Sarah Jamieson_corrections

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Sarah Jamieson

March 6, 2014

Copyright and the Public Sphere: Ethical Repercussions of the Copyright Modernization Act

Abstract

This paper investigates the ethical issues surrounding the new provisions in the Copyright

Modernization Act. I will argue that the new law poses a threat to access to information,

individual privacy, as well as user and copyright holder rights. I will explore the implications of

digital locks, Technological Protection Measures (TPMs), as well as the new provisions for fair

use. In Part 1, I will explore Canada’s historic struggle to meet the challenge of ratifying a bill

that adheres to international copyright regulations. In Part 2, I will provide an ethical framework

to navigate the implications of fair use, circumvention law, TPMs, and anti-circumvention in the

Copyright Modernization Act. In Part 3, I will prove that the law can only maintain balance

between copyright holders and users through added and valid safeguards.

1 Introduction

There has been significant pressure for Canada to update its copyright laws to match

international provisions. As of 2012, the courts updated the laws accordingly with the Copyright

Modernization Act, an effort to accommodate the massive technological changes that have

transpired since the Government of Canada amended the CopyrightAct in 1997 (Black et. al

2012). The changes changed several facets of copyright, such as including education, parody,

and satire as an aspect of fair dealing (Soper 2013). It also included a number of amendments

that make existing exceptions more technologically accommodating. The law requires

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modernization to meet digital needs; however, certain aspects of the act have dire implications

for access to information, privacy, and user and copyright holder rights. Consequently, the

Copyright Modernization Act may contribute to the entropy of the public domain, violate privacy

rights of individuals, and discourage normalized use of legal content amongst users.

1.2 Definition of the problem

Copyright has multifaceted aspects that affect the balance between user and owner. This

paper will explore the delicate nature between encouraging innovation while protecting

intellectual property. It will also examine the international pressures Canada faced to update their

copyright laws, the difficulty with enforcing copyright through ISPs, and copyright infringement

behaviours and trends amongst specific age groups.

Stimulating Culture vs. Protecting Intellectual Property

Often, laws surrounding copyright have to acknowledge that both of the groups that they

serve have drastically different goals. Copyright owners want to control the access to their

works, and the public want a great deal of free content without addressing the needs of the

copyright holder (Hagen 363). Both of these groups lack understanding towards one another,

which makes copyright laws difficult to balance. In turn, this leads to a delicate balance between

what is fair to the copyright holder and what is accessible to the public to forward cultural works.

The Supreme Court of Canada stated the importance of maintaining this freedom in a just

manner: “The capacity of the Internet to disseminate ‘works of the arts and intellect’ is one of the

great innovations of the information age. Its use should be facilitated rather than discouraged”

(Hagen 363). However, many copyright owners are concerned that the internet has displaced

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their traditional dominance as distributors of content and it has diminished their revenues (Hagen

363). In turn, the International Chamber of Commerce has maintained that “intellectual property

theft is a huge and growing challenge” (Hagen 364). In order to restore the balance between

copyright holder and user, some aspects of the laws need to be updated to meet the challenge of

the technology.

International Pressure to Modernize Laws

Canada has had to meet the challenge of modernizing its copyright laws after repeated

pressure from international treaties. Canada was singled out by the International Chamber of

Commerce as a “major source of the world’s piracy problem,” and its failure to ratify the 1996

WIPO Internet Treaty has attracted criticism from many countries, including the neighbouring

United States (Hagen 364). The government attempted to ratify several bills that would meet

international copyright requirements, with no success. Therefore, Bill C-32, the bill that was

ratified and became the Copyright Modernization Act, aimed to comply with international

treaties.All laws pertaining to copyright infringement have to comply with the international

World Intellectual Property Organization (WIPO) and World Trade Organization (WTO) treaties

(Gervais 460). The Canadian Modernization Act had to incorporate the recommendations of the

WCT (WIPO Copyright Treaty) and WPPT (WIPO Performances and Phonograms Treaty) into

all of its copyright laws, whether or not it was feasible (460). If they failed to oblige WTO

requirements, Canada risked a trade dispute because the WTO also administers the Agreement of

Trade-Related Aspects of Intellectual Property Rights (TRIPs) (461).Therefore, it was in the

government’s best interest to comply with WTO, even if some requirements were incompatible

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with other laws in Canada. The government would have to either comply to these laws or risk an

embargo from WTO countries.

