61 Reforms to C-61, Day 33: TPMs – LAM and Educational Institution Limitations, Part One

As noted earlier in the series, unlike some other countries, there is no anti-circumvention exception for teaching in Bill C-61.  The one nod to the special considerations for libraries, archives, museums, and educational institutions in the anti-circumvention rules comes in Section 41.19 with regard to potential damages.  That provision states that:

If a court finds that a defendant that is a library, archive or museum or an educational institution has contravened subsection 41.1(1) and the defendant satisfies the court that it was not aware, and had no reasonable grounds to believe, that its actions constituted a contravention of that subsection, the plaintiff is not entitled to any remedy other than an injunction.

Given the publicity associated with Bill C-61, it is hard to imagine that there will be many cases of circumvention where there is no awareness that a violation of the law has occurred (and therefore qualify only for an injunction and no damages).  That said, Bill C-61 should include a real exception for LAM and educational institutions.  If not for teaching, then certainly for accessing the information in appropriate circumstances.  For example, Taiwan includes an exception for "archive institutions, educational institutions, or public libraries to assess whether to obtain the information."  This form of exception recognizes the need for access as part of decision-making processes that have nothing to do with copyright protection.  A similar exception would be appropriate in Canada.

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