Meera Nair

Twice the fun

In Posts on July 31, 2010 at 7:57 pm

Two events to report on this week … one domestic and one international (sort of).

The U.S. Librarian of Congress relaxed some of the prohibitions upon circumventing technological protection measures (TPMs) as found in the United States Digital Millennium Copyright Act (DMCA). Included was a measure that directly benefits educational uses of copyrighted materials. When done in good faith, for the purposes of criticism and review, college and university professors are permitted to extract clips from movies encrypted on DVDs. This expands a previous allowance which was offered only to film and media studies’ professors. (I presume this measure can be enjoyed by all teaching professionals at post-secondary institutions, including those of sessional ilk.) Also mentioned by name as eligible for the provision are film and media studies students. And the provision applies to creation of documentary films and noncommercial videos, again when conducted in good faith and for the purposes of criticism and review.

Other measures will assist consumers; you can read about them here. What I find interesting is the timing and the process. The United States continues to move away from the position of absolute deference to TPMs while Canada stands ready to embrace it. Bill C-32 does not permit the circumvention of TPMs for legitimate fair dealing uses. As far as the process goes, it was refreshing to discover that the Librarian is required to periodically review the activities constrained by TPMs with a very specific purpose:

As I have noted at the conclusion of past proceedings, it is important to understand the purposes of this rulemaking, as stated in the law, and the role I have in it. This is not a broad evaluation of the successes or failures of the DMCA. The purpose of the proceeding is to determine whether current technologies that control access to copyrighted works are diminishing the ability of individuals to use works in lawful, noninfringing ways.

The review process is open; all interested parties can submit written comments on the topic. This was the fourth such review.

Now to the home front.
The Federal Court of Appeal (FCA) released its decision concerning the charges on photocopied material used in schools from Kindergarten through to Grade 12. (Cited as 2010 FCA 198, and dated to 23 July 2010, the online text is not yet available.) My thanks to FC for providing me with a copy.

The FCA reminds Canadians that in decisions of fair dealing, the category of applicable use is merely the beginning. To make a complete assessment of fair dealing, the multi-facetted inquiry set by the Supreme Court in CCH Canadian must be followed. The FCA did exactly that, via existing fair dealing categories of private study, research, criticism and review, and ruled that the majority of photocopying taking place in schools will remain as subject to compensation. This decision is significant; it recognizes that educational activity is already represented through fair dealing and simultaneously reinforces the fact that a category by itself is insufficient to claim fair dealing. Hopefully this will quell the misconception that Bill C-32’s inclusion of education within fair dealing is “expropriation”.

Update: Here’s the CanLII link for 2010 FCA 198

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