Regulating a Digital Platform

The Copyright Modernization Act aims to address the challenge of copyright

infringement in the digital platform, which is incredibly difficult to regulate. Copyright has

always focused on the ability for content creators to control the distribution of copyrighted

material. However, this became complicated online due to the speed and ease of disseminating

information. The ability to control the internet as compared to telecommunications is limited

because it is designed without a central point of control (Hagen 365). Therefore, the law chooses

to focus on an easier aspect to control – the information itself instead of the method of

distribution. This approach, which is suggested by the World Intellectual Property Organization

(WIPO) Internet Treaties, builds upon the ability of copyright owners to use technological

measures or “digital locks” to control access to their work and subject matter (Hagen 363).

However, there is some criticism about the effect digital locks will have on infringementbecause

they do not address the issue of distribution.

Internet Service Providers (ISPs)

Theorists have argued that the best way to stop copyright infringement through online

distribution is to limit it at certain access points. Critics have consideredlimited regulation

through ISPs (Internet Service Providers) (Hagen 365). These services provide an intermediary

access to the internet, so they may be easier to regulate as an access point. However, ISPs, as

common carriers, merely carry the communication of others – they do not themselves

communicate copyrighted subject matter (Hagen 366). ISPs are neutral disseminators of

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information similar to bookstores, libraries, and news vendors, who have no actual knowledge of

the information they share (Hagen 366). Therefore, the act chose not to focus on ISPs as a

method of control. It would be improbable to serve copyright goals while encouraging access to

information, maintaining privacy, and encouraging innovation through a technologically neutral

platform such as ISPs.

User and downloading behaviour

Internet users are increasingly acquiring digital books, music, and movies for their media

consumption. Additionally, copyright infringement has become easier in the last ten years due to

peer-to-peer (P2P) software, which allows users to download media through an internet network

using bitorrent technology or newsgroups (Gervais 455). A 2010 Industry Canada Study showed

that 29 per cent of Canadians have downloaded music through peer-to-peer networks, 20 per cent

have copied files from friends, and only 13.6 per cent of Canadians had paid to download music

(455). Additionally, there has been an increase of downloading from 25 to 34 year olds from

peer-to-peer sites – only 15 per cent and 19 per cent, respectively, download their content from

paid sites such as iTunes (455). The report published by the OECD in 2005 shows that Canada

accounted for 8 per cent of peer-to-peer users in OECD countries, while its population represents

only 1.2 per cent of the total population of these countries (456). Therefore, the government it

motivated to address illegal downloading since it is a common occurrence in Canada and

infringes on content creator rights. However, there seems to be a gap in the industry in keeping

in step with consumer demands. There is still a limited supply of legal ways to acquire digital

works easily. Consumer behaviour has recently shifted to consuming online media content

serviceslike Netflix, but the music industry has not increased the market for digital

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purchasingbeyond limited services such as iTunes. A lack of innovation in the industry may

prevent users from accessing music easily and legally, and they may be turning to illegal means

for digital content.

2 Ethical Framework and Analysis

TheCopyright Modernization Actexpands the concept of fair dealing, which is also

referred to as fair use. Fair dealing is an exception that permits the free use of copyrighted

material for private study and research, criticism, review, and news reporting (Black et. al 2012).

The bill expands fair use to include works for parody, satire and education (Copyright

Modernization Act 19 s.29 2012). These additions aim to give users freedom to participate in the

public sphere through the use of copyrighted works. Parody, satire and education are three areas

that have rapidly expanded on the digital platform, but do not detract from a copyright holder’s

income(Kerr 253-254). This balances the need between copyright needs and access to

information that fuels the public sphere. Fair use is also the key to stimulating innovation in

culture, and the new sections to the law aim to aid this process. However, there is some

ambiguity on how fair use will be regulated in relation to other parts of the law, such as digital

locks.The main critique of the digital lock provision is that it undermines other aspects of

theCopyright Modernization Act. Excessive legal protection of digital locks risks access to

information, user privacy, and the balance between owner and user rights.

