61 Reforms to C-61, Day 19: TPMs – No Exception for Digital Archiving

Earlier this week, the U.S. Library of Congress issued a report on digital archiving in which it expressed concern about the obstacles created by DRM to the preservation of digital materials.  This concern – which the Canadian government addressed in a narrow context for the Library and Archives Canada legal deposit program in 2006 – remains a major issues for archives across the country.  Incredibly, Bill C-61 leaves the issue virtually untouched, potentially shutting out archives from preserving Canadian history in digital form.  The bill includes a limitation on liability for archives for circumvention (Section 41.19 provides that archives that circumvent without awareness of a legal violation do not face financial damages) and lists archival interests as a potential factor for new exceptions, yet there is nothing to ensure that digital archiving is not locked out due to anti-circumvention legislation.

Other countries have recognized this danger and sought to address it.   For example, the Czech Republic's copyright law provides at Article 37 that:

(1) Copyright is not infringed by a library, archive, museum, gallery, school, university and other non-profit school-related and educational establishment:
a) if it makes a reproduction of a work for its own archiving and conservation purposes, and if such a reproduction does not serve any direct or indirect economic or commercial purpose;

That country's anti-circumvention provisions then specify at Article 43(4) that:

Legal protection under Paragraph (1) [the anti-circumvention provision] above shall be without prejudice to the provisions of . . . Article 37 (1) (a) . . . to the extent necessary to benefit from the exception. An author who used technical measures under Paragraph (3) in respect of his work shall make his work available to lawful users to the extent necessary to fulfil the purpose of the stated exploitation of the work.

It is difficult to understand how a government can intentionally introduce legislation that will cause clear harm to the preservation of a country's own digital heritage.  Amendments are needed to address the digital archiving issue and the Canadian Council of Archives, thus far publicly silent on the issue, must speak out.


  1. Rights, not wrongs
    This is just another example of whre C-61 goes wrong, and occupies us away from the true starting point needed for real copyright reform.

    We need to start Canada’s efforts at copyright reform with a clear set of understandings of the rights that we all require. Be they user’s rights, creator’s rights, distributor’s rights, etc.. Some of these rights are at odds, and only by carefull fresh analysis can we decide what a fair ballance might be. We also can’t assume that existing copyright law is a usefull statement of these rights, because we know that it’s on old attempt to answer these issues, that is now in need of reform because it is out of date.

    Next, we need clear honest outlines of the problems that we face that violate these rights. We need a carefull and objective look at what is really going wrong, instead of extremely biased, distorted, and over-hyped panic screams from self interested parties. Only then, can we intelligently see ways to decide what and why to legislate, in proper fair ballance against our rights. Once again, violations of our current copyright system are not neccesarily good indicators of “what is wrong”, because our old system’s rules do not represtent a fair modern ballance.

    A return to the fundamental issues of rights is needed. C-61, in failing to do this, fails our needs.

    61 reforms are not enough.

    usefully find a way to protect the rights

  2. Let’s Start Over
    Well said. It is fairly obvious that this bill was drafted first by photocopying US legislation then marking it up to content holders wishes and finally a “Made in Canada” facade slapped on top. They must of thought no one would care as any analysis of this document shows it’s author’s limited understanding of today’s digital copyright and fair use issues. So, Mr. Prentice, admit your gaffe and let’s start over with proper consolation and possibly assign someone other than a junior office boy to the task.

  3. Do we need reform in the first place?
    It appears Canada was doing just fine as it was; the RCMP hunting down the real pirates; counterfeiters and bootleggers. Studies time and time again show downloading had very little effect on sales and maybe even helping.

    I think the reason it’s so difficult to implement these so called reforms is because they’re based on unreal expectations. Copyright laws in Canada already protect the rights of content holders on a national and international basis.

    Why is the government wasting millions (billions?) of dollars on some contradictory documentation that will be next to impossible to enforce? I realize the answer to that lies south of the boarder, however, we need to grow a pair and tell these suites to take a hike.

    Where we could use a reform is licensing and use of DRM. Make it so that a license is clearly shown before a purchase. Example, software. State the terms on the outside of the box, or attach documentation, show the DRM technology used, list it’s possible side effects, restrictions, warranties, etc., etc. Then the consumer can make an informed decision before making a purchase. Another alternative would be to ban the use of DRM technology, as it’s too volatile in it’s current form.