Appeared
in the Toronto Star on August 2, 2010 as U.S. Move to Pick Digital
Locks Leaves Canadians Locked Out
Since its introduction two months ago, the government's copyright
reform package has generated widespread debate over whether it strikes
the right balance. The digital lock provisions have been the most
contentious aspect of the bill, with critics fearing that anytime a
digital lock is used, it would trump virtually all other rights.
Supporters of the C-32 digital lock approach have sought to counter the
criticism by arguing that the Canadian provisions simply mirror those
found in other countries such as the United States. Yet last
week, the U.S. introduced changes to its digital lock rules that leave
Canada with one of the most restrictive approaches in the world.
The U.S. rules are found in the Digital Millennium Copyright Act
(DMCA), which features a triennial review process that allows the U.S.
Copyright Office and Librarian of Congress to mitigate the danger the
law poses to legitimate, non-infringing uses of copyrighted materials
by identifying new exceptions.
The latest review concluded last week with the introduction of new
exceptions that target popular consumer products such as DVDs,
smartphones, and e-books. The exceptions - which make it legal to
circumvent the locks - are narrow in scope, but they provide U.S.
consumers with far more rights than those found in Bill C-32.
The media focused primarily on the smartphone exception, which is
tailor-made to address the locks found on the popular Apple
iPhone. Three years ago, the U.S. established a specific
exception to allow consumers to legally unlock their cellphones so they
could keep their phones when switching providers. Last week, it
extended the exception even further, granting consumers the right to
"jailbreak" their phones. That move allows consumers to install
applications of their choice without requiring Apple's prior approval.
The Canadian rules on cellphones and digital locks pale by
comparison. While the inclusion of an exception for unlocking a
phone was promoted as an illustration of a pro-consumer element of
C-32, there is no equivalent to the U.S. rule for jailbreaking phones
in Canada.
More noteworthy were a trio of exceptions involving circumventing the
locks on DVDs. The first establishes an exception to circumvent DVD
protection to gather a short clip for educational purposes. The
Canadian government has promoted the benefits of C-32 to the education
community (the bill includes a broad new fair dealing exception for
education), yet teachers or students engaging in the same conduct would
violate the law in Canada under C-32.
The second permits documentary film makers to circumvent DVD
protections to gather a short clip. There is no similar exception
found in the Canadian bill, which has led the Documentary Organization
of Canada to conclude that C-32 puts "documentarists in an untenable
situation" since they will not be able to use as source material any
content behind a digital lock.
The third grants a specific exception to anyone circumventing DVD
protection to collect clips for non-commercial videos. The
Canadian government has touted its "YouTube" user-generated content
remix exception as an example of forward-looking elements in the bill
that grants Canadians the right to create remixed work for
non-commercial purposes under certain circumstances. However, unlike in
the U.S., those new rights are lost once the desired content is placed
under a digital lock.
Finally, the U.S. rules also contain an exception for e-books designed
to facilitate access for the sight impaired. The Canadian rules
do not contain a similar exception.
Given the restrictions on distributing circumvention tools, contractual
restrictions, and the absence of a general right to circumvent for
lawful purposes, the U.S. exceptions are hardly a panacea. Yet
when compared to Bill C-32, they will leave Canadian consumers
wondering why the government has proposed a bill with digital lock
rules far more restrictive than those found in the U.S.
Michael Geist holds the Canada
Research Chair in Internet and E-commerce Law at the University of
Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online
at www.michaelgeist.ca.
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Appeared
in the Hill Times on August 2, 2010 as Federal Court Ruling Shows
Copyright Fair Dealing Fears Greatly Exaggerated
The introduction of long-awaited copyright reform legislation has
generated considerable discussion among Canadians about whether the
latest bill strikes the right balance. While concern over Bill C-32's
digital lock rules has garnered the lion share of attention with
expressions of concern from all opposition parties and a wide range of
stakeholders, the other major issue in the bill is the extension of
fair dealing - Canada’s version of fair use - to cover education,
parody, and satire.
The government endeavoured to find a compromise by rejecting both pleas
for no changes to the fair dealing provision as well as arguments for a
flexible fair dealing that would have opened the door to courts adding
exceptions to the current fair dealing categories of research, private
study, news reporting, criticism, and review. Instead, it
identified some specific new exceptions that assist creators (parody
and satire), educators (education exception, education Internet
exception), and consumers (time shifting, format shifting, backup
copies).
Some writers groups have reacted angrily to the education exception,
claiming it will cost them millions in revenue and arguing that it
amounts to an "expropriation of property." Yet a new decision
from the Federal Court of Appeal provides powerful evidence that these
fears are exaggerated with the new expanded fair dealing rules still
striking a reasonable balance between creators and users.
The decision marked the culmination of six-year battle over the fees to
be paid by schools across the country for copying to Access Copyright,
a leading copyright collective. At the heart of the case was the
question of how far fair dealing currently extends to the education
environment. The ruling was a major win for Access Copyright, as
the court dismissed objections from education groups on an earlier
Copyright Board of Canada ruling that awarded the collective millions
in additional compensation.
The case is notable since it demonstrates how critics of greater fair
dealing flexibility have greatly exaggerated claims of potential
harm. For example, former Professional Writers Association of
Canada Executive Director John Degen warned that "the introduction of
an overly broad exception to copyright for educational use would all
but eliminate fair compensation for this established use." Access
Copyright reacted to the court victory by stating it was "bittersweet"
given the C-32 changes.
While there is no doubt that extending fair dealing to education will
bring more copying within the scope of fair dealing, this case
reinforces the fact that fair dealing is a fair for all, not a free for
all and that fears that extending fair dealing by introducing a broad
education category will wipe out all revenues bear little relation to
reality.
The case highlights that Canadian fair dealing analysis involves a
two-part test. First, does the use (or dealing) qualify for one
of the fair dealing exceptions. Second, if it does qualify, is
the use itself fair. In this particular case, the court affirmed
that the copying in question qualified under the first part of the test
(ie. for research or private study), but that it did not meet the
six-part test for fairness and thus was not fair dealing.
It is critical to note that extension of fair dealing to education in
Bill C-32 only affect the first part of the test. In other words,
while the bill will extend the categories of what qualifies as fair
dealing, it does not change the need for the use itself to be
fair. The Supreme Court of Canada has identified six
non-exhaustive factors to assist a court‘s fairness inquiry: (1) the
purpose of the dealing; (2) the character of the dealing; (3) the
amount of the dealing; (4) alternatives to the dealing; (5) the nature
of the work; and (6) the effect of the dealing on the work.
In fact, the court even addressed the potential impact of C-32, noting
that the bill’s fair dealing reform “serves only to create additional
allowable purposes; it does not affect the fairness analysis. As the
parties agree that the dealing in this case was for an allowable
purpose, the proposed amendments to the Act do not affect the outcome
of this case.”
The decision represents a big win for the copyright collectives, but it
also demonstrates that their concerns about C-32's fair dealing reforms
are overstated. The bill will open the door to other potential
uses being treated as fair dealing, but the requirements for fairness
remain unchanged.
Michael Geist holds the Canada
Research Chair in Internet and E-commerce Law at the University of
Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online
at www.michaelgeist.ca.
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