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2.1 Access to Information

Digital Locks

A key principle of theCopyright Modernization Act is digital locks, which control access

to copyrighted material by restricting its reproduction or change of format(Soper 2013). The

Copyright Modernization Act incorporatesthe use of digital locks for external control of

content(Kerr 268).Therefore, it restricts access to information in order to ensure copyrighted

material is used legally. However, there is no specification to how digital locks interact with fair

use, which lends the law vulnerability to abuse. A user would not be able to use legally

purchased content for satire or parody if the content was subject to a digital lock, and they legally

would not be able to circumvent the lock. Therefore, their rights to fair use would be violated.

Additionally, if a user wished to provide legally-acquired information to another user, they

would have to lend the original copy. This would make an action that would be considered fair

use under the education provision and make it tedious for the user, despite its

legality.Additionally, locks may be a reassuring alternative to copyright infringers theoretically,

but many critics in the music industry agree that they are not enough to prevent infringement.

The Canadian Independent Music Association (CIMA) claims that the technology will not

prevent theft of a work in the digital realm (Bolipata 2012).

Although digital locks aim to protect the copyright holder, they are adigitized version of a

tool of exclusivity and limit access to information even if it falls under fair use. Digital locks will

frustrate users who wish to abide by the law, which may drive them to search for more practical

(and perhaps, illegal) methods to gain information.Digital locks do not give the user the

autonomy to use the technology fairly. Access to material is imperative to a democratic culture,

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but this provision’s conflicting language may undercut that right. In turn, the digital locks

provision has been called heavy-handed and unconstitutional because it undermines the concept

of fair use and the right to access information. Without the ability to freely disseminate

information, we threaten our ability to communicate democratically.

Public Domain

Free or affordable access to information isan essential aspect of democracy and helps

serve the public interest. The public domain is one communicative channel that allows access to

information for free or for a reduced price (Judge 598).Often, intellectual property enters the

public domain after its copyright expires, or when creators relax certain restrictions on

copyrighted works (598). The public domain can also include public data such as government

information. For the purpose of this paper, both public and private intellectual property will be

examined in context to the public domain.

Although a disclosure of public sector information has been called “a basic right of

citizens and a ‘public right,’” Canada has not implemented a national strategy to support public

access to public sector information in the Copyright Modernization Act (598). Public sector

information, which is information created by government in the course of governing, is essential

for transparency, accountability, democratic participation, and citizen engagement in the public

sphere (598). However, access to Crown Copyright still remains restrictive in Canadian law.

Copyright law states that Crown Copyright remains private and will never enter the public

sector, which prevents citizen access to a vast amount of important data to Canadians (598).

Access to public sector information is essential because it serves as a “building block for creation

of new knowledge or creation, to enable competitive imitation, to enable follow-on innovation,

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and enable low cost access to information” (Dusollier 13). In short, it provides knowledge and

education to the public, and therefore the new provisions should directly addressfair use of

Crown material. Although the Copyright Modernization Act addresses non-commercial uses of

copyright works, it fails to address both Crown copyright and public works (Judge 599). Also,

the act mentions TPM use in relation to a variety of works, but fails to directly address it in

context to the public domain. The provision outlaws digital lock circumventionforcopyrighted

works, but does not outlaw putting digital locks on works in the public domain (Goldstein 169).

However,in order to ensure information enters the public domain, the law should specify that it is

unlawful to put a digital lock on such works. This is the only measure that would render

copyright balanced between users and copyright holders (Goldstein 169). Although the law does

not directly state that digital locks would be placed on public domain works, it is

vulnerablewithout this addition. The act’s ambiguity leaves an opportunity for abuse in terms of

materials that are protected by digital locks. Additionally, there is no strategic plan on how to

incorporate copyrighted works with digital locks on them once they become public domain.

