Meera Nair

Bill C-32: Copyright Modernization Act

In Posts on June 2, 2010 at 8:31 pm

Michael Geist has given the first wave of news concerning the proposed amendments to the Copyright Act. He aptly describes the proposal as a glass-half-empty-half-full. There are some positive elements to talk about: parody included in fair dealing, ISP independence, some consumer-friendly provisions, and reductions in statutory damages. But the negative is hard to overlook: complete obedience to a technological protection measure (TPM). While a use of a copyrighted work may in fact be legitimate, if implementing the use requires penetrating a TPM, the use will be deemed infringement.

This has terrible implications for fair dealing. Fair dealing is the best means to maintain the grant of copyright, all the while allowing, on a case by case basis, the opportunity to make productive uses of works. But technology can accomplish what the precepts of law disallow by providing copyright holders with absolute control over works. Such an unlimited exercise of power can only be detrimental to creativity en masse.

What I find retrograde is that the best compromise, or perhaps the only one, seems to be to ensure that circumvention of TPMs for permissible uses will be exempted from a charge of infringement. This means that fair dealing (or other acceptable measures) might only be enjoyed by those individuals who choose to break the locks. Setting aside the fact that this requires a certain aptitude for lock-picking, I question why Canadians have to break into a work to enjoy a right that is acknowledged to be theirs?

  1. I particularly appreciate your comment about the possibility that only those who pick the lock may enjoy the exemption. In drafting laws one of the most sacred drafting rules is that the law should not encourage the breaking of either statute law or contractual provisions. This may do both.

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