Documentary Organization of Canada on C-32’s Digital Lock Rules: Denies Our Freedom of Speech

The Documentary Organization of Canada appeared before the C-32 committee last week and gave a strong presentation on the need for anti-circumvention exception for fair dealing, noting that the current approach raises free speech concerns:

The intersection of fair dealing and documentary production has been at the heart of DOC’s advocacy efforts for many years, and this is why we are particularly concerned about the bill’s provisions on digital locks. DOC supports digital locks as a form of protecting one’s expression from infringement, but the current digital locks provisions proposed in Bill C-32 do not provide exceptions for anti-circumvention measures for the purposes of fair dealing.

Visual materials are the raw matter with which documentary filmmakers work. Having access to various sources – analog and digital – is essential to the craft of documentary. As technology advances, we encode our history on different media. History is being digitized. The ubiquity of digital media may lead to more digital locks, but how can we have free access to this history if it is unavailable because of a digital lock? Consider the impact this would have on our ability, as Canadians, to tell our own stories.

The introduction of digital locks without the proper exceptions for fair dealing, especially for the purpose of documentary filmmaking, would hinder documentary filmmakers’ ability to carry out their trade. If documentary filmmakers are kept from practising their craft because of digital locks, they are being denied their freedom of speech and creative expression. Fair dealing is legal. Criminalizing the tools, or the creation and sale of tools, to exercise fair dealing is an inherent contradiction in copyright law.


  1. This is a bit of a stretch. What if the material was in documents that were kept locked in someone’s home? Does free speech mean you can break in?

  2. Bob, that’s an improper analogy. Imagine having a digital music file that has a digital lock on it. What if I wanted to play that music on a player that didn’t support that lock. Or what if, in this case, I was a documentary film maker and wanted to use a piece of the song that was within fair dealing in a documentary about the band? Bill C-32 would make that illegal.

    To take your analogy, it’s like you buying a document and having it locked up inside your own home… but you’re only allowed to take it out and look at it when your friend “The Music Industry” comes over to visit. If your neighbour Bob comes over you can’t show him because he doesn’t have the combination.

  3. I totally see their point. Documents locked in someone’s house are only protected incidentally (i.e. because they are stored in a secure location); DRM’d documents, even those that a user has a legal right to use under fair dealing, become permanently out of reach with this law as is. It means that you can actually publicize the information and still prevent people from being able to utilize their fair dealing rights.

  4. Furthermore Bob, what you are describing are violation of PROPERTY rights. In your scenario, the documents are stored as (as physical paper documents) or within (digitally in a storage device) personal property, further placed inside other property (a building, a house, whatever). None of this applies to DRM material because the digital works protected are NOT PHYSICAL PROPERTY. If you steal DVDs off the shelves, then it becomes a matter of property rights. Otherwise, you analogy again jumps to the faulty conclusion that data on a DVD is equivalent to physical property. It ISN’T. It is a matter of copyright.

  5. Keith Higgins says:

    This is a very mild position, considering what is happening to public domain, historical materials as they are digitized by large institutions and private companies. I have come across several scanned versions of public domain books where each page is watermarked by Google Inc. or Microsoft, and the entire document is preceded by dire warnings that it cannot be copied, and the the most severe penalty will be reserved for anyone who removes the digital watermarks. In this fashion, historical documents and intellectual works which are in the public domain are converted back into private holdings. Now imagine this taken one step further, adding a “digital lock” to the document. It is already onerous to access holdings from some archives which are technically in the public domain, but which the holder insists are their intellectual property. What happens to open debate about history when access to historical documents, especially public domain historical documents, can be limited at the whim of a company or institution?

  6. To play the devil’s advocate here
    OK, so we know what the DOC’s position on digital locks is with respect to them making documentaries (frankly, hardly surprising). Did the presentation include a position on their use of digital locks? My question is a result of the “especially for the purpose of documentary filmmaking” statement. Presumably they wouldn’t mind someone breaking their digital lock (although the lock would be put in place by the publisher of the doc and not the producer), but I have to ask.

  7. Laurel L. Russwurm says:

    I had some badly fading photographs of ancestors dating back to the first world war digitally restored. These photos are irreplacable bits of family history that were taken with an early polaroid type camera (the image prints are the negatives) so even if the photographer still existed, he wouldn’t have negatives. The fading photos are it.

    If there was DRM on them, under Bill C-32, even without an existing rights holder, even after the copyright term has lapsed, these heirloom photographs, part of my family history, would have been lost forever.

  8. RE: Anon-K
    Funny that anyone has to take a formal position on digital locks, since they don’t work. It would be like taking a position on the perpetual motion machine. In other words, consideration is not worth anyone’s time.

  9. LORD! GARTH! says:

    HMMM time to develop technology that actually immunizes a file from being locked so the author can be assured that their document can be disseminated freely, and not locked up by someone trying to profit from someone else’s work.

  10. Re: Eric L said: “Funny that anyone has to take a formal position on digital locks, since they don’t work. “
    The argument is that the very act of lock circumvention, and the ownership and sale of circumvention tools is being criminalized. The use of the materials may be legal, but the act of obtaining those materials by breaking even the flimsiest of locks would be a criminal offense. So again, a limitation of free speech.

  11. John Smith says:

    RE: Laurel L. Russwurm
    Excellent point. As a person who has worked in IT for decades, I have had to work with significant changes in storage media. Once upon a time there were backup cartridges much like an 8-Track tape that IBM used to make. I was asked to recover some data off one and had to find a device to extract the data. I eventually had to find three devices and using parts from all three, I was able to make a functional unit and extract the data. Since this Copyright Law would lock the data to the media one must not only maintain the media holding the information but must also maintain functional devices to access the media. With out a Fair Use provision you can not transfer the data to new media that can be accessed on current technology. Having already paid for the media and the appropriate license to access the media for personal, rental or broadcast purposes, you should have the RIGHT to transfer the data as long as you do not breach the license you payed for.
    The Copyright Law should ONLY apply to actions that breach the usage license payed for the content, so if you pay for a personal license you can not charge people to access the data, distribute the data or broadcast the data for public consumption. If someone is selling, renting, trading or broadcasting copies of the data then they should be considered to have breached their License.
    Laws that are clear and simple to understand, should be the only laws allowed. Get rid of the loopholes and discriminatory provisions.