WIPO’s Scoping study recommended that laws specifically address this issue, warning against a

“widespread use of technical protection devices [that]might result in the de facto creation of new

information monopolies. This would be especially problematic in regard of public domain

materials” (Dusollier 44). Additionally, works that are already in the public domain can easily

become inaccessible due to the ambiguity in the law. If a new analysis or introduction is added to

a work in the public domain, the new author can justify adding a TPM on the entire work to

protect the section from copyright infringement (Goldstein 170). A foreward to On Civil

Disobedience by Henry David Thoreau would suffice to make its circumvention unlawful.

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The public domain remains the biggest safety measure for access to information and the

encouragement of the public sphere. Without the public domain, access to information would

remain primarily exclusionary. Therefore, copyright law must continue to protect access to

information in the digital sphere by protecting the public domain. Although it is important to

address the rights of copyright holders, the Copyright Modernization Act is unbalanced in terms

of access to information. Crown Copyright keeps a great deal of public sector information

inaccessible, and commodification threatens the public domain. Copyright already holds a

lengthy duration before becoming publicly accessible, and the act’s failure to address this issue

will lead to outdated and entropic informationas less works enter the public domain.

Effects on Culture

Access to information also has an effect on the creation of cultural works. Culture grows

through references to past copyrighted material, so it is necessary to maintain access to

information to benefit society. An increased amount of cultural works ensures innovation and

creativity in society, which are aspects of human flourishing. Therefore, society benefits when

more culture is made, which continues to be the grounding argument for protecting access to

information in copyright law (Aufderheide, Boyles &Bieze 878).Under fair dealing, peoplecan

quote copyrighted works without permission or payment as long at the work is not for

commercial profit, and they acknowledge the origin of the work (Aufderheide, Boyles &Bieze

877). Usually, their use is considered reasonablewhen the social benefit of using copyrighted

material is larger than individual owners’ loss (Aufderheide, Boyles &Bieze 877). Social benefit

includes the contribution to cultural works.However, the unrestrained use of digital locks could

lessen the available material for cultural works, even if its use is considered fair. Along with

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public domain material, fair dealing allows for an increase of works to inspire creativity and

increase cultural material.Creativity cannot occur unless someone has mastered an existing body

of culturalexpression and expectations (Aufderheide, Boyles &Bieze 877). Therefore, reasonable

access must be ensured to allow users to flourish, and any measures that block that ability should

not be considered reasonable in law.

2.2 Privacy

Individuals have a right to privately enjoy copyrighted works without undue surveillance

or lack of consent. Privacy allows a user to consumea broad amount of topics without fear of

intrusion (Macnish 2011). In turn, a person can develophis individuality and autonomy. It also

allows him to keep vulnerability private and maintain a level of personal safety (Macnish 2011).

Privacy is an essential part of democracy as well. Voter participation is anonymous in order to

prevent punishment from choosing a specific candidate. Similarly, we trust that our use of digital

content will remain private unless there is just cause to examine our activities for infringement.

There is a constant tension between the safety of the individual’s privacy and right of the

copyright holder to violate that privacy due to infringement. However, the consequence of

copyright infringement is not worth the preemptive action of surveillance. DRMs and ISP

monitoring infringe on this right because of their pre-emptive nature. Often, they gather

information for an infringement that has not occurred yet. If individuals are not given the

freedom of privacy, it will have a problematic effect on user’s choices. They will only select and

use content based on the critical eye of the public. These technologies challenge an individual’s

right to privacy, which is a valuable aspect for the individual as well as society.

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Digital Restriction Measures (DRMs)

If TPMs are considered a barrier, DRM can be seen as a surveillance system for digital

works (Kerr 273). A DRM can refer to any “technology systems facilitating the trusted and

dynamic management of rights in any kind of digital information, throughout its life cycle,

irrespective of how and where the digital information is distributed” (Kerr 272). DRMs manage

a variety of activities through surveillance technologies, identifying digital property and those

seeking to use it, in order to enforce licensing conditions (Kerr 272). DRM can also be used to

automate permission systematically, and the pre-set permissions are non-negotiable (Kerr

272).Copyright holders hope that the technology will be a solution for the vast amount of

copyright infringement that occurs, since it can automate and monitor the uses of a work quickly.

