preparation

When the Copyright Act was last amended in 2012, the government of the day sought to accomplish a number of objectives. The summary of Bill C-32 (unveiled for first reading on 10 June 2010) detailed the legislative intent:

(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;
(b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;
(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;
(d) allow educators and students to make greater use of copyright material;
(e) permit certain uses of copyright material by consumers;
(f) give photographers the same rights as other creators;
(g) ensure that it remains technologically neutral; and
(h) mandate its review by Parliament every five years.

The language of (c) and (d) is clear; “greater use” implies greater than what had previously been feasible. The specific mention of of education as a permissible purpose of fair dealing and the introduction of exceptions to facilitate digital distribution by libraries or distance education programs, suggested that educators, libraries and students could enjoy greater use of copyright materials. With respect to (e), the implementation of exceptions for time or format shifts, the making of backups, and the creation of non-commercial user-generated content were all to the advantage of consumers. Yet the previous government’s insistence that digital locks reign supreme, rendered many of the new exceptions inert and reduced previous possibilities for unauthorized use of copyright material.

In 2010, it was no secret that the digital locks provision of Bill C-32 was modeled on the United States’ Digital Millennium Copyright Act of 1998. Since its inception, the supremacy of locks in the United States has been systematically challenged through triennial reviews. Advocates for the lifting of blanket prohibition on circumvention could plead their case to the Librarian of Congress; if successful, they were granted a three-year lifting of the prohibition. (A notable reprieve occurred in 2006, in relation to educational uses of audio-visual works.) The latest review occurred in 2015; Mila Owen and Henry Thomas describe the outcome.

By the time C-32 was under discussion in Canada, it was abundantly evident that American overreach in protection of digital locks was impeding legitimate unauthorized uses (such as fair use) under American law.

Michael Geist declared Bill C-32 as “flawed but fixable.” However, the government refused to entertain thoughts of adjusting the prohibition on breaking digital locks; despite the logic that breaking a lock for a non-infringing use, should not trigger a charge of infringement. At a Standing Committee meeting on 25 November 2010, Minister of Canadian Heritage James Moore appeared unconcerned about the wider implications of casting locks as sacrosanct; in response to a question posed by Liberal Member of Parliament Marc Garneau, about the inconsistency in the government’s actions, Moore gave a peculiar answer:

[It] is a question about balance, and as far as my personal digital media consumption habits, I personally choose to buy products that don’t have digital locks. It’s my right as a consumer to be able to do that. As we’re seeing increasingly with technology, certainly the music industry, the television industry, and the film industry are creating products where people have the right to shift things from one format to another. … if you look at all the submissions we have received–we’re talking about music, television, video, video games, the software industry–everybody believes that if they’ve invested money, labour, and effort to create products and decide to protect those products by whatever mechanisms they choose to digitally, they should be allowed to do that. And consumers are free to purchase or not purchase those devices.

Garneau then questioned Jean-Pierre Blais (Assistant Deputy Minister, Cultural Affairs, Department of Canadian Heritage) about digital locks, with specific reference to fair dealing:

I would like to ask for clarification on the issue of digital locks and fair dealing. Would you say that in this bill digital locks trump everything? For example, if somebody wants to produce educational materials under fair dealing but they have digital locks on them, would the person be prevented from doing so?

It required repeating the question, but Garneau was finally given an answer:

Garneau: Let me ask specifically about education. That’s the one I brought up. Do digital locks trump the use of material, copyrighted material, for educational purposes under “fair dealing”?
Jean-Pierre Blais: In the bill, as drafted, the answer is yes.

As we approach 2017, perhaps Minister Marc Garneau could share his past experiences with Minister Mélanie Joly and Minister Navdeep Bains as they prepare for the mandated review of the Copyright Act.