Why Can’t I Legally Pick ‘Digital Locks’ to exercise my Fair Dealing Rights?

source: shutterstock.com

This wasn’t quite the way the question was stated, but in effect this was what was being asked by a student who wanted to know why it wasn’t ok to access (i.e. hack into) encrypted digital content when her purpose was to make a copy for legally-permitted private use and study. After all, the logic goes, the Copyright Act (in Canada) permits certain fair dealing uses, such as private study, research, criticism, review, education, parody, satire, or news reporting, whereby limited copying is legal even if the work is protected by copyright. If the intended user can’t access the material because it is protected by a TPM (technological protection measure), commonly referred to as a “digital lock”, how can she/he exercise these fair dealing rights?

This is precisely the argument employed by copyright critic Michael Geist in his attacks on what he calls the “fair dealing gap”, referring to measures contained in the 2012 revisions to the Canadian Copyright Act that implemented Canada’s commitments to the WIPO Internet treaties. Article 11 of the WIPO Copyright Treaty requires Contracting Parties (Canada signed in 1997 and implemented in 2014) “to provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.”

Essentially the provision, as stated on the WIPO website, tackles the problem of “hacking” (or more politely “circumvention”). A good discussion of the details can be found in an article written back in 2010 by Dr. Mihaly Ficsor, former Deputy Director General of the World Intellectual Property Organization (WIPO) in charge of copyright and related rights, and reproduced on Barry Sookman’s blog. Allowing creators to protect (i.e. encrypt) their works with both “access controls” and “copy controls” comes along with being a contracting party to the Internet treaties.

According to Geist however, undoing the TPM anti-circumvention restrictions should be one of the objectives for the review of the Canadian Copyright Act, currently underway. He has been beating this drum for some time, and is back at it, claiming that “There is a need to fix this problem by establishing an exception within the anti-circumvention rules to allow for circumvention for any lawful purpose.” He also claims there should be a fair dealing exception to the digital lock (TPM) rules instituted in 2012, because “there is a gross mismatch between user rights in the analog world and the digital world”. But is this really the case?

As I explained in earlier blog on this issue, the TPM provisions prevent illegal circumvention of the digital protections rights-holders place on their content in order to control and prevent unauthorized access to that content. Access controls (or “paywalls”) become the key to opening the door to digital content, allowing the owner of the content to permit access to consumers in return for agreed terms, normally payment of a specified amount. They are essential for any successful business model in the digital environment because they not only prevent unauthorized access, which would undermine the business model, but they permit differentiated access, such as longer term enjoyment of the content in return for a higher payment.

In the analog world, before exercising your rights to copy under the circumstances specified in law, you have to acquire content in a legal way, such as purchasing, subscribing, renting or borrowing, unless the content is made freely available by the rights holder without payment. The same principle should hold true in the digital world. Content must be legally acquired before copying rights can be exercised, and copying should be limited to the purposes outlined under fair dealing.

This is all the more important since copying in the digital world often leads to abuse because a digital copy is perfect every time. Thus it is all too easy to access and distribute content that has either not been paid for, or the copying is abusive going well beyond allowable uses. (Copies of copies in the analog world are generally not a problem because the quality of the copy normally degrades the more times it is copied.) Therefore, in order to survive in a digital world, content creators and owners restrict access to their content though access controls, and sometimes control the extent of copying through copy controls. However their interest is not in preventing access. They need and want an audience, and thus enable access (in effect giving the user the key to the digital lock) in return for payment. This is simply applying the old-school concept of purchasing an analog copy to the digital world. Content is generally not given away for free in the analog world so why should one expect this to be the case in the digital environment?

As I explained to my student, suppose you want to reproduce some pages of a book or an article in a newspaper for research purposes, you will need to first purchase the book or borrow it (from a friend or a library), or purchase the paper from the newsstand, before making your copies. Think of the counter of the newsstand or book store as being the digital lock. When you pass over your money to the person behind the counter, it is the same as purchasing access to the content protected by a digital lock. In the analog world the newspaper comes by subscription or for sale at a newsstand, unless it is a 100% ad supported giveaway paper. That is how the journal survives, pays its staff and brings you the news.

In the digital world, unless it is 100% ad supported, the digital paper is usually behind a paywall that you have to pay to go through. Once you have access, feel free to exercise your fair dealing rights—but don’t claim that your fair dealing rights trump the right of the content creator to determine the terms on which the content will be made available to the public. You wouldn’t climb over the counter of the newsstand to steal a paper, copy an article or two, and then return it without payment (while reading all the parts of the paper that interest you in the process), on the grounds that you are allowed to make copies for private or educational use. You wouldn’t shoplift a book, go down the street to the copy-shop and copy the excerpts you want, and then sneak the book back onto the shelf (if you returned it all), arguing that you were within your rights because limited copying is protected by fair dealing. Why do people think they should be allowed to do this in the digital world?

I think I converted one person with my “old school” examples, but I doubt if I will be able to convince Michael Geist and others who seem to think that just because content is digital, a completely different set of laws and ethics applies. You can’t pick a digital lock because it is not legal to do so, and may it ever remain so. This provision should not be changed under the current Copyright Act review. It would be grossly unfair to creators and would destroy the business models that are just starting to be established and get traction in the online world. Exercise of fair dealing rights is no reason to allow free, unpaid and unfettered access to the content created by others.

© Hugh Stephens 2018. All Rights Reserved.

3 thoughts on “Why Can’t I Legally Pick ‘Digital Locks’ to exercise my Fair Dealing Rights?”

  1. You are quite a professor. The ones around here, Brazil, are the first to suggest to students that they can disrespect copyright however they want. Happy to see something different exists out there.

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  2. Mr. Stephens: Another informative and informed post. I have been saying to colleagues in the library and archives communities for the past while that the proposal for an amendment to the Copyright Act to provide for circumvention may not be necessary. Section 41.21 (2) (a) of the Act (the Regulations) provides for the Governor in Council to make regulation “(a) prescribing additional circumstances in which paragraph 41.1(1)(a) does not apply, having regard to the following factors… (iii) whether not being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect criticism, review, news reporting, commentary, parody, satire, teaching, scholarship or research that could be made or done in respect of the work, the performer’s performance fixed in a sound recording or the sound recording…”. It seems to me that such a regulation would have the necessary flexibility to meet at least the educational needs identified by Prof. Geist and others (setting aside for the time being a definition of ‘education’, which seems to be a contentious matter in the current Copyright Act review), without opening the way for every infringing circumvention set out in your post.

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