For example, yesterday he asked the Canadian Federation of Students how it could justify “eliminating digital locks altogether by allowing circumvention for fair dealing purposes?” Last week, he had a similar exchange with the Canadian Civil Liberties Association, stating “my concern is if you go that extra step and allow circumvention for fair dealing, you’ve now made it so much more easy to actually allow the cheaters to undermine the system, where digital locks become absolutely meaningless.”
Fast has clearly given some thought to the digital lock issue, but he is wrong that linking circumvention to actual copyright infringement would render digital locks irrelevant.
As I discuss in detail in my 2010 article on implementing the WIPO Internet treaties, several countries have proposed or passed legislation that explicitly links circumvention with copyright infringement, including New Zealand, Switzerland, Canada (Bill C-60), India, and Brazil. Many other countries have used the treaties’ flexibility to craft their own solutions – Italy permits circumvention for private copying, Greece established a legal right to pursue access, and the Netherlands grants the Justice Department the power to decree access. In fact, even the U.S. has adopted broader exceptions than those found in C-32. In other words, many of our trading partners have examined the same issue and reached the conclusion that circumvention exceptions are appropriate and do not cause the harm that Fast fears.
Fast appears to believe that giving consumers rights to circumvent for some legal purposes will invariably mean that they will circumvent for illegal purposes. Yet this is wrong on several levels.
First, Bill C-32 currently includes circumvention exceptions for several purposes including privacy, security research, and encryption. Adding fair dealing means adding five categories of new exceptions – research, private study, news reporting, criticism, and review. Fast seems to believe that this would open the flood gates to mass illegal circumvention; however, it is hard to see why that would be the case since fair dealing is itself a limited exception that cannot be used to justify unlawful circumvention.
Second, Fast’s position seems to be that the only way for the digital lock rules to be effective is for a complete (or near-complete) prohibition on circumvention. If circumvention is prohibited, consumers will not have the knowledge or ability to circumvent and will therefore abide by the law. On the other hand, if we allow for some circumvention, Fast believes that Canadians will not only circumvent for legal purposes but for illegal ones as well.
I believe this misunderstands who will respect the digital lock rules and why. First consider those who will not respect the digital lock rules. There are two groups of Canadians here. One group consists of the Canadians who circumvent for infringing purposes, such as commercial infringement (Fast describes these as “cheaters” who “undermine the system”). The inclusion of the right to circumvent for fair dealing purposes won’t matter much to this group. They are going to infringe copyright law regardless of what the law states and the law will rightly still target their activities by providing new remedies to rights holders.
The second group of circumventers consists of those Canadians who believe that circumvention is a reasonable exercise of their consumer rights. These include Canadians who unlock their cellphones or format shift a DVD. It seems to me these Canadians will continue to circumvent even with a near-total legal ban on circumvention. Consumers unlock their phones because they believe it is their property and they should be entitled to do so (the government agrees as there is an exception for this in C-32). They similarly format shift DVDs because they reasonably believe that purchasing a DVD should entitle them to watch the DVD on the device of their choice (unlike the U.S. which has a DVD exception, C-32 does not have an exception for digital locks on DVDs). These are not cases of “piracy” or of lost revenue. In fact, the sale of the products is often based on the presumption that the consumer will have the ability to unlock, make a backup, or format shift. There can be a debate over whether these consumers should continue to circumvent, but there is no reason to believe that the inclusion of a fair dealing circumvention exception will have an impact on their actions.
So who will respect the digital lock rules and will therefore be affected by the absence of a fair dealing circumvention exception? The most obvious group is the education community. If the law does not include a fair dealing circumvention exception, teachers will follow guidelines that prohibit circumvention as part of the educational process and students will be stopped from creating mashups or engaging with digital materials in certain ways. Moreover, researchers will stop some research projects as they will be unable to sign ethics documents on grant proposals that their projects are fully compliant with Canadian law.
In addition to the education sector:
- Innovative businesses may find themselves blocked from pursuing new products or services as their lawyers warn that the strict circumvention rules could result in significant liability.
- Journalists may find themselves unable to complete certain news reports since the news reporting exception is also included in fair dealing and would be subject to digital lock rules.
- Some artists may be unable to complete their art as they will lose the ability to rely on the criticism and review fair dealing categories.
- Archivists may find themselves locked out of accessing Canadian culture in their effort to rely on the research prong of fair dealing.
I seriously doubt that these are the “cheaters” that Fast worries about, yet they are the ones who are most likely to be directly affected by the C-32 digital lock approach. These are the groups that rely on fair dealing and for whom a fair dealing circumvention exception would play a critical role in allowing these positive activities to continue, while having no discernable impact on those who infringe copyright without much regard for what the law actually says.
To conclude, it must be stated that Fast’s position confirms the worst fears of the many groups that have spoken out against the Bill C-32 digital lock approach. These groups have noted that the near-complete prohibition against circumvention means that the mere presence of a digital lock trumps virtually all other copyright rights. As a result, fair dealing would largely disappear in the digital world. Fast’s questioning confirms that this is the intent since by arguing against a fair dealing exception for circumvention, he is promoting a world in which fair dealing rights evaporate whenever a copyright owner decides to use a digital lock. Fast is worried about the loss of digital locks and is willing to lose fair dealing in the process. This would represent a radical transformation of Canadian copyright law that prioritizes digital locks over all other rights, making a mockery of claims that Bill C-32 strikes a balance between creator and consumer rights.