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Locked Up: The Paradox of Digital Locks and Lawful Access for Private Purposes under the Fair Dealing Exceptions of the Copyright Modernization Act
The growing digital landscape demands a balance between modern anti-piracy protections for content creators and lawful access to copyrighted material by the public. This comes as a result of the shift from print and broadcast media to digital streaming, and the impact of the web 2.0 phenomenon in creating producers out of users and expanding the definition of authorship in the digital age. In response, the Copyright Modernization Act of 2012 seeks to enforce Technological Protection Measures designed to prevent copyright infringement by means of “digital locks.” According to the Act, digital locks, often encountered by users in the form of access controls to content viewed online or downloaded, cover a broad range of technological protection measures, such that these can be any type of technology, device, or component that can control access to copyrighted content (Copyright Modernization Act, 2012, p. 93).
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At a glance, digital locks appear to merely protect the interests of copyright holders and stimulate the production of original works. Questions of fair dealing and public interest arise when the same content is treated under the provision on Reproduction for Private Purposes, as this legal safeguard allows users to utilize legally acquired content across multiple devices in a non-infringing manner and for non-commercial purposes (Copyright Modernization Act, 2012, p. 45). From these definitions alone, it is clear that the two provisions are compatible – copyrighted content must be protected and only lawfully accessed by means determined by the copyright holder – and which are already at work when considered in view of device ecosystems, wherein specific content can only be accessed through applications, but information is synced across multiple devices on which the subscriber account is logged on.
The use of digital locks to uphold the rights of copyright holders, complemented by the modern treatment of fair dealing exceptions that allow lawful access to legally acquired content across multiple devices are compatible provisions, in that these negotiate public consumption to a level that fairly compensates authorship and creativity. Authors are able to protect their work and its commercial value against the devastating economic outcome of piracy (Owens, 2019), and stimulate creativity, which copyright statues have always sought to protect. The Copyright Modernization Act also recognizes the shift in the role of users to “prod-users” in the web 2.0 era, as legal safeguards are enacted to protect their interactions with copyrighted material, while promoting authorship. The updated fair dealing exceptions recognize the value of user-generated content, in that prod-users can utilize lawfully accessed copyrighted content for research, private study, education, parody, satire, criticism, review, news reporting (Meese, 2015, p. 757) and what is commonly observed as the “YouTube exception” (Meese, 2015, p. 761), wherein users can create content that uses or is based off copyrighted works, but without supplanting these and causing adverse effects on their commercial value. This acknowledgment of non-commercial user creativity in the form of mash-ups and remixes, among others, illustrates how users can borrow from and ultimately transform copyrighted material without infringement (Meese, 2015, p. 761-762). Such interaction with copyrighted content, however, assumes that users know what constitutes infringing acts (Kyer, 2012, p. 450), and that there is a clear delineation between users and creators, which is clearly not the case when content produced within the web 2.0 sphere is in question (Meese, 2015, 756). What remains clear is that imposing technological protection measures is within the purview of copyright holders to protect their original work, and the wording of the Act makes it explicit that these must not be circumvented without proper consent or legal basis (Kyer, 2012, p. 450).
While the debate on authorship and the basis of fair dealing can be muddled in the context of user-generated content, cases wherein authorship is definite make it clear that circumventing digital locks rightfully warrants legal consequences. A federal court found King and Go Cyber Shopping guilty of copyright infringement due to advertising and selling devices for circumventing the technological protection measures in Nintendo games, allowing counterfeit or unauthorized copies of games to be played by users (Nintendo of America v King and Go Cyber Shopping (2005) LTD., 2017). These measures come in the form of the physical configuration of the game, boot up security checks, and encryption and scrambling protocols (Nintendo of America v King and Go Cyber Shopping (2005) LTD., 2017). Users who benefited from these devices are also liable, as they are able to unlawfully reproduce original games, which does not fit the standards of reproduction for private use, since the copies of the games were obtained illegally to begin with.
The general compatibility of digital locks and lawful reproduction for private purposes, however, is not without problems. For one, critics cite the propensity of digital locks to be manipulated for protecting private corporate interests, making content largely inaccessible to the public, even when provided for by the fair dealing exceptions (Stastna, 2011). This is because digital locks trump reproduction for private purposes, leaving copyrighted works susceptible to copyright trolls who can impose exorbitant fees or increasingly restrictive controls on materials they have exclusive rights to. For instance, it is becoming increasingly common for students to encounter copyrighted material that are protected by digital locks. Access to these are determined by publishers, and while students are granted institutional access, digital locks in the form copy and download controls, password protections, prohibition of format migration, and inability to play media on other devices are all in place (Colebatch, et al., 2013, p. 12). In the same breadth is Blacklock Reporter v. Canadian Vintners Association which was ruled in favour of the plaintiffs by simple virtue that the paywall served as a technological protection measure (Fewer, 2015). As the ruling stands, the simple act of receiving an email containing the article published on the subscription-based platform, despite originating from the account of a subscriber, renders the fair dealing defence invalid, since the digital lock once again trumps legal exceptions. In its review of the case