The Daily Digital Lock Dissenter, Day 8: Documentary Organization of Canada

The Documentary Organization of Canada represents hundreds of directors, producers, and creators of documentary films. The organization’s concerns with the digital lock provisions in Bill C-11 place the spotlight on their potential chilling effect and provides an important example of how the Canadian approach is more restrictive than even the U.S. DMCA.

For documentary film makers, the use of film clips is frequently an essential part of the creative process. If those clips are locked behind a digital lock supported by C-11 digital lock rules, creators will face real barriers in completing their work. While some might suggest that they can simply seek permission to use a clip, rights holders are notorious for establishing restrictive conditions on the use of clips that may include prohibitions on critical speech. For example, during the last round of DMCA exemption hearings, one film maker presented the following clause used by rights holders to restrict re-use:

“4. Licensee represents, warrants, and agrees that the production in which the clip is used shall not be derogatory to or critical of the entertainment industry or of Licensor, or any officer, director, agent, employee, affiliate, parent or subsidiary of Licensor or of any motion picture produced or distributed by Licensor or of any characters owned or controlled by Licensor, and will not be used in a manner derogatory to or critical of the motion picture from which the clip was taken, any character owned or controlled by Licensor or any person involved with the production of said motion picture.  This license shall be null and void in the event the MPAA/CARA rating given to the production is more restrictive than ‘R’.”

The restrictive language helps explain why groups like the Canadian Civil Liberties Association have also objected to C-11’s digital lock rules since they can be used to establish an important restriction on freedom of expression. In fact, the U.S. response to these concerns has been to establish a specific exemption to allow for circumvention of digital locks on DVDs for the use of short clips in order to create new, noncommercial works for purposes of criticism or comment.  Bill C-11 does not contain a similar exception, leaving Canadians locked out of DVDs, even for the purposes of non-commercial re-use permitted by fair dealing. Given the impact and disparity in approach, the DOC position:

Already documentary filmmakers are encountering problems when attempting to access content behind digital locks. Documentarians are experimenting with new media and interactive documentary content using digital media. In order to access this material, they may have to break digital locks, which under the proposed legislation is considered illegal. However, their use of the material under a fair dealing defence would be legal. DOC considers this contradiction to be at odds with the purposes of copyright: it protects the rights holder, but it does not act in the interest of the public for dissemination nor does it foster creativity.

The digital locks provisions lock up cultural objects so that they cannot be accessed even for legal purposes. Furthermore, the instruments by which one could access these materials are prohibited. In order to rectify this contradiction, DOC recommends that the digital locks provisions be amended so that Canadians can circumvent digital locks for non-infringing purposes, and in particular under fair dealing. This can be done by adding an exception to section 41.11, where the bill outlines the other exceptions. In addition, the creation of tools to circumvent for this purpose should not be prohibited.

Previous Daily Digital Locks: Provincial Resource Centre for the Visually Impaired (PRCVI) BC, Canadian Consumer Initiative, Retail Council of Canada, Canadian Council of Archives, Canadian Teachers’ Federation, Canadian Federation of Students, Canadian Civil Liberties Association


  1. Locked out of our own culture
    I can’t see how society can thrive when it is locked out of it’s own culture. In the long term people are going to turn to unrestricted culture in whatever form it takes. These digital locks are going to keep not only infringers out, but everyone else too. If you lock your customers out of your product, it isn’t going to sell. Initially the digital locks will work for the media companies but once the masses start bumping up against the locks they will start turning away from the content. No one would eat in a restaurant that poisoned it’s food and only gave the antidote after you paid your bill.

    Is it new technology? I think it’s a simple nice tools.

  3. @Doug
    “I can’t see how society can thrive when it is locked out of it’s own culture.”

    How many commercially released 33 1/3 rpm vinyl records (introduced in 1948) do you know that have passed into the public domain due to the copyright and related rights expiring? No DRM on those, but you’re still locked out (except the comparatively handful of albums that are being reissued).

    Don’t get me wrong, the “fight” against anti-circumvention legislation is important, but drastic copyright term reduction is next. This solves issues as the one described in the posting: when it’s public domain, you can use it for any purpose you deem fit and no “Licensor” will be able to interfere.

  4. @Doug
    With respect to your statement “If you lock your customers out of your product, it isn’t going to sell”, I’d partially agree. It depends on how much the consumer wants it and if they are willing to put up with the grief of locked product. As I remember, the iTunes stores introduced the concept of two prices for a work. The cheaper one had DRM embedded but if you were willing to pay a bit more you could have it DRM-free. My own feeling is that is the model that will, over time, take hold.

    Back on point, the trick here is to find an appropriate balance, one with balances the needs and rights of the various interested parties. Much of the discussion here surrounds a single element within the bill as a whole; this is a carrot for the producers who lost other things. So, if the right to break DRM for personal use is important to you, would you be willing to negotiate a trade-off in giving up something else that is important to you? In essence, say to the politicians that “the right to break DRM for personal use copying is important enough to me that I am willing to give up this other right” may in fact get their notice…