Digital locks[DLs] are ‘virtual fences’ put around digital content.1 An example is a password authorizing the access to an online music store such as iTunes. The government, through legislation, has the responsibility to discourage abuses of DLs.
There are at least two types of DLs abuses that harm society. The first involves the actions of users and results in the ‘tragedy of the commons’[TCs]. TCs doctrine holds that we tend to overuse and hence exhaust resources that are: free, finite and held in common. Although digital content could be utilized and copied infinitely, the ‘generation’ of such content depletes. Users circumventing DLs to gain free access to copyrighted material leave creators unrewarded for their work; hence creators lack incentives to invent in the future.2
The second DLs abuse relates to owners and causes the tragedy of ‘anti-commons’[TACs]. In this scenario, owners are given unlimited rights to digitally lock any content. Consequently, information is privately held and very few ideas remain in the public domain to encourage inventiveness.
Recent legislative attempts to alleviate TCs resulted in bill C-61.3 If the bill had not died on the order paper, Canadians who circumvented DLs would have faced heavy fines or imprisonment. Critics espouse that such legislation serves only the interests of big corporations who usually own creators’ copyrights; it is detrimental to users who face harsh penalties.4 I disagree. Such legislation is important to society as a whole. It does not only alleviate TCs by allowing owners to make profit on their work but it also ensures that users realize the serious consequences of circumvention. Users inability to evaluate the cost of DLs circumvention comes from the fact that digital technology has made the dissemination of information non-rivolrous and inexpensive. I know that using my friend’s password to download music from iTunes does not cost Apple more money because the database of songs does not vary with the number of users. Furthermore, since my circumvention does not affect authorized users’ rights, I feel I have done no wrong. If the government does not penalize this activity, I would think circumvention has no serious consequences.
Bill C-61 is less successful in addressing TACs. S.3 of the current Copyright Act alleviates TACs by utilizing the doctrine of fair dealing.5 It allows infringement of copyrighted material when it is done for the purpose of research, private studies, etc. Thus sufficient number of ideas remains in the public domain, which encourages inventiveness.
Bill C-61, however, undermines fair dealing. In particular, the bill states that the Governor-in-Council might make regulations requiring owners to unlock DLs that impede fair dealing. However, I agree with professor Michael Geist who notes that the bill does not create ‘an independent system that gives users the right to demand’ access to content for fair dealing.6 This result makes the bill inconsistent with Canadian case law. The SCC has clearly stated that fair dealing is not just a defence against an alleged infringement; it is a right that users should freely exercise.7
[1] Ian Kerr, Alana Maurushat, and Christian Tacit, ‘Technical Protection Measures: Tilting at the Copyright’s Windmill’, p.13 at http://www.commonlaw.uottawa.ca/index.php?option=com_content&task=view&id=1363&contact_id=42&lang=en.
[2] James Gannon, ‘Web Ad-Blocking – Self-Cannibalizing But Here to Stay’ at http://www.yorku.ca/dapina/lw2970/ip/?p=82
[3] See a copy of bill C-61 at http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3570473&Mode=1&Language=E
[4] Peter Nowak, ‘Copyright law could result in police state’ at http://naccarato.org/atadistance/?tag=digital-locks
[5] See a copy of the Copyright Act at http://www.canlii.org/ca/sta/c-42/
[6] See Michael Geist blog at http://www.michaelgeist.ca/content/view/3287/380/
[7] CCH Candian Ltd. v. Law Society of Upper Canada, [2004] S.C.J. No. 12