The Internet exception is more than just unnecessary – it is harmful. First, rather than improving access, the exception will actually encourage people to take content offline or to erect barriers that limit access (including DRM). Section 30.04(3) provides that:
Subsection (1) does not apply if the work or other subject-matter – or the Internet site where it is posted – is protected by a technological measure that restricts access to the work or other subject-matter or to the Internet site.
In other words, in return for the exception, CMEC and AUCC has effectively pushed the government to include a provision that encourages creators to use DRM or restrict access to their work. Many website owners who may be entirely comfortable with non-commercial or limited educational use of their materials, may object to a new law that grants the education community unfettered (and uncompensated) usage rights. Accordingly, many sites may opt out of the exception by making their work unavailable to everyone. This is obviously a lose-lose scenario that arises directly out of the exception.
Second, the implication of the exception is that using publicly-available Internet materials is not permitted unless one has prior authorization or qualifies for the exception. This suggests that millions of Canadians outside the education system who use Internet-based materials are somehow violating the law. This is simply wrong – an enormous amount of online content is intended for public use or qualifies as fair dealing – and to imply otherwise sends the wrong message. Indeed, many of the concerns expressed by the education community apply equally to other groups who do not qualify for the exception.
Third, the exception may violate international law. There are doubts that the provision complies with Canada’s existing obligations under the Berne Convention, the world's foremost international copyright treaty (ironic given that Bill C-61 is ostensibly about addressing international copyright issues). Given that the exception raises these real harms, it should scrapped by moving toward a flexible fair dealing provision.