Fair for Who? In Favour of Digital Lock Exceptions for Canadian Archives

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Sabrina MacklaiWritten by, Sabrina Macklai, IPilogue Senior Editor and J.D. student at the University of Toronto Faculty of Law (Class of 2023).

 

Bill C-11, or the Copyright Modernization Act, was brought into force in November 2012. It introduced a number of changes to Canada’s Copyright Act, including the expansion of the fair dealing exception to cover use for education purposes. In addition to this change, Bill C-11 introduced a new treatment for technological protection measures (TPMs) or digital locks.

TPMs are digital rights management tools that control access and restrict the use of copyright-protected digital material. These tools include access control measures, such as passwords, paywalls, registration keys, and encryption software, which restrict access to a work. They also include copy control measures, such as read-only works, download blocking, and copy blocking, which restrict what can be done with a work.[1]

In order to meet Canada’s international obligations as a signatory to the World Copyright Treaty, Bill C-11 included an amendment which prohibits the circumvention of TPMs installed on a work such as a performer’s performance fixed in a sound recording, even if the work was obtained legally. This was done after immense pressure from the United States to include these anti-circumvention rules, even though many were decidedly negative about this legal reform.

Bill C-11 legally permits circumventing a TPM in only a few narrow circumstances. These include exceptions for law enforcement, reverse engineering for software compatibility, encryption research, and computer security; these situations do not apply to regular archival uses. As follows, intended end-uses that would otherwise fall under fair dealings exceptions may be restricted due to prohibition of TPM circumvention.

Archives should be granted an exception to the prohibition of circumventing TPMs. As critics of the reformed Copyright Act believe, the anti-circumvention aspect of the current legislation severely hinders users’ rights and thus goes against the intention of the Canadian Copyright Act to balance copyright holder and users’ statutory rights.[2] If all creations were protected with TPMs, as is possible, user rights essentially become irrelevant.

As Jean Dryden, an expert in archives, states, “archives should be allowed to acquire and apply tools to remove such measures, so they can fulfil their public interest mission.” Archives need to examine the material to see if the content fits within their collection and doing so may require circumvention of TPMs. In order to preserve materials, the circumvention of TPMs may be necessary, especially when preserving audiovisual content that is in older, perhaps obsolete format.

This becomes further complicated when TPMs exist on works with expired copyright protections. In such cases, works which technically are within the public domain and therefore ought to be freely available for use and engagement are rendered inaccessible due to the presence of a (legally) unbreakable TPM.

There has been much debate on how to approach the legality of circumventing TPMs. The Canadian Library Association believes that the most obvious solution would be amending section 41 of Bill C-11 to add “for any infringing use” to the current definition of the term “circumvent”. By including this phrase, users’ rights are protected, and copyright owners are still protected from their content being used by commercial entities without their permission. However, this lends itself to further grey area as “infringing use” is ambiguous.

Instead, archival institutions should be granted exceptions to circumvent TPMs, comparable to those granted to law enforcement and national security activities. Other jurisdictions have adopted similar solutions. For example, New Zealand’s Copyright (New Technologies) Amendment Act grants “qualified persons”, such as librarians and archivists, the ability to circumvent a TPM on behalf of a user who wishes to carry out a permitted act. Furthermore, New Zealand’s Copyright Act makes it explicitly clear to copyright holders that issuing a TPM does “not prevent or restrict the exercise of a permitted act.” By making this clear, New Zealand ensures that TPMs may still be used to prevent copyright infringement, but do not overly restrict user rights.

Unfortunately, the prohibition of TPM circumvention in Canada does not end with Bill C-11. The Trans-Pacific Partnership (TPP) brought upon new intellectual property policies in 2016. Amongst these copyright reforms, the TPP requires Canada to make further changes to their digital lock rules to align more closely with the WIPO+ model. This model removes the ability to restore the flexibility found in the WIPO Internet treatises, essentially locking these new digital lock rules in Canadian law. According to Michael Geist, a distinguished Canadian law professor in internet law, this will involve the addition of new criminal provisions regarding rights management information and may also make digital lock exceptions even more restrictive than they already are.

[1] Carys J Craig, “Digital locks and the fate of fair dealing in Canada: In pursuit of prescriptive parallelism” (2010) 13:4 The Journal of World Intellectual Property 503.

[2] Andrea Kampen, “Copyright Issues in Archives” (2016) 12 Dalhousie Journal of Interdisciplinary Management 1.

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