The Canadian Newspaper Association has issued a position paper with its views on C-61. While the paper addresses several issues, its concerns with the anti-circumvention provisions are the most striking. The CNA notes that:
Bill C-61 makes it an offence to bypass any technological protection used on Internet sites. This is not normally an issue for newspaper public sites, but might apply to sites requiring registration, and to paid archive services. While this is positive for rightsholders seeking to protect content from unauthorized access, it could have implications on newsgathering, news reporting, and press freedom broadly, as is shown in the discussion below.
Under section 29.2 of the current legislation, there is a fair dealing defence to copyright infringement for news reporting. As drafted, Bill C-61 throws up roadblocks. For instance, if documents are encrypted, it will be illegal to break the encryption. This means that journalists who come across or are sent electronic documents (for example from a whistleblower) may be unable to use them without incurring very significant liability, even though there are no barriers on using the same materials in print format. It might also mean that citing video or other content from a digitally protected work (say, a DVD movie in which a newsmaker once appeared) could incur liability.
These are the same kinds of concerns that consumers have expressed and it is good to see that the CNA recognizes that the anti-circumvention provisions could have an adverse effect on press freedoms. Its proposed solutions (which it describes as minor amendments) are in-line with the fair copyright principles that I've articulated in the past:
- The prohibition on anti-circumvention software must be modified so that it can lawfully be manufactured, imported or provided if its use will be confined to acts that Bill C-61 expressly authorizes
- The use of such software must be permitted if the circumvention does not infringe copyright. That is already built into some parts of Bill C-61 and extending it to fair dealing activity does not pose a serious risk to copyright owners. At a minimum, an amendment is needed to cover investigative journalism, by exempting any circumvention needed for news reporting as allowed for by section 29.2 of the current Act. This is easy to draft and entirely compatible with provisions already in Bill C-61, such as those for the perceptually disabled.