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