However, DRMs cannot adequately balance user and owner rights, which the Copyright

Modernization Act requires.Therefore, it is not a suitable technology to depend on for carrying

out the laws of the copyright act. To date, the public debate over deployment of DRMs has been

almost entirely dominated by utilitarian arguments regarding the social costs and benefits of the

technology (Kerr 286-287). Often, critics argue that the benefit of DRMS outweigh the costs of

possibly monitoring activity that is not illegal. However, critics are now concerned about the

impact that DRM technology will have on a user’s right to privacy. DRM surveillance monitors

and collects detailed informationabout people’s access to and use of copyright works and other

information, which is a new aspect of copyright (Gervais 531).Originally, copyright law rarely

entered into the private sphere:

Copyright did not directly apply to end uses, even though formally users were making

copies and, inrarer cases, performing or communicating works.…[On the Internet]

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copyright has tried to enter deep into the private sphereof end-users, thus breaking with

two centuries of tradition and practice. (Gervais 531)

In basic terms, DRM implicates privacy because its continuous surveillance function canprovide

copyright holders with highly detailed information about the reading, browsing,listening and

viewing habits of individuals(Canadian Association of Research Libraries 6). The type of

information that DRMs gather and the amount of detail they collect are violations of an

individual’s privacy. First, this information is often collected in private spaces – for example, it

can include an individual enjoying a movie or song in their home.Without the ability to enjoy

copyrighted works in private, a user may adjust his behaviour due to surveillance. Additionally,

the listener can be monitored even if they are engaged in legal activity, which violates their right

to privacy. Detailed information about a user’s habits is sensitive information and unprecedented

without a justifiable reason for collection. They have not committed an illegal act, so it is

immoral to violate their privacy until there is legitimate evidence of harm or violation of the law.

Second, consent is often implied instead of overtly sought, which often misleads users on the fact

that they are being observed. This actively misleads the user into an agreement that is not

forthright and transparent, thereby making it deceitful.

The first public criticism over DRM occurred when Sony BMG installed DRM

technology on music CDs without explicit warning to consumers (Canadian Internet Policy and

Public Interest Clinic 5). The DRMs created aprivacy and security breach for computer

networks and individuals, prompting the U.S. Department of HomelandSecurity to issue a public

statement recommending that individuals not upload content with DRMs (Canadian Internet

Policy and Public Interest Clinic 5). The Texas Attorney General argued that DRM violated the

state’s spyware and deceptive trade practices laws becausethe DRM transmitted an individual’s

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personal information to Sony BMG(Canadian Internet Policy and Public Interest Clinic 5). This

case has continued to worry critics about how DRMs may affect Canadians’ privacy. However,

instead of proposing provisions that would protect the privacy of citizens from DRM, the

government imposed provisions that would protect the circumvention of DRMs.Neither the Data

Protection law nor the Canadian Modernization Actadequately address privacy issues associated

with DRM(Canadian Internet Policy and Public Interest Clinic 9). Data protection circumvents

privacy protection by forcing users into an agreement policy that is non-negotiable. Often, a user

agreement pops up in a program when an individual wants to access content. Not only is the

policy often lengthy and difficult for the average user to understand, it forces an individual into

an unreasonable situation in regards to accessing content – either they agree to the policy, or they

refuse and lose the ability to access content they have legally acquired through payment.

Individuals are often unaware of the surveillance that is involved in agreement policies, and they

are left with little choice for accessing content without consenting. The Canadian Modernization

Act should include provisions that provide user options for maintaining privacy, and user

agreements should be forthright about how a user’s information will be used in concise, simple

language. The act should also include safeguards for circumvention to protect user’s rights, since

privacy is essential for freedom and authentic expression.Consumers should retain the right to

enjoy works privately andaccess to content must not be conditional on the surrender of consumer

privacy.

