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While the prospect of a federal election this Fall threatens to derail the entire process, the government’s copyright reform consultations are picking up speed and starting to capture some attention. I’ve followed the consultations closely. I read the crowd-aggregated news stories, Op-Eds and blog posts on twitter (at the hashtag #copycon), observed the Calgary roundtable and even watched the webcast of the Montreal townhall.

As noted in previous posts on this topic, I’ve been personally interested in copyright and internet law (and certainly copyright enforcement) since I downloaded my first MP3 thirteen years ago.  Recently, I’ve been fortunate to have the issue intersect with my professional life as well. At the PSE Partners conference last week, Dr. Meera Nair had a very interesting response to a question I asked her about how digital locks – software that blocks users’ ability to copy files including Technonological Protection Measures, TPMs, and Digital Rights Management, DRM – reconcile with the fair dealing provision afforded by Canadian legislation and case law.  Dr. Nair explains on her blog “Fair Duty”

Simply put, once a work is locked, it’s game over. Fair dealing is meaningless if you cannot access the material. Many individuals are anxious that IF Canadian law were to prohibit the circumvention of TPMs, such a prohibition should only apply to circumvention for infringing purposes. Meaning, if you circumvent a TPM for a noninfringing use, such as fair dealing, you will not run afoul of the law. Yet, there is a question of why permit the use of TPMs at all? TPMs take away existing rights available to Canadians. To limit access to published work is to deny fair dealing. Said another way, TPMs violate a structure of law that has been in place since the creation of copyright itself (nearly300 years) and present in Canadian law since its inception in 1924.

In other words, the very idea of companies or industry consortiums using digital locks to prevent people from making copies of works they’ve legally purchased runs counter to the notion of limitation in copyright law – which limits both creators and consumers -  as well as the existing provisions afforded by fair dealing under Canadian law.

Sadly, in reading and listening to many of the remarks of industry stakeholders at the formal roundtables and the townhall, this unwarranted trampling of Canadian’ rights through the imposition of digital locks is being touted as the only way these industries can save themselves from the unwashed masses of file sharers. At least in the realm of music, this position is convieniently ignoring UK music industry economists’ admission that the music industry is growing.

In today’s Toronto Star, Michael Geist addresses the issue of creating longevity in any forthcoming adjustments to Canadian copyright law, and in doing so, establishes four principles to employ in the evaluation of proposed changes. Dr. Geist’s second point implicitly addresses the issue of digital locks by acknowledging the short comings of proprietary technological constraints.

First, copyright law should strive for balance between creator rights and users’ rights. If the law tilts too far in one direction, the other side is virtually guaranteed to put the issue of reform back on the table and the changes do not last.

Second, the law must be technologically neutral. Copyright has proven remarkably resilient over the decades in large measure because it states broad principles about the scope and limits of protection. If copyright veers too far toward specific technologies by mandating new protection for specific business models or technological innovations, those rules risk being overtaken as the technologies and marketplace evolve.

Third, the law should strive for simplification and clarity. Copyright may once have been a niche issue understood by a small number of experts, yet today it affects the daily lives of millions. If Canadians are to respect the law, they must first understand it. When Bill C-61 proposed a 12-part test to determine whether recording a television program was legal, it rendered the law far too complex for the average person.

Fourth, the law should embrace flexibility, which has allowed many copyright provisions to adapt to continually changing economic and technology environments. Flexibility requires a general-purpose law and ensures that it works for stakeholders across the spectrum, whether documentary filmmakers, musicians, teachers, researchers, businesses or consumers.

I’m hopeful that something reasonable will come out of these consultations but I also worry that the government is going to miss the mark and embrace the imposition of a copyright clampdown that either restricts established legal protections or turns regular Canadians into criminals.  You can do your part to make sure that doesn’t happen by making your voice heard.

Make your written submission right here: http://copyright.econsultation.ca/topics-sujets/show-montrer/18