Digital Rights Management and Fair Dealing regulation in Canadian Libraries

Table of Contents

Policy of Focus
Stakeholders
Key Voices
Timeline
Resources

Updated November 28, 2015

Policy of focus

  • Copyright is an legal instrument. Its goal is two fold and is better expressed by Article 27 of The Universal Declaration of Human Rights:
    • (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
    • (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
  • During history, Copyright Law has been adjusted multiple times, specifically when creators felt threatened by new technologies of distribution of content. This was true for the printing press, the broadcast technologies and for the Internet.
  • The Berne Convention for the Protection of Literary and Artistic Works —signed in Switzerland, in 1886— and the Agreement on Trade-Related Aspects of Intellectual Property Rights —which came into effect in January, 1995— are the global standard for copyright law. However, several countries (Canada included) had included clauses related to Intellectual Property in their international treaties, to adopt higher standards of protection.
  • Fair Dealing (or Fair Use) permits limited use of protected material without any permission from the right holder. Libraries are entitled to some of these permissions in accordance with the Copyright Act and the decisions of the Supreme Court. Fair Dealing is considered a fundamental part of copyright law as it guarantees the right to freely «participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.»
  • Fair Use provisions in Canada allow libraries, archives and museums, to “make a copy of a work in its permanent collection in an alternative format if the original is in a format that is obsolete or the technology required to use the original is unavailable or is becoming unavailable [and to] distribute materials digitally.”
  • Digital Rights Management (DRM) are technical means used by suppliers to limit the access or use of digital products, like e-books, scientific journals, e-readers and other devices.
  • The Copyright Modernization Act. Bill C-11, which received Royal Assent on 2012, made illegal to circumvent any digital lock or “access control” installed on a copyrighted work. By embedding controls within the product, providers can prevent the public from use that is non-infringing under copyright law as well as enforce restrictions that extend far beyond those specific rights enumerated in the Copyright Act (or other laws) annulling de facto the fair dealing provision for these works.
  • This problem is similar in nature to that posed by the U.S. government during the end of the Twentieth Century, when it attempted to forbid the use of encryption,a multipurpose technology like most of DRM-protected works, alleging that it could be used for criminal purposes (a similar argument has been made about the use of DRM-Free works for piracy).
  • The debate between Fair Use and Digital Rights Management has several implications for security research, open access to scientific articles, the preservation of copyrighted works and the right to the public to freely access the public domain (an additional resource for artists to create new works). As such, those affected are actively engaged in this debate.
  • The general proposal of such groups ranges from the complete elimination of Technological Protection Measures to a legal disposition that allows the trump of Fair Use over DRM. The Ecuadorian Government has included provisions that allow such exceptions for DRM-protected works, however it has not been voted till the date and its effects are yet to be defined. In New Zealand, The Law grants special rights to trusted third parties, such as librarians, archivists, and educational institutions, to circumvent on behalf of other users who are entitled to circumvent but technically unable to do so.
  • The Trans Pacific Partnership would have a significant impact over the fair use doctrine and digital rights management, however it seems that it is not likely to be ratified in America since most of the US presidential candidates had announced that they do not support the agreement. This is a conflicting point for Canada at the moment.

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Stakeholders

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Voices

Cory Doctorow – Consultant for Apollo 1201 Project – Electronic Frontier Foundation

Doctorow is a Canadian-British blogger, journalist, and science fiction author. On January 2015, he rejoined EFF as special consultant to the Apollo 1201 Project, a mission «to battle the pervasive use of dangerous digital rights management (DRM) technologies that threaten users’ security and privacy, distort markets, confiscate public rights, and undermine innovation.»

James Moore (Former Minister of Canadian Heritage 2008-2013)

James Moore was a Conservative Member of Parliament from 2000 to 2015, in hiw view «pirated products are a growing menace in Canada and around the world that requires strong government action [because t]hese products hurt our economy, undermine innovation [and] impede economic growth.» He pushed heavily for the reform of the Canadian Copyright Law as they were required on Canada to enter the TPP negotiations.

Dr. Michael Geist (Law professor at the University of Ottawa, he holds the Canada Research Chair in Internet and E-commerce Law)

Dr. Geist is the editor of several copyright books including The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (2013, University of Ottawa Press), From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda (2010, Irwin Law) and In the Public Interest: The Future of Canadian Copyright Law (2005, Irwin Law), the editor of several monthly technology law publications, and the author of a blog on Internet and intellectual property law issues.

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Timeline

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Resources

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