ISP Data

Before the enactment of the Copyright Modernization Act, it was unclear if Internet

Service Providers (ISPs) had liability for the content they carried. However, ISPs are now

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exempt from liability for copyright infringement when they are acting solely as intermediaries

(Black et. al 2012). Despite this change in responsibility, the bill does have suggestions on how

ISPs can prevent copyright infringement. The act includes anotice-and-notice system,

whichinforms suspected infringers through their ISP in a two-step process: first, the copyright

holder notifies an ISP that they are investigating the infringement; second, the ISP then forwards

this notification to the subscriber (Bolipata 2012). They wouldalso be required to retain identity

data about their customers for six months (Bolipata 2012). If thecopyright holder commenced a

lawsuit within that time, then the ISP would have to retainthe identity data for a further year

(Bolipata 2012).

The ISP proposals raise a number of questions regarding privacy. Firstly,the requirement

to retain customer data for six months conflicts with past precedents about ISP information. In

BMG Canada v. JohnDoe,the court refused to order disclosure of identity information where

there had beena delay of approximately six months between the copyright holders’ investigation

and thefiling of the application in court (Hagen 30). Based on the evidence of the ISPs, the court

confirmedthat the delay may cause inaccuracy in the information.Also, the requests often did not

narrow down to a single user. Instead, the Society of Composers, Authors and Music Publishers

of Canada (SOCAN) requested a blanketed search for infringers. Since ISPs expose sensitive

information about an end user, the judges claimed that courts should be wary of “adopting a test

that may encourage suchmonitoring.” (SOCANv.CAIP155).The court was concerned that

establishing a court order would implicate too many userswithout proof, violate their privacy,

and implicate innocent users through outdated information. Therefore, the court declared that

“the greatest care should be taken to avoid delay between theinvestigation and the request for

information” (Hagen 35).Although theCopyright Modernization Act now specifies how long

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ISPs must keep information, it does not specify what information ISPs have to keep, which

leaves vulnerability for privacy abuse. It also contradicts former precedents that the court has

carefully considered in the past for reasonable grounds. Therefore, it should reconsider the

implications of releasing ISP information to copyright holders.

Bill S-4: The Digital Privacy Act

Arecent inquiry about copyright infringement reflected public concerns about privacy.

TekSavvy, an ISP, notified its users that Voltage Pictures was investigating copyright

infringement for the movie The Hurt Locker (Oliveira 2014). Voltage Pictures requested the ISP

information for a number of subscribers, but TekSavvy refused until the company provided a

court order (Oliveira 2014). Presently, the law works under a gatekeeper system that allows the

ISP provider to voluntarily provide information about its customers or ask for a court order

(Hagen 30). Although this increased the likelihood of privacy violation, it also showed that ISPs

could maintain some protection for the privacy rights of their consumers. However, in April

2014, the government introduced a bill that would greatly affect two freedoms of the Copyright

Modernization Act(Ling 2014).Bill S-4 removes the requirement for a company such as Voltage

Pictures to have a warrant to gain information about a user, as long as it is “made to another

organization and is reasonable for the purposes of investigating a breach of an agreement or a

contravention of the laws of Canada” (Holmes et. al S.10. 7(3)d.1). Second, it allows an

organization to refrain fromnotifying a suspected infringer that they are being investigated if the

“disclosure with the knowledge or consent of the individual would compromise the

investigation” (S.10.7(3)d.1). In turn, the bill removes the ability for the ISP to notify a user that

authorities are observing him. Not only does it withhold the right for a user to take action to

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defend his reputation, it removes established safeguards such as court orders to protect his

privacy. A court order should always be required before an ISP discloses the personal

informationof its customers or takes any other action on the basis of a mere allegation from a

copyright holder.

