Meera Nair

Posts Tagged ‘TPMs’


In Posts on June 13, 2016 at 5:38 am

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.


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

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?

It wasn’t news…

In Posts on May 29, 2010 at 8:06 am

On Thursday Sarah Schmidt reported in the National Post that Industry Minister Tony Clement had broken copyright law in building his iPod collection. He had transferred content from CDs shared within his family, even though content shifting is not permitted by the current Copyright Act. But as the Minister said, “That’s what happens in a family. You do tend to share music that way and I think most people would find that to be perfectly acceptable behaviour. But our current law is so antiquated, it doesn’t contemplate that situation.”

In the comments, Steve the Pundit asks, “Seriously, this is NEWS?!”

My answer: it wasn’t news; it was a press release.

The proposed amendments are rumoured to be just days away from unveiling. I find it hard to believe that one of the ministers in charge would be so rash as to confess to behaviour that might end up leaving him on the wrong side of a new law. Far more likely is that this was the Federal Government’s way of softly publicizing one aspect of its proposed reforms. To soothe the electorate, and position the amendments as being family-friendly. It makes for good politics.

And it’s plausible that the amendments will allow some content shifting. The real question is will such an allowance then be nullified by other proposed measures? Meaning to say, will technological protection measures reign supreme? Ministers Moore and Clement can giveth in one section, and taketh in another. We’ll have to wait and see.

But Minister Clement’s remarks were interesting for another reason. His rationale was based on the practices exercised within families and deemed acceptable by people in general. I hope that same logic carries when he considers fair dealing. To be able to make good-faith critical and productive uses of existing work is the essence of creativity; fair dealing enables such uses. Fair dealing may be esoteric in name, but the practices it represents are not.

Fair Dealing becomes worse-than-antiquated if content is locked down – it becomes useless.

My Submission…

In Posts on September 4, 2009 at 1:05 pm

My letter to the Ministers and my submission

September 4, 2009

Honourable James Moore
Minister of Canadian Heritage and Official Languages
House of Commons
Ottawa, Ontario
K1A 0A6

Honourable Tony Clement
Minister of Industry
House of Commons
Ottawa, Ontario
K1A 0A6

Re: Submission for Copyright Consultation

Dear Ministers Clement and Moore,

Thank you for the opportunity to convey input to the copyright consultation process. As evidenced by the volume of submissions, Canadians are eager to engage with the task of designing a copyright law that mediates between the challenges and opportunities of digital technology coupled with world-wide networks of circulation. However, given the polarity of opinion on this subject, responding to Canadian input will not be easy. One way forward is to consider, not only the content of opinion, but the line of thought that underwrites each remark or submission. The unspoken debate addresses the construction of copyright itself.

Many Canadians have unconsciously voiced a salient element of our current law, that copyright is a limited right. This needs to be consciously voiced now. Copyright is not, and has never been, a grant of absolute control. However, technology combined with licensing offers the possibility of such control. To succumb to that temptation means changing a structure of cultural policy that has been in place since its inception in 1710. Is Canada prepared for the consequences of such a change? Do we even know what the consequences could be?

To say the least, caution is advisable. I hope you will both be guided by a view often expressed at the roundtable discussions, the townhall meetings, and the submissions, namely, the importance of fair dealing. Fair dealing upholds the limitation upon a copyright holder’s reach. It is designed to enhance individual creativity through learning, teaching, and research – the ingredients necessary for innovation to thrive in Canada.

The challenge, and benefit, of fair dealing is that its legitimacy is not granted by the copyright holder, but is achieved through the actions of those wishing to use the copyrighted material. This places added responsibility upon individuals, which could be fostered through our educational and library institutions. Doing so would place Canadian creators on strong footing; it is in the space outside of a copyright holder’s reach that critical thought can flourish and enable new developments in both technological form and creative content. Something Canada cannot afford to ignore in the much-touted knowledge economy of the day.

Please find below my submission towards amending the Copyright Act. For your convenience, I have also attached this document as a pdf file.

These remarks are my own, and not the opinion of any institution I work with. I write this based on my experiences as a student, small business owner, researcher, educator, and parent.


Dr. Meera Nair
Burnaby, British Columbia

Partners 2009

In Posts on August 12, 2009 at 4:50 pm

Thank you to Partners 2009 for the opportunity to speak on copyright and the academy. This was a gathering of members from eleven post-secondary education advocacy groups, representing 330,000 Canadian students. Congratulations to all those who worked so hard to put this event together.

Needless to say, I talked almost entirely about fair dealing; what it is and the importance of CCH Canadian (2004). But from the question and answer session, a further thought came out…

One representative asked how technological protection measures (TPMs) affect fair dealing. Simply put, once a work is locked, it’s game over. Fair dealing is meaningless if you cannot access the material. Many individuals are anxious that IF Canadian law were to prohibit the circumvention of TPMs, such a prohibition should only apply to circumvention for infringing purposes. Meaning, if you circumvent a TPM for a noninfringing use, such as fair dealing, you will not run afoul of the law. Yet, there is a question of why permit the use of TPMs at all? TPMs take away existing rights available to Canadians. To limit access to published work is to deny fair dealing. Said another way, TPMs violate a structure of law that has been in place since the creation of copyright itself (nearly 300 years) and present in Canadian law since its inception in 1924.