A Rare Copyright Win For The Public; But A Small One, Only In Canada, And Possibly Temporary
from the sometimes-the-public-actually-wins dept
It is extraordinary that within the copyright world it is accepted dogma that legal protections for this intellectual monopoly should always get stronger – creating a kind of copyright ratchet. One of the manifestations of this belief was the WIPO Copyright Treaty, signed in 1996, which extended copyright in important ways. A key element was the prohibition of any circumvention of copyright protection systems for any reason – even if it were for a legal purpose. This meant, for example, that if a work’s copyright had expired, it would be nonetheless illegal to access this public domain work if doing so required circumvention of any protection that had been applied. In effect, copyright term would become infinite.
In the US, the WIPO copyright treaty was implemented in the 1998 Digital Millennium Copyright Act (DMCA). The EU followed a few years later with the 2001 Information Society Directive. In Canada, it was not until 2012 that the relevant law was passed, the 2012 Copyright Modernization Act. As the Canadian copyright expert Michael Geist explains, the law was controversial, not least because of fears that it might restrict perfectly legal activities:
The classic example was that a user might be entitled to copy a portion of a chapter in a book, but if the book became an e-book with a digital lock, the publisher could use technology to stop copying that was otherwise permitted under the law. If the user sought to circumvent or by-pass the technology to assert their rights, that act of circumvention would itself become an infringement even if the underlying copying itself was permitted.
This issue has been at the heart of a case that has been heard in multiple Canadian courts during the last eight years. The Federal Court in Canada has recently issued what Geist calls a “landmark decision” on copyright’s anti-circumvention rules, which concludes that digital locks should not “trump” fair dealing:
Rather, the two must co-exist in harmony, leading to an interpretation that users can still rely on fair dealing even in cases involving those digital locks. The decision could have enormous implications for libraries, education, and users more broadly as it seeks to restore the copyright balance in the digital world. The decision also importantly concludes that merely requiring a password does not meet the standard needed to qualify for copyright rules involving technological protection measures.
Geist’s post explains the background to the decision in more detail, and notes that the case could still be appealed. He points out that “for now the court has restored a critical aspect of the copyright balance after more than a decade of uncertainty and concern”. It is extraordinary that it has taken so long merely to achieve something as mild as “balance”. What’s even more ridiculous is that this rare win for the public only applies in Canada. In most other countries, and in general, it is still illegal to circumvent digital locks to carry out perfectly legal activities with copyright material.
Follow me @glynmoody on Mastodon and on Bluesky. Originally posted to Walled Culture.
Filed Under: canada, copyright, digital locks, drm, fair dealing
Comments on “A Rare Copyright Win For The Public; But A Small One, Only In Canada, And Possibly Temporary”
So obviously, everyone should send their fair use works to Canada to remove the DRM; the original unencumbered work can then be used elsewhere under fair use laws (just not where copyright already prohibits use).
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Pretty sure circumventing anti-circumvention provisions with “I sent it to a guy in Canada and it just happened to come back this way” isn’t going to work. Though it would be deliciously ironic if it did.
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Back when the USA restricted development and distribution of cryptography some Americans worked in foreign countries in an attempt to sidestep the laws. As far as I know no one was ever prosecuted for doing such but by the early aughts the rules were greatly relaxed anyway.
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At that time, it was also illegal to export strong cryptography from Canada—as least if it came from the USA. Canadians could get the “good versions” of web browsers. People seem to have largely forgotten that.
Anyway, the workaround was to print the PGP source code in a book (using a font that could easily be turned back into binary data by a computer); then openly export that from the USA to Europe. The thought was that no court would dare to stop an American from exporting a book. A similar thing could be done today, for anti-circumvention software. Courts may not understand software, but they know the USA does not ban books.
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but they know the USA does not ban books
I keep reading here that they do
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https://en.wikipedia.org/wiki/Crypto_Wars
This never stops rhyming.
Chess versus checkers
Assuming this ruling sticks it is undoubtedly a good thing, but does anyone else have the concern if this would apply to fair-use of legitimately obtained media (e.g a DVD or Blu-Ray disc) or perhaps distribution of a mod-chip for a game-console to run third-party applications? A paywall on a website seems a little trivial to me…
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Circumventing a paywall would be circumventing a digital lock for a non-legitimate purpose (accessing copyright material without paying the relevant fee), and would therefore still be prosecutable under the anti-circumvention law. Nice try, maximalist, but no cigar.
Don't shoot the messenger
While I agree this is a good outcome and also that this shouldn’t exist as a crime I predict this decision will go away on appeal.
There are plenty of examples of things where you can get in trouble for doing something you’re entitled to do in a non-approved way.
Canada has, historically, been the more level-headed country when it came to copyright – maybe save for one or two occasions when the government tried to pander towards other maximalist interests for a better deal.
One thing always bemuses me when I hear of “the prohibition of any circumvention of copyright protection systems” – Amadeus Mozart famously transcribed Allegri’s Miserere mass, from memory after hearing it in the Vatican. The Roman Catholic Church at that time had proscribed any transcription of this mass, so you could say in respect of that piece of music, they were being copyright maximalists.
Mozart’s brain was a copyright circumvention device. Has anyone asked the copyright maximalists if Mozart’s brain should’ve been confiscated? As the European Union’s current copyright maximalists’ regulations demand.
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Similarly, in Gonzales v. Raich, SCOTUS basically said that anything that could hypothetically affect interstate commerce could be regulated under the Commerce Clause. So, growing a few cannabis plants for personal use can be banned, because the grower could choose to sell it across state lines.
The same could be said about any information in one’s brain: I could walk over to a different state and teach it to someone for a dollar. By that logic, the Commerce Clause could be used to regulate thoughts.
The one thing about making the spread of information illegal is that it emboldens “thieves” to spread the information further than if you had just let them be. Censorship didn’t work in the Soviet Union and it won’t work here either