TPM circumvention warranted when they have unlimited access to the cloud?

Among the hotly contested provisions of Bill C-32 were those surrounding the prohibition of circumventing TPMs, which would make it illegal for anyone to break a digital lock (a mechanism that regulates access to or the ability to reproduce copyrighted works) on a copyrighted item.   In the education sector, student concerns have included the restrictions to fair dealing these provisions would impose when using digital educational resources, such as electronic course packs and textbooks.  Other user concerns have included, for example, the proposed illegality of TPM circumvention for making a backup copy of a purchased hard-copy CD or DVD, or media file.  Where users were concerned about damage to or loss of purchased copies of creative content, it was argued that the provisions found in Bill C-32 should have been amended to allow users to break digital locks when circumvention was not done for infringement purposes.  This seems at its face to be a reasonable request, however, whether or not the private copies are kept solely for personal use would be impossible to monitor, potentially undermining the overall purpose of the provisions.

In the name of user-creator balance, some TPM protection is merited.  Many online entertainment business models, namely subscription streaming sites such as Spotify, Rdio, or Netflix, allow users to access streamed content at any time with a subscription.  Others offer free ad-based streaming services.  These models, which provide users with extensive access to content, rely on TPM enforcement for their economic viability (and the compensation of creators) by ensuring that users don’t turn streams into permanent copies they did not pay for.  The importance of digital locks to these businesses is clear, and in these cases user concerns surrounding circumvention seem unwarranted:  since users are granted unlimited access to content stored online, often from various devices, why would streaming site users need to break digital locks?

Unlimited download models are also on the horizon.  Apple Inc., for instance, is currently in talks with record labels to allow iTunes users unlimited downloads of purchased music.  Unlimited downloads would provide users with accessibility similar to streaming, since a permanently stored backup of their download could be accessed from as many Apple devices as desired (eg. iPod, iPad) or downloaded again if users lose or damage their copies.   This would arguably make the circumvention of TPMs for non-infringing purposes significantly less pressing for iTunes users, as a permanent backup is provided for them.

In the wake of sites such as iTunes working towards decreasing or eradicating the use of TPMs by allowing unlimited copies to buyers, and with the rising popularity of subscription and ad-based streaming sites, online entertainment is becoming increasingly accessible and convenient for users.  In the entertainment industry, then, the legality of legitimate TPM circumvention should become less of a pressing concern in the next incarnation of copyright reform, at least for cloud-content consumers.   What effect this will have on Canadian copyright law is yet to be seen, however one thing is plain: the rapid shifts in online entertainment business models are currently running circles around the legislature in refining the role of TPM enforcement.

Posted in Copyright, copyright reform, Digital Downloads, Digital Locks, Internet, Internet Sharing, Law & Music Course Topic, Music Industry, Music Industry, Secondary (ISP) Liability, Technology