Nearly two years ago, I wrote that the Federal Court had issued a major decision on the relationship between fair dealing and digital locks, concluding that copyright’s anti-circumvention rules do not trump user rights (podcast on the case here). That decision, Blacklock’s Reporter v. Attorney General of Canada, was a big win for user rights because, for the first time, a court ruled that Canada’s anti-circumvention rules (aka digital lock rules) were subject to fair dealing. Last month, the Federal Court of Appeal set aside that judgment, ruling that the declarations in the lower court decision should never have been issued in the first place because they lacked “practical utility.” In basic terms, the case was “moot” since Blacklock’s had tried to withdraw the lawsuit and did not require a ruling. But while rights holders seem ready to celebrate, the reality is that the new ruling does not say the Federal Court was wrong on any of the substantive copyright questions.
Post Tagged with: "tpm"
Win, Lose or Draw?: The Federal Court of Appeal Overrules a Key Copyright Case on Procedural Grounds
Flawed Copyright Case Places Spotlight on Canada’s Digital Lock Problem
Does asking a friend for a copy of a newspaper article from a subscription website constitute copyright infringement? According to an Ottawa small claims court, it does.
The court recently issued a deeply flawed copyright ruling, providing a timely warning about the dangers of Canada’s restrictive digital lock rules that were enacted by the Conservatives over the strong objection of many copyright watchers.
My weekly technology law column (Toronto Star version, homepage version) notes that the case involved the president of the Canadian Vintners Association (CVA), who received an email from Blacklock’s Reporter, an Ottawa-based political publication, advising that he was quoted in an article discussing a recent appearance before a House of Commons committee. The man did not subscribe to the publication, which places its content behind a paywall, so he contacted a member of the association who was a subscriber and asked if he could see a copy of the article. When Blacklock’s Reporter learned that he had received a copy from the subscriber, it demanded that he pay for a full subscription or face a copyright infringement lawsuit.
Industry Committee on Canada’s Science and Technology Strategy
The Standing Committee on Industry, Science and Technology has commenced the hearings on Canada's science and technology policy. There are a handful of submissions online including CIPPIC, Tracey Lauriault, Russell McOrmand, the BCLA, and the Canadian Association of Broadcasters. My submission is posted below:
New Zealand’s Digital Copyright Law Demonstrates Anti-Circumvention Flexibility
New Zealand passed its digital copyright law this week, drawing the ire of the technology community and the blogosphere. While the bill isn't great, many of the provisions are far better than what Industry Minister Jim Prentice may have in mind for Canada including format and time shifting provisions as well as anti-circumvention provisions that are more flexible than those found in the DMCA. In fact, the anti-circumvention provisions are arguably the best of any country, since they are compliant with WIPO, limited in scope, and seek to preserve fair dealing rights.
On the anti-circumvention front, there are several things to note:
- the technological protection measures (TPMs) expressly exclude access controls such as region coding. In other words, the anti-circumvention provisions do not apply to devices that "only controls access to a work for non-infringing purposes."
- the legislation targets anti-circumvention devices, but excludes those devices that have something more than "limited commercially significant applications" other than circumventing a TPM.
- the law prohibits making, selling, distributing, advertising, or offering a circumvention device if the person "knows or has reason to believe that it will, or is likely to, be used to infringe copyright." The inclusion of a knowledge requirement creates an additional safeguard against overbroad application of the provision.
- most importantly, the law clearly permits circumvention for "permitted acts", which effectively preserves fair dealing rights (the statute also specifies the right to circumvent for encryption research). More impressive, the law includes a system to facilitate circumvention for permitted acts in the event that users are unable to circumvent a TPM themselves. In such cases, the law allows a "qualified person", which includes librarians, archivists, and educational institutions, to circumvent a TPM on behalf of a user (the user can also ask the copyright owner to unlock the work for them).
Finland Court on Effective Copyright Protection
Lots of interest in a new decision from the Helsinki District Court, which has ruled the copy-protection system for DVDs, known as CSS, is not an effective TPM and therefore circumventing it does not constitute infringement.
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