2.3Owner and User Rights

Anti-circumvention Laws

The Canadian Modernization Act disallows any circumvention of technological

protection measures, including digital locks (Kerr 381). It also specifies that any technology

designed to circumvent digital locks is also illegal (381). The zero tolerance policy for

circumventing a digital lock presents several problems to owner and user rights. First, it takes

away the rights of the copyright holder in case they want to willingly break a lock of their own

work for legitimate reasons. Second, it may countermand a user’s rights to fairly use a legally

acquired work by overriding it with a digital lock (381).Anti-circumvention laws enforce the

contractual terms imposed bya content distributor, but they do not necessarily represent the

objectives of the copyright holder and the user (381). Originally, the Copyright Modernization

Act aimed to improve user rights in terms of using copyrighted works for non-commercial

purposes, such as education, parody, satire, and user-generated content. However, a major

criticism of the law has focused on anti-circumvention provisions because it is tied to criminal

behaviour instead of copyright infringement, thereby expanding copyright to include acts that

have nothing to do with copying (Kerr 296). These terms can prohibit activities which are

normalized for users, such as copying a CD into digital format to enjoy on a digital music player.

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In some cases, consumers may not even beallowed to re-sell or give away the music or videos

that they already own(Canadian Internet Policy and Public Interest Clinic12). In turn, consumers

will face feweroptions for using the copyrighted works that they have purchased legally.

Additionally, the anti-circumvention provisions prevent a copyright owner from removing the

digital locks themselves. Therefore, once the lock is on it will be difficult to lift it. This limits the

scope of freedom for the copyright holder. A lock should be opened if a user has a legal right to

access it, such as for parody or research (Kerr 296). Since the law has zero tolerance for

impeding digital locks, it removes the autonomy from a copyright holder and the user, which

conflicts with the nature of fair use in copyright law. The WIPO Standing Committee on

Copyright and Related Rights issued a report in 2010 describing that national laws in at least

“NineteenMember States indicated that their national laws, at least in some cases, provided

mechanisms to make sure that prohibition of circumvention of TPMs does not prevent

beneficiaries of copyright limitations and exceptions from exercising them” (WIPO 2010).

Therefore, most countries had laws surrounding the use of digital locks and TPMs, but they still

outlined provisions for digital lock exemption. Canada, however, has not provided such a safety

measure (Kerr 297). This provision is necessary for balance because digital lock absolution

removes power away from the user and the copyright holder. Using digital locks without

impunity fails to acknowledge there arereasonable uses which may impede the rights of a

copyright holder and the user.

In order for a copyright law to be considered balanced and fair, it must address owner and

user rights without giving undue power to one or the other. The Canadian Modernization Act

leaves this balance open to vulnerability by not addressing specific aspects of copyright holder

and user rights in regards to digital locks. The digital lock provision prevents a user from

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expanding on a work or using it for fair use, even if a user gains access to a work legally.

Additionally, the circumvention of digital locks removes options for the copyright holder if they

wish to remove the lock for personal or professional reasons. This pervasive measure challenges

fair use in the bill, since its intent is to share works in order to stimulate innovation and cultural

creation. It impedes the process, slows culture creation, and impedes citizens from using works

legally to flourish.

Normalized vs. Unreasonable use of Copyrighted Works

The Canadian Modernization Actattempts to incorporate some behaviours that Canadians

have considered normal for years. For example, some argued that digital backups were

technically copies of an original work, and therefore should pay the copyright holder royalties

for actions such as digital backups and caching (Black et. al 2012). Caching involves keeping a

local copy of information instead of fetching it from the original source, usually from a website

or RAM on a computer(Black et. al 2012). Caching and RAM is a temporary measure for

ensuring speed on websites and computer hardware – removing it would drasticallyslow the

ability toaccess information (Black et. al 2012). Therefore, the law declared its use

reasonablebecause it benefits efficiency in communications. However, the law still struggles

with definingwhat a digital reproduction is despite outlining rules that involve the creation of

making digital copies, such as format shifting and time shifting. The Canadian Modernization

Actpermitsformat shifting, because it has become a normalized activity for users. Format shifting

allows individuals to transfer legally acquired works from one format to another for private

purposes (Black et. al 2012). For example, an individual would be able to copy music on legally

obtained CDs to digital music players for private purposes, as long as the user bought the right to

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hold a copyright. A user can accomplish this through the purchase of a CD. However, in order to

differentiate format shifting from making a digital copy, the steps have become more elaborate.

