Many readers will know that over the summer I launched a 30 Days of DRM series that focused on the concerns associated with DRM and anti-circumvention. Day Seven called for DRM-free library deposits. Well, one down and 29 to go – my weekly Law Bytes column (Ottawa Citizen version, homepage version, BBC international version) highlights recent changes to Canada's legal deposit regulations designed to accommodate the emergence of online publications and to address the DRM issue. Canada introduced mandatory legal deposit in 1953, requiring publishers to provide copies of all published books to the National Library of Canada. With little fanfare, the rules for legal deposit have gradually been adapted to the Internet and digital technologies. In 2004, the government granted the Library and Archives Canada, the successor the National Library, the right to sample web pages in an effort to preserve noteworthy Canadian websites. The Internet sampling provision has been used to gather copies of political party websites as well as a handful of notable blogs.
As of January 1st of this year, the rules have changed yet again as Canadian Heritage Minister Bev Oda introduced new regulations to accommodate the emergence of online publications and to address the concerns raised by digital technologies that potentially impede access. The latest changes will require many online-only publishers to begin submitting their publications to the LAC. The rules disappointingly stop short of requiring all publishers to submit electronic versions of paper-based documents, however. Such a requirement should be considered in the future to facilitate the creation of a national digital library.
The new rules also address mounting concern about the potential impact of DRM to deny future generations access to the publications in digital form.
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Update (December 3, 2007) – I have posted a newly updated version of what you can do in light of the forthcoming Canadian DMCA. The posting includes a YouTube video, a Facebook group, and updated contact information.
Update (November 29/07): With a Canadian DMCA seemingly imminent, the importance of speaking out has never been more important. Some details on the likely new bill can be found here. I've updated the 30 Things You Can Do to reflect the new Ministers.
The House of Commons is back in session and, as I promised last month, the 30 Days of DRM project has now concluded. The postings remain accessible via the 30 Days of DRM page, the wiki, and a new PDF version that incorporates all postings into a single document.
The project generated considerable commentary online and lots of email offline. The most frequently asked question provides reason for optimism as many people simply asked "what can I do?" I typically responded that the best starting point was to write to their local Member of Parliament. Upon reflection, there is more that can be done and to that end, I offer up 30 things you can do about the issues raised by the 30 days of DRM project.
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Yesterday's post identified the availability of circumvention devices as a one foundational issue. The second foundational issue is protection against contracts that seek to trump the law by contracting out of the copyright balance or, in the event that anti-circumvention legislation is introduced, statutory circumvention rights. The use of contractual […]
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Over the past 28 days, this series has addressed circumvention issues both big and small. I have saved the two most important issues for the end since I believe that without addressing these two issues, many of the other recommendations are rendered ineffective.
The first issue is that Canada must not establish a ban or prohibition on devices that can be used to circumvent DRM. Bill C-60 did not contain a provision prohibiting circumvention devices and that approach should be retained in any future legislation.
The DMCA features just such a ban. Section 1201(a)(2) provides that:
No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that –
(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;
(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; or
(C) is marketed by that person or another acting in concert with that person with that person's knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.
The DeCSS case demonstrated the breadth of this approach when merely linking to a devices (devices really refers to software that is able to crack a DRM system) was ruled sufficient to violate the statute.
The past 28 days have illustrated that there are numerous legitimate uses for all circumvention devices.
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The U.S. DMCA experience leaves little doubt that the introduction of anti-circumvention legislation will create some unintended consequences. No matter how long the list of circumvention rights and other precautionary measures, it is impossible to identify all future concerns associated with anti-circumvention legislation. The U.S. DMCA addresses this by establishing a flawed tri-annual review process. The system has not worked well, creating a formidable barrier to new exceptions and long delays to address emerging concerns.
If Canada establishes anti-circumvention legislation, it must also establish an impartial process that will enable concerned parties to raise potential new circumvention rights without excessive delay. The process must be fast, cheap, and easily accessible to all Canadians. It will require clear criteria for the introduction of new circumvention rights along with an administrative structure to conduct the reviews.
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