One of the most common criticisms of Bill C-61 is its failure to distinguish between commercial and non-commercial uses. It is becoming increasingly clear that many Canadians believe that they should have the right to use their property – whether music, videos or other content – in a fair manner without the law painting them as infringers for personal uses. Unfortunately, Canadian rarely considers personal uses (the private copying levy is an exception). This is not true for all countries. For example, Lithuania (which has acceeded to the WIPO Internet treaties), includes a blanket exception for personal uses. Article 20 provides that:
It shall be permitted for a natural person, without the authorisation of the author or any other owner of copyright, to reproduce, exclusively for his individual use, not for direct or indirect commercial advantage, in a single copy a work published or communicated to the public in any other mode, where the reproduction is a single-action.
While this kind of provision alone would be welcome under Canadian law (and remove much of the complexity found in the new round of consumer-oriented exceptions), it is noteworthy that the Lithuanian anti-circumvention provisions include a specific exception that preserve this personal use right by requiring content owners to enable legitimate uses. Article 75 (1) states:
When technological measures applied by owners of copyright, related rights and sui generis rights prevent the users of such rights from benefiting from the limitations of copyright, related rights and sui generis rights, provided for in paragraph 1 of Article 20 . . . the users of the rights must be provided with conditions or adequate means (i.e. decoding devices and other) enabling to use legitimately accessible objects of copyright, related rights or sui generis rights to the extent necessary for the users of the rights to benefit from the limitations of copyright, related rights and sui generis rights provided for their interests.
This approach has the benefit of not only preserving personal uses, but also placing the obligation on those that use TPMs to ensure that the public retains its rights. Both of these elements would be welcome under Canadian law and provide some much-needed balance to the law.