An owner of the work can lend an original copy of a work to a friend, as long as the original user

destroys all of his copies. Similarly, the person who borrows the CD cannot make a copy. The

law makes sharing content so intricate that an average user may have difficulty following the

law. Conversely, if a user makes a copy for a friend under fair use (such as for educational

purposes), it is still considered illegal. The new parameters reduce the freedom to use legally

acquired content. The second consideration for the act includes time shifting, which involves

recording and storing broadcast television, radio programs or internet programming using any

recording device (Bolipata 2012). The actispermitted as long as it is “no longer than necessary in

order to listen to or watch the program at a more convenient time” (Copyright Modernization Act

19 s.29.3 2012).However, the copy made must be for the private purposes of the individual who

recorded it cannot give it away (Bolipata 2012). Commentators criticize the implications of this

provision because it would make a common action illegal – collecting your own personal library

of television shows and movies for later viewing. The user has paid for a cable or ISP connection

to access content, but they want to access it on demand. Even on services such as Netflix, this is

not possible due to copyright restrictions. Therefore, this restriction is not in step with common

copyright use. Since a balanced copyright law allows the user to be in control of as many choices

as possible while protecting creator rights, this restriction should be reconsidered. A private

collection would not reduce income from a copyright holder, so it is difficult to justify the reason

for this provision.

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3 Recommendations

Although the Copyright Modernization Act attempts to restore balance between user and

copyright holder, it proves problematic for two reasons. First, it does not comprehensively

address user needs. Second, it does not encourage reasonable access to copyrighted works. The

nature of copyright is to encourage innovation and knowledge through access to information,

which TPM provisions have made extremely difficult due to a lack of safeguards. Moving

forward, the Canadian Modernization Act must include that fair use can override digital locks,

format shifting and time shifting provisions. Additionally, the law must include exemptions to

anti-circumvention to protect fair use, user rights, and owner’s rights. Despite the need to uphold

WIPO and WTO demands, digital locks are suggestions– not requirements – for both treaties, so

there is no reasonable justification to prevent the circumvention of digital locks. Finally, TPMs

should not be used as a means to enforce copyright, because they do not have the complex ability

to judge fair use appropriately. They should be removed from the law unless the government

provides privacy protection against them. Users must be given the highest amount of freedom

possible to enjoy copyrighted works and protect their right to privacy.

Sufficient research has not been conducted to determine the motivation behind copyright

infringement. There may be a commercial solution for discouraging copyright infringement acts,

such as illegal downloading using P2P software. The industry that has suffered the greatest loss

of income, the music industry, arguably has not kept in step with user demands. The industry

could innovate to include a method for monetizing P2P software for legalized use (Kerr 271).

They could also provide more incentives for users to acquire digital copies legally, such as

reduced prices and exclusive content. They have already encouraged this type of marketing for

new vinyl and CD releases, but they have failed to do so for digital content. This failure shows

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that the commercialized industries could improve content distribution that would suit their own

interests and encourage cultural creation, but they refuse because they cling to older institutional

norms.

3.1 Conclusion

Copyright has been a fiercely debated issue in the last decade, increasingly due to the

ease and availability of sharing content such as music, movies, or literature. We must examine

how new provisions obstruct our cultural expectations for distributing digital media. The

Copyright Modernization Act takes a utilitarian justification for the development of copyright,

but fails to balance cause and effect between digital locks and fair use. A copyright’s purpose is

to enrich cultural heritage by protecting creator rights. This encourages creativity and the

productionof more cultural works, which is essential to the development process.A utilitarian

rationale asserts there is a positive correlation between promoting culture and the process of

development (Barron 2012). This creates an emancipated culture because it encourages

intellectual activity and public communication (Barron 2012). Therefore, we must explore the

provisions in this law because of the implications it poses to access to information, privacy, and

owner and user rights.