Section 29 of the Copyright Act contains one of the most important user rights in Canadian copyright law – fair dealing for the purpose of research or private study does not infringe copyright. For many years, this provision was narrowly defined such that the education and library communities adopted relatively conservative approaches to defining what constituted fair dealing. In recent years, however, Canada has experienced a dramatic shift in the vibrance and importance of fair dealing. In a trio of cases, the Supreme Court of Canada strongly affirmed the need for balance in Canadian copyright law. The shift began in the Theberge, where Justice Binnie, in discussing the copyright balance, stated that:
Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP
Copyright
Major Record Labels Adopt ACS
The online community is buzzing today over the announcement that Universal Music plans to "give away" music online through a new service called SpiralFrog (which is also negotiating with other major labels including EMI). The approach is not particularly innovative – the service will be ad-supported, something people like Terry McBride from Nettwerk has been advocating for months and other sectors (television, radio, online gaming, newspapers) have been offering for some time. Moreover, the service is likely to face some challenges – by relying on DRM that is not compatible with the iPod, it is leaving out a large part of the market.
That said, there are at least two bigger points worth making.
30 Days of DRM – Day 11: Involuntary Installation of Software (Circumvention Rights)
Yesterday's post addressed the negative impact of anti-circumvention legislation on security research. There is another security issue that merits discussion – the involuntary installation of software that may constitute a personal security threat to individual computer users. Such software is frequently classified as spyware – software programs that are placed on users' computers without their informed consent that proceed to cause havoc by compromising personal information, posing an identity theft risk, sending spam, and infecting other computers.
While spyware can worm its way onto a personal computer in many different ways, inclusion within a DRM is a possibility. The best-known example of the DRM-spyware connection is last year's Sony rootkit fiasco.
30 Days of DRM – Day 10: Security Research (Circumvention Rights)
Given the priority currently accorded to security concerns, it is difficult to understand how any government would be willing to undermine security in the name of copyright. That is precisely what has occurred in the United States, however, where computer security researchers have faced a significant chilling effect on their research due to legal threats from the DMCA. The U.S. cases are fairly well known: they include Princeton professor Edward Felten facing a potential suit from the RIAA when he planned to disclose his research findings in identifying the weaknesses of an encryption program and Dmitri Sklyarov, a Russian software programmer, spending a summer in jail after presenting a paper at a conference in Las Vegas that described his company's program that defeated the encryption on the Adobe eReader.
Even more compelling are recent comments from Professor Felten at a conference at the University of Michigan.
30 Days of DRM – Day 09: Reverse Engineering (Circumvention Rights)
The inclusion of a reverse engineering circumvention right is another obvious necessary provision. Reverse engineering is described by the Chilling Effects site as follows:
Reverse engineering is the scientific method of taking something apart in order to figure out how it works. Reverse engineering has been used by innovators to determine a product's structure in order to develop competing or interoperable products. Reverse engineering is also an invaluable teaching tool used by researchers, academics and students in many disciplines, who reverse engineer technology to discover, and learn from, its structure and design.
The need for a reverse engineering provision therefore follows from some of the discussion last week – it is pro-competitive as it facilitates the creation of compatible devices as well as greater competition in the marketplace.
While there may be general agreement on the need for a reverse engineering provision, it is essential that Canada avoid the U.S. DMCA approach which has been widely criticized for being too limited in scope and thus woefully ineffective.
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