30 Days of DRM: 17 to 20
p2pnet.net News View:- Michael Geists’s 30 Days of DRM highlights some of the exceptions and limitations that the government should include if a Canadian DMCA is introduced.
You can also contribute to the discussion through the 30 Days of DRM Wiki.
Below are items 17 to 20.
Go here for items 13 through 16, here for 7 through 12, here for 6 and 5, here for 4 and 3, and here for 2 and 1.
30 Days of DRM – Day 20: Public Domain (Circumvention Rights)
Concerns about the impact of anti-circumvention legislation on public access and use of public domain materials is frequently addressed by arguing that the legislation only protects works that are subject to copyright. Since public domain materials fall outside that definition, works such as old public domain films that are enclosed with DRM could be lawfully circumvented. Those assurances notwithstanding, without the inclusion of a public domain circumvention right, circumventing DRM on works that combine public domain content with materials still subject to copyright could give rise to liability. In other words, pure public domain may be circumvented (provided you have the tools to circumvent), but once someone builds on a public domain work, they will benefit from the anti-circumvention provisions.
This is a particularly pronounced concern for historians, archivists, and film scholars since their ability to use public domain film or video may be limited by anti-circumvention legislation. For example, the distributor of a DRM’d DVD containing public domain films along with an additional commentary track would likely argue that there is sufficient originality such that the DVD is subject to copyright and that anti-circumvention provisions apply. While even supporters of the DMCA acknowledge that anti-circumvention legislation should not be used to privatize the public domain, they are loath to establish a full exception or circumvention right for public domain materials, arguing that all works contain some elements of the public domain and that a blanket exception could be used to cover virtually any circumvention.
A middle ground on this issue would include at least two provisions.
First, a right to circumvent where the underlying work contains a substantial portion of public domain materials. The definition of “substantial” will obviously be crucial, but policy makers and legislative drafters must err on the side of ensuring that the public domain is not inappropriately enclosed. Second, given that anti-circumvention legislation encourages the use of DRM, the government should establish a policy that actively discourages its use on public domain materials. This could be achieved by blocking the right to use such technologies where non-DRM’d versions of the same works are not reasonably available to the general public.
On this issue, it is (again) worth recalling the words of Supreme Court of Canada, which emphasized the importance of the public domain in Theberge, stating that “excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.” Anti-circumvention legislation that does not adequately preserve access and use of the public domain fails to meet Justice Binnie’s test and a circumvention right for works that contain a substantial portion of public domain materials is therefore essential.
30 Days of DRM – Day 19: Backup Copies of Digital Consumer Products (Circumvention Rights)
Copyright reform is frequently characterized as “modernizing outdated copyright laws” (e.g. see yesterday’s excellent Ottawa Citizen’s masthead editorial). Leaving aside the fact that Canadian copyright law has undergone two major revisions in less than 20 years (along with several smaller changes), the reality is that the modernization is almost entirely focused on the interests’ of a select few industries. Consider the issue of backup copies. Yesterday’s post addressed a right of circumvention for backup copies of software, reflecting the need to preserve provisions in the Copyright Act that are nearly 20 years old. Those provisions rightly recognize that software programs are an intangible product that is susceptible to loss. Creating a backup copy right is a simple way to allow consumers to protect their investment.
If the government is serious about modernizing the Copyright Act, it could do worse than to start by modernizing the backup copy provision.
In 1988, backing up digital data meant backing up software programs. Today, digital data includes CDs, DVDs, and video games. All of these products suffer from the same frailties as software programs, namely the ease with which hard drives become corrupted or CDs and DVDs scratched and non-functional. From a policy perspective, the issue is the same – ensuring that consumers have a simple way to protect their investment.
“Modernizing” copyright law should include bringing this provision into the 21st century by expanding the right to make a backup copy to all digital consumer products. As with the backing up software programs, TPMs quickly emerge as a concern since they can be used to block the ability to make such copies. Copyright law should be amended to permit consumers to make backup copies of their digital products, accompanied by a circumvention right to ensure that backup copying is not blocked by the combination of TPMs and anti-circumvention legislation.
30 Days of DRM – Day 18: Backup Copies of Software (Circumvention Rights)
As part of a major set of copyright reforms in 1988, Canadian copyright law was amended to allow for the making of backup copies of computer programs. Section 30.6(b), the backup copy provision, is quite narrow, permitting the making of a single backup copy of a computer program “for a person who owns a copy of the computer program,” provided that the copy is for backup purposes only and that it is destroyed “immediately when the person ceases to be the owner of the copy of the computer program.”
This provision, which has not been tested in the courts, raises the interesting question of whether owning a copy of the computer program refers to owning the copyright in the computer program or owning the physical copy of the computer program. Many commentators believe that it refers to copyright ownership, in which case the provision is relatively meaningless given that most consumer software is licensed and not owned (although the enforceability of licenses that prohibit backup copies would make for an interesting test case).
The provision would be far more useful (and make much more sense) with the latter interpretation, however.
30 Days of DRM – Day 17: Broken or Obsolete Technology (Circumvention Rights)
The inclusion of a right to circumvent in the event that the TPM breaks or becomes obsolete is relatively uncontroversial. The U.S. Registrar of Copyrights has included a specific exception for this situation since 2000 and the Australian Parliamentary Review Committee recommended the inclusion of such an exception this year. The exception reflects the recognition that the continual evolution of technology places the investment that consumers make in entertainment and software products at risk in the event that a TPM ceases to function or becomes obsolete. While products do not come with a guarantee to function forever, the law should not impair consumers who seek to circumvent techologies that are no longer supported and thus create a significant barrier to access to their own property.
Michael Geist
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist[at]uottawa.ca and is on-line at www.michaelgeist.ca.]
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