A rare copyright win for the public – but a small one, only in Canada, and possibly temporary

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 just 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.

Featured image by Stable Diffusion.

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