Pulling a Fast One?: Who Is Really Hurt By C-32’s Missing Fair Dealing Circumvention Exception

For the past two Bill C-32 committee meetings, Conservative MP Ed Fast, a new member of the committee, has emerged as an important questioner. Fast has focused on the digital lock rules with several exchanges that defend the government’s approach. While dozens of groups (including education, consumer groups, libraries, archivists, retailers, and technology companies) have called for a link between circumvention and copyright infringement, Fast believes that opening that door would effectively eliminate the use of digital locks. 

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.  It is important to emphasize that linking copyright infringement to circumvention is compliant with the WIPO Internet treaties, it is an approach that has been adopted by other countries, and it is one that has been promoted by many groups supportive of copyright reform. This is not an “anti-copyright” proposal that seeks to undermine respect for copyright. In fact, it is the opposite since it tries to engender greater respect for copyright by retaining an appropriate balance within the law.

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.


  1. Deep in the sand …
    One wonders if Minister Fast is only trying to defend the position his government has put forward regardless of it’s credibility?

    Once more to point out the obviousness you have pointed to … the near total trumping of fair use by digital locks will in no way stop infringing uses, rather it will exasperate them as respect for copyright continues to erode.

    Anyone who does not see this either does not care as they have some way to gain by keeping the status quo or their heads are simply lodged somewhere where the light is limited.

  2. Mr. Angry Consumer says:

    …When reasonable citizens are made crimminals…
    By the wholesale application of unjust laws, then the respect for ALL law declines. Thusly tyrants are made and revolutionaries are made.

  3. Ah the good old slippery slope. If you allow X, then Y would happen!

    He’s attempting to defend making most activities Canadians so illegal because if they don’t, then it will lead to an increase in breaking the law! Well, leaving it in will lead to an increase in breaking the law and less respect for copyright.

  4. Can we get people in the gov who have some clue on todays and not 1990’s technology. Most of the locks they want to introduce are either already broken or will be with in a short time of being introduced.

    Those politicians that want to introduce digital lock are against Canadian consumers rights and should be called out for it and have a hidden agenda(s). If they don’t have a clue about digital locks should not be in power to make any kind of decision regarding them.

  5. Mr. Angry Consumer says:

    …When reasonable citizens are made crimminals…
    By the wholesale application of unjust laws, then the respect for ALL law declines. Thusly revolutionaries are made.

  6. By Mr Fast’s reasoning, long guns shouldn’t be registered, they should be banned.

    Or to put it another way that a [Cc]onservative should understand: it’s my private property and I should be darn well able to do with it what I want in the privacy of my own home for my own personal use.

    And lastly, to paraphrase a certain politician of earlier years: the government has no business in the media rooms of the nation.

  7. I sort of agree
    However there are a few projections that I am not so sure about.

    1) “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”. Frankly, this is an issue with any change in the law, for instance genetic engineering of foodstuffs, as associated research fields would be affected by laws changing the accepted norms in that field. It is a cost of doing business.

    2) “Innovative businesses …”. My experience in almost 20 years in industry and government is that the corporate lawyers are going to be risk-averse in any case. If a company needs to break a digital lock to get at something for them to build to sell or for internal research, at the very least I can see the lawyers tut-tutting because it may be considered commercial infringement in any case.

    “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.” In general, the discussion about the digital lock provisions in C32 I’ve found to become very polarized. On one side you got those who claim that with complete protection for locks the world will go to hell in a hand basket. On the other side, you’ve got people who claim that because the bill gives complete protection then the government must be in the pocket of Big Copyright. A line from the TV show Babylon 5 put it well (I don’t know if they got this from elsewhere):

    The truth is a 3 edged sword. Your truth. Their truth. And reality.

    What this says is that truth is subjective. Both sides may well be equally correct, and both sides equally wrong. Often reality lies somewhere in the middle.

    @Mr Angry Consumer: This would hardly be the first time that this has happened. In the US there was this little thing called Prohibition. In Canada we’ve had C-61 which created the long gun registry. In both cases it was about forcing the morals of one powerful group onto another, possibly larger, group. Heck, how about when it first became required for people to get driver’s licenses to drive their cars or to put plates on them?

  8. Fake news
    “But the change originated with the recommendation of a parliamentary committee, and documents show the CRTC has opposed it.”

    So how can we find the names of the MPs that were recommending broadcasting fake news?

    This might be very revealing.


  9. In principle, what he says is true (although exagerated) it would be harder to enforce the rules on digital locks. You wouldn’t be able to put a blanket ban on all tools used to circumvent them for instance, because those tools all have legitimate uses now. You wouldn’t be able to pass judgement based solely on evidence that a digital lock was bypassed, etc.
    The problem isn’t that he is lying that it would make things more difficult, the problem is that they are going for whats easy even though they know it is wrong.

  10. Yet another bang-on analysis of an important issue that affects all Canadians. Thanks so much once again for your work Michael!

  11. Fair dealing Knopf Blog
    I looked at the latest video on the Knopf blog. I don’t understand the concern over adding education to Fair dealing exemption. I do not understand the origins/claims/ magnitude of the increased losses. This is not a rhetorical question- where’s the math ?

    Seems to me that the materials copied by students under the private study and research exemption will be the same materials copied by the same students under the proposed Education exemption. Do opponents of the ed exemption believe that the students will now make two copies?-that one was rhetorical 🙂

    Given the same tests for fair dealing how will the new exemption increase the current levels of permissible copying ?

  12. Does it make any difference when someone breaks or not the door’s lock when stealing a car?

    On the other hand, if the car is legally mine, may I break the door lock if I want so?


  13. Canadian Consumer says:

    Fast is out to lunch
    Napalm very good point. This is quite the stretch for Fast to make, laws like these on physical locks would put locksmiths out of work.

    Soon we will sell furnaces that may not be opened. Cars that can only be serviced at the dealership. Devices with malicious code that I am not allowed to examine. Boxes with wiretaps that prevent me from opening them. This a very slippery slope. Did this Fast guy fall off a turnip truck. Is he insane???? Why are people without a background in these things so willing to give their worthless opinions?

    I don’t want to own anything that I can not break, toss in the garbage, set to fire with my lighter, or crunch the hell out of with my PC. Who the hell is this man to legislate rights to property that is MINE! I do not want products that I am not allowed to examine independently to satisfy my own curiosity. I don’t want your Trojan horse in my DVD, Sir. I want to know what it is, that I am sold.

    I am sorry, but no one has the right to give me code that I shall run without checking its credibility and capacity for maliciousness. YOU DO NOT HAVE THIS RIGHT, to foist on me products that have more rights than I do. God forbid, I look under the hood for my own curiosity. Go fly a kite, Mr. Fast. I do not trust you, or anything that your human producers (which are prone to error) are willing to foist on me in your “BLACK BOX” that I AM NOT ALLOWED to open. Kindly go take a vacation sir.

  14. Canadian Consumer says:

    GET this stuff off the shelves!
    I don’t want this crap in my home, or any of my friends homes. Why should I be treated as the THIEF first? If they want to put their product in my home, in my DVD player, they better show me the courtesy and respect of being honest with me.

  15. @Napalm
    The issue is surrounding exactly what rights you have with respect to the item. In the case of a car, you have full rights to break or modify the vehicle as you see fit and still drive it on the road (so long as the modifications are street legal). However, do you have the right to reproduce the vehicle even if it is only to produce another copy for yourself? Since you physically can’t drive two vehicles at once you can’t use them both simultaneously, although one could be used by another member of your immediate family.

    When talking about media and breaking locks on them, the issue is more about reproduction rights, sort of like using a car that you bought as a template to produce a copy from. To create a version that is usable on a different player you need to reproduce it, since you’ll still have the original.

    To use your example, let’s say that you have a Toyota Corolla and a Honda Civic. However, there is one piece of functionality that is implemented in the computer in the Corolla that you want to put into the Civic. If the computers are not the same chips, then to run this on the different platform you would need to reverse engineer the code and build up something that would go onto the chip in the Civic. This would be, I believe, a direct parallel to the reproduction for use on a different player type scenario. Would this be allowed under your view (assuming that prior to disposing of the vehicle that you reverted the Civic’s computer to the version provided by Honda)?

  16. @Anon-K: “However, do you have the right to reproduce the vehicle even if it is only to produce another copy for yourself?”

    Since when we can’t build things for ourselves?


  17. Canadian Consumer says:

    Of course you have a right to reproduce your vechicle. Even if it means getting it part by part from scrap yards all over America. You have a right to machine your own parts for legacy vehicles.

    You don’t have a right of putting it togather and calling yourself Toyaota and trying to sell it as new. You don’t have the right to roll back the odometer.

    The above examples are of breaking the law. Nothing wrong with putting a vechicle togather or even reproducing it from after market parts. You only cross the line, when you are being deceptive and calling it an original. Much like piracy.

  18. “When talking about media and breaking locks on them, the issue is more about reproduction rights”
    No, the issue *should* be more about reproduction rights. What it IS about is making breaking digital locks illegal which has nothing at all to do with reproduction rights. (Thats the whole problem)

  19. This reminds me of a phrase once mentioned to me, that apparently Fast has never heard…

    “Locks only keep honest people honest.”

  20. Following Fast’s logic, I would argue that if we allow locks at all, then they are bound to be used to block legal activity. Perhaps we should just ban any sort of lock, then.

    It seems to me that an alternative is to outlaw locking out fair dealing. Make it illegal to circumvent locks, but make it illegal to lock out fair dealing. Would Fast be satisfied then? Everyone wins!

  21. I had an epiphany.
    I have said in the past here, and on my own website that “digital locks” are not actually talked about in the proposed legislation. The term I prefer is “mathematical locks”; because it includes the analog domain as well, while hinting that “breaking” them is nothing special.

    However, one thing I have not realized before is that digital “locks” are already used extensively in computing, and are designed to be circumventable. I am talking of course about [url=]Lock files[/url]. They essentially allow a process to call “I’ve got it!” before modifying a file. If the process dies before removing the lock, its replacement process is free to remove the lock (called a “stale lockfile”).

  22. …”It seems to me that an alternative is to outlaw locking out fair dealing. Make it illegal to circumvent locks, but make it illegal to lock out fair dealing.”

    Although I might applaud the sentiment, that’s just being downright sneaky.

    I realize that’s the way most of the lobbyists seem to want to play the game, but is it really a good idea to play the game their way?

  23. What’s in it for us?
    This legislation clearly targets all Canadians with no apparent benefit to any of us.

    The ineffectiveness of policing the existing Copyright act can not be made most effective by a new set of rules.

    This is clearly aimed at a very small sector that will continue to evade whatever legislation is put in place while leaving the rest us us painted with the same brush as the perpetrators that are the target.

    The very concept of “digital locks” and “intellectual property” surely indicates from where the pressure is coming from to enact these terms.

    For my purposes, this could give my commercial free, non-profit history web sites a huge headache if the “Fair dealing for the purpose of research or private study does not infringe copyright” is done away with.