p2pnet.net News Feature:- 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 21 to 25.

Go here for items 20 through 17, here for 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 25: Statutory Obligations (Circumvention Rights)

Section 32.1 of the Copyright Act features a list of several exceptions that ensure that the Copyright Act is compatible with other federal statutes that might require copying that would otherwise constitute infringement. While none of these exceptions are particularly crucial from a user perspective, the principle of consistently retaining the Act’s prescribed exceptions is an important one. The statutory obligation provisions include disclosures under the Access to Information Act, the Privacy Act, the Cultural Property Export and Import Act, and Broadcasting Act requirements. The Access to Information Act may be relevant here given that DRM’s submissions to the government could fall within an ATIP request. Similarly, the Broadcasting Act provision could become relevant. To address the issue, a blanket circumvention right to meet statutory obligations is needed.

30 Days of DRM – Day 24: Time Shifting (Circumvention Rights)

Given that my column today focuses on the WIPO Broadcast Treaty, the issue of time shifting and DRM comes to mind. The concept of time shifting arose from the U.S. Supreme Court decision involving the legality of the Sony Betamax machine. Arguments before the court focused on the fact that taping television programs simply enabled users to shift the time when they watch the taped program. More than 20 years later, the VCR (and increasingly DVRs and PVRs) are commonplace and consumers give little thought to the legal consequences of copying television programs.

While such activity is protected in the U.S., there is nothing in the Copyright Act in Canada that would expressly permit time shifting.

Canada is not alone in that regard – Australia faces the same issues and recently proposed an exception to allow individuals to make copies of television shows for viewing at a later time. The “modernization” of copyright in Canada should obviously address this issue as well, either by expanding the fair dealing user right such that home television taping would be permitted (as Telus recently advocated in a letter to Canadian Heritage Minister Bev Oda) or by establishing a specific user right to time shift.

With a new time shifting user right in hand, the government will also need to ensure that the right is not rendered irrelevant through anti-circumvention legislation. Indeed, the WIPO Broadcast Treaty envisions providing specific legal protection for the use of technological protection measures on broadcasts, creating the prospect that the ability to time shift will be blocked by broadcasters who can then use anti-circumvention legislation to prohibit attempts to circumvent broadcast controls. A quick look at Canadian discussion lists devoted to digital cable suggests that this is already happening, as many users note that restrictions on digitally taping programs seem to come and go. Time shifting is well accepted practice and Canadian law needs an explicit time shifting right accompanied by a parallel circumvention right that preserves the ability to time shift.

30 Days of DRM – Day 23: Education Institutions (Circumvention Rights)

Much like the Libraries, Archives, and Museums provisions discussed yesterday, Canadian educational institutions also benefit from some specific exceptions under the Copyright Act. These include:

* Section 29.4(1), which permits copying a work to project in a classroom for education or training purposes

* Section 29.4(2), which permits reproduction or telecommunications of works as required for examination purposes

* Section 29.6, which permits educational institutions and their educators to make a copy of a news program to be shown to a class, while 29.7 covers any other program communicated to the public by telecommunication for a class presentation. These provisions are subject to several requirements including royalty payments and stringent record keeping.

All of these provisions face the prospect of being curtailed by DRM as the technology can be used to limit basic copying, reproduction, and copying of television broadcasts. Once anti-circumvention legislation is added to the mix, merely attempting to exercise those rights could constitute an infringement.

While many believe that these rights do not go far enough, they nevertheless should be preserved through an education institution circumvention right that match the statutory exceptions.

Ironically, the education community itself is effectively promoting the use of DRM as it pursues its ill-advised Internet exception. The exception would exclude works that are copy-protected, thereby encouraging the use of DRM for those that wish to avoid falling within the scope of the exception. Rather than pushing for this exception, the education community would do far better to promote limitations on the use of DRM within the education system and to ensure that existing education rights are not harmed by anti-circumvention legislation.

30 Days of DRM – Day 22: Libraries (Circumvention Rights)

Early in the series, I discussed the need for DRM-free library deposits as part of the legislated library deposit program that seeks to preserve Canadian heritage. There are additional library issues, however, that merit discussion. Section 30.1 of the Copyright Act grants libraries (as well as archives and museums) special rights to copy works in order to preserve or manage their collections. These are important rights and any anti-circumvention legislation must not be permitted to render them ineffective.

Section 30.1(1) provides that, under certain circumstances:

It is not an infringement of copyright for a library, archive or museum or a person acting under the authority of a library, archive or museum to make, for the maintenance or management of its permanent collection or the permanent collection of another library, archive or museum, a copy of a work or other subject-matter, whether published or unpublished, in its permanent collection

The circumstances that permit such copying include a copy that is:

(c) in an alternative format if the original is currently in an obsolete format or the technology required to use the original is unavailable;

(d) for the purposes of internal record-keeping and cataloguing;

(e) for insurance purposes or police investigations; or

(f) if necessary for restoration.

It is easy to see how each of these could apply in a DRM context, where the DRM becomes obsolete, the library needs to address the record-keeping or insurance purposes issue, or the physical version of the electronic copy becomes damaged and must be restored. In each of these instances, without a library right of circumvention that mirrors Section 30.1, anti-circumvention legislation could block the use of these provisions.

Moreover, Section 30.2 of the Copyright Act grants a further list of rights to libraries to facilitate research or private study on behalf of their patrons. This provision expressly excludes digital copies, however, a condition that makes little sense in the current environment and an issue that must surely be corrected as part of any “modernization” of the Copyright Act. Bill C-60 contained provisions that purported to allow for digital copies, yet they were so restrictive that they actually required libraries to employ digital rights management systems to limit the use of the digital copies. As I noted at the time, legislation that turns librarians into digital locksmiths is not a step in the right direction. Librarians should be able to stand in the shoes of their patrons unencumbered by the restrictive conditions contemplated in Bill C-60 and, consistent with the Supreme Court of Canada’s CCH decision, any new copyright reform should grant broad rights in that regard.

30 Days of DRM – Day 21: Print Disabilities (Circumvention Rights)

DRM has the potential to impede access for all Canadians, however, one group may be particularly hard hit by widespread DRM use and anti-circumvention legislation. Those with print disabilities (called perceptual disabilities in the Copyright Act) rely on new voice technologies to gain access to works that they are physically unable to view. DRM can be used to limit or eliminate the use of technologies to read text aloud, thereby rendering it inaccessible for a segment of the population. Indeed, for those that think this is a mere fairy tale, one of the better known instances of “read aloud” restrictions involved the Adobe eReader, which restricted the reading aloud function for Alice in Wonderland (the same technology was later at the heart of the Dmitry Sklyarov case).

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.]