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.