Big Copyright Win in Canada: Court Rules Fair Use Beats Digital Locks (michaelgeist.ca) 16
Michael Geist
Pig Hogger (Slashdot reader #10,379) reminds us that in Canadian law, "fair use" is called "fair dealing" — and that Canadian digital media users just enjoyed a huge win. Canadian user rights champion Michael Geist writes:
The Federal Court has issued 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.
Canada's 2012 "Copyright Modernization Act" protected anti-copying technology from circumvention, Geist writes — and Blacklock's Reports had then "argued that allowing anyone other than original subscriber to access articles constituted copyright infringement." The court found that the Blacklock's legal language associated with its licensing was confusing and that fair dealing applied here as well...
Blacklock's position on this issue was straightforward: it argued that its content was protected by a password, that passwords constituted a form of technological protection measure, and that fair dealing does not apply in the context of circumvention. In other words, it argued that the act of circumvention (in this case of a password) was itself infringing and it could not be saved by fair dealing. The Federal Court disagreed on all points...
For years, many have argued for a specific exception to clarify that circumvention was permitted for fair dealing purposes, essentially making the case that users should not lose their fair dealing rights the moment a rights holder places a digital lock on their work. The Federal Court has concluded that the fair dealing rights have remained there all along and that the Copyright Act's anti-circumvention rules must be interpreted in a manner consistent with those rights.
"The case could still be appealed, but for now the court has restored a critical aspect of the copyright balance after more than a decade of uncertainty and concern."
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.
Canada's 2012 "Copyright Modernization Act" protected anti-copying technology from circumvention, Geist writes — and Blacklock's Reports had then "argued that allowing anyone other than original subscriber to access articles constituted copyright infringement." The court found that the Blacklock's legal language associated with its licensing was confusing and that fair dealing applied here as well...
Blacklock's position on this issue was straightforward: it argued that its content was protected by a password, that passwords constituted a form of technological protection measure, and that fair dealing does not apply in the context of circumvention. In other words, it argued that the act of circumvention (in this case of a password) was itself infringing and it could not be saved by fair dealing. The Federal Court disagreed on all points...
For years, many have argued for a specific exception to clarify that circumvention was permitted for fair dealing purposes, essentially making the case that users should not lose their fair dealing rights the moment a rights holder places a digital lock on their work. The Federal Court has concluded that the fair dealing rights have remained there all along and that the Copyright Act's anti-circumvention rules must be interpreted in a manner consistent with those rights.
"The case could still be appealed, but for now the court has restored a critical aspect of the copyright balance after more than a decade of uncertainty and concern."
Help us out (Score:1)
What exactly does this ruling confirm is allowed (or what would have been forbidden if the ruling had gone the other way)? Not legal or vague terms like 'use a password for fair dealing', but actual specific lay-language actions.
Re:Help us out (Score:5, Informative)
Directly from the article:
> 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.
Basically "fair dealing" means "fair use".
Re: (Score:3)
Yep. I expect this would also cover breaking encryption or DRM in cases where you have a designated fair use, such as personal copying. For example ripping protected discs.
Re:Help us out (Score:5, Interesting)
Basically it's the opposite of how the DMCA operates. Instead of carving out legitimate reasons to circumvent digital locks as what the DMCA does, in Canada it's the opposite, where circumvention for the purposes for fair dealing is legal.
The implications of this can be big - think digital textbooks, which are all locked up. Suddenly if say, a professor wanted to copy a few pages of text to use in class, but the textbook publisher prohibits this, it is completely legal for the professor to use any tool to accomplish this task. This could mean legitimizing use of things like Z-library.
Or, what about DRM protected games? Things get very tricky here since it could change the way Steam does things - if you lose access to your Steam account (e.g., banned) you might have a case where your games are still playable. Suddenly the loss of your library cannot be used as a sword of damacles - you could be entitled to the games you purchased despite the ban.
Re: (Score:2)
Re: (Score:2)
As far as I know, that is not the case - at least in the US - about being able to claim fair use. There is actually an entire little industry of companies that gather bits of different copyrighted materials for professors and bind them into what they call 'course-packs' for teaching. An article here, a book chapter there, etc. Each copyright is run down to the owner, and the relevant rights obtained / bought for that use. Or it can't be included.
I know this because I worked for a company that created a
Re: (Score:2)
Also means that Canada will soon find itself upgraded to the US Trade Representative's Priority Watch List. After all the US was already "deeply concerned" with Canada's lack of draconian IP enforcement [ustr.gov].
Re: Help us out (Score:2)
Great news! (Score:5, Insightful)
Geist is a Canadian hero. He regularly upholds the interests of regular people in many important areas such as net neutrality, wholesale broadband, levies, copyright and more.
Thanks Micheal!
Re: (Score:2)
How?
working link and summery article (Score:4, Informative)
The Federal Court of Canada has ruled that the anti-circumvention provisions of the Copyright Act do not apply to restrain fair dealing; using a validly obtained password to access content.
The matter involves a number of lawsuits between an online news publisher and the Federal Government. The publisher prints articles on its paywalled news site, some of which are about government agencies. Employees of those agencies are alleged to have shared passwords to access the site to monitor media coverage and internally share articles to address misleading or erroneous information. The publisher alleges such practices infringe copyright and circumvent digital locks contrary to the Copyright Act.
The Attorney General of Canada (AGC) sought a summary judgment to dismiss parts of the claim regarding circumvention and to confirm that the use of articles obtained through a subscription constitutes fair dealing under the Copyright Act.
CIPPIC intervened, arguing that the case implicated the balance between the rights of copyright owners and the fair dealing rights of users under the Copyright Act. CIPPIC argued that fair dealing could stand as a defense to anti-circumvention provisions.
The Court agreed. The court held that Parks Canada's use of the password to access articles constituted fair dealing under section 29 of the Copyright Act; and
the password use in this case did not bypass, deactivate, or impair any technological measures since it was used as intended to access articles
https://www.cippic.ca/articles... [cippic.ca]