30 Days of DRM – Day 12: Research and Private Study (Circumvention Rights)

Section 29 of the Copyright Act contains one of the most important user rights in Canadian copyright law – fair dealing for the purpose of research or private study does not infringe copyright.  For many years, this provision was narrowly defined such that the education and library communities adopted relatively conservative approaches to defining what constituted fair dealing.  In recent years, however, Canada has experienced a dramatic shift in the vibrance and importance of fair dealing.  In a trio of cases, the Supreme Court of Canada strongly affirmed the need for balance in Canadian copyright law.  The shift began in the Theberge, where Justice Binnie, in discussing the copyright balance, stated that:
The proper balance among these and other public policy objectives lies not only in recognizing the creator's rights but in giving due weight to their limited nature.  In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them. Once an authorized copy of a work is sold to a member of the public, it is generally for the purchaser, not the author, to determine what happens to it.

Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.  This is reflected in the exceptions to copyright infringement enumerated in ss. 29 to 32.2, which seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review and to add new protections to reflect new technology, such as limited computer program reproduction and "ephemeral recordings" in connection with live performances.

Having affirmed the need for balance in Canadian copyright, a unanimous Supreme Court then proceeded to elevate the importance associated with the exceptions to copyright infringement in the CCH Canadian v. LSUC by describing them as user rights.  Justice McLachlin stated:

the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright.  The fair dealing exception, like other exceptions in the Copyright Act, is a user's right.  In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively.


The fair dealing exception under s. 29 is open to those who can show that their dealings with a copyrighted work were for the purpose of research or private study.  "Research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained.  I agree with the Court of Appeal that research is not limited to non-commercial or private contexts.

With copyright balance and the importance of user rights established beyond doubt, the creation of anti-circumvention legislation that fails to adequately preserve that balance, including user rights, should properly be seen as directly undermining the very foundation of copyright law in Canada. Bill C-60 sought to maintain that balance by linking circumvention to copyright infringement, so that someone who circumvented a TPM could argue that they did not do so for the purpose of copyright infringement if their intended purpose was covered by fair dealing. 

If Canada moves toward a U.S. DMCA-style approach, however, circumventing a TPM for research and private study would constitute infringement.  Indeed, U.S. cases such as RealNetworks v. Streambox leave little doubt that fair use (the U.S. equivalent to Canada's fair dealing) can be eliminated through an anti-circumvention provision.  In doing so, it would, in the words of the Chief Justice, unduly constrain user rights (not to mention harm federal-provincial relations given that education is a provincial matter).  Accordingly, a specific circumvention right for research and private study as covered by the fair dealing provision will be needed to preserve a right that Canada's highest court has described as an "integral part of the Copyright Act."

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