61 Reforms to C-61, Day 16: TPMs – No Exception for Fair Dealing

Bill C-61's single biggest failure is the fact that it does not preserve fair dealing in the digital environment. When I posted my fair copyright principles earlier this year, the very first principle was that no MP would "introduce, support, or endorse any copyright bill that, either directly or indirectly, undermines or weakens the Copyright Act’s fair dealing provision."  Unfortunately, that is precisely what Bill C-61 does.  The anti-circumvention provision does not contain an exception for fair dealing, which means that Canadians that circumvent a TPM for research, private study, news reporting, or criticism will violate the law even if their intended use of the copyrighted work is otherwise permitted.

The harm this causes cannot be overstated.  Students and teachers that circumvent a DRM'd book for research or private study will violate the law.  Reporters that circumvent DRM'd video will violate the law.  Artists that circumvent a copy-controlled CD for criticism purposes will violate the law.  Several years after the Supreme Court of Canada declared fair dealing a user right, Bill C-61 takes that right and renders it subservient to any digital content that is locked down.

Many groups – from the Canadian Newspaper Association to the Film Studies Association of Canada – have taken notice of the damage this provision will cause to fundamental freedoms such as freedom of the press and freedom of speech.  The bill need not move in this direction – other countries such as New Zealand have introduced anti-circumvention legislation that wisely includes an exception for fair dealing (described as "permitted uses"), while Bill C-60, the Liberal take on copyright reform, preserved fair dealing and thereby provides that political party with a key point of difference with the Conservatives and Bill C-61.  Bill C-61 must not be passed in a form that alters the copyright balance in such a dramatic fashion.  It must be reformed by implementing an exception that preserves fair dealing by permitting circumvention for fair dealing purposes.


  1. Scott Allison says:

    interview with CIPPIC
    hi after a bit, if you lads want to interview me i can be reached at,
    Had phone cut off,….

  2. Charter rights, amendments
    “Several years after the Supreme Court of Canada declared fair dealing a user right…”

    Reference the “Canadian charter of rights and freedoms” [ link ]

    2. Everyone has the following fundamental freedoms:
    a) freedom of conscience and religion;
    b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
    c) freedom of peaceful assembly; and
    d) freedom of association.

    The problem here is that although we have 2.a and 2.d, the charter does not protect our rights specifically enough to clearly protect us in an age of digital communictions. There are new complexities at hand. Net neutrality and fair dealing are core principals in support of our charter rights. There is a practical reality with digital communications: the specific functionality and rules of conduct determine what we can do, how we can associate, how we can express ourselves, and how free is the press. All media have had similar practical impact on our rights, but digital communications, especially the internet, has a wider reach than all other media combined, and directly impacts all of us from home personal uses through large corporate and institutional uses. Because of this wide and deep reach, any rules or functional changes applied to the internet and digital media, have direct pan-societal impact. There is no practical alternative media to choose if changes to the internet or intellectual property law impede your ability to express yourself or assemble (often a non-physical activity now). Finally, although there is no direct mention of property rights in the Charter, it is common law and common wisdom that we have a right to use and enjoy the benefiets of our property, without limitation, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Bill C-61, and other recent happenings, will directly limit how we can use the billions of dollars worth of computers and networks that we own. I see no justifiable reasons or fair compensations for this.

    Realistic preparations for the future must include a thourough treatment of our rights. This could possibly include Charter amendments, or a new document of equal weight. While our government plods along creating limitations, it fails us when it forgets to enshrine the rights that would ballance them. Bill C-61 is a prime example of legislation concieved in a setting where we have no ballancing protection from clearly established rights. We can count on more bad laws in the future as well: lobbyists and ignorance will not disappear tomorrow. As a shield we need rights.

    61 reforms are not enough.

  3. The SCC did (perhaps incorrectly) declare fair dealing a right. But fair dealing isn’t defined. So even if there is an amendment to allow circumvention for fair dealing, anyone who does that is at double jeopardy if they were not within fair dealing – for copyright infringement AND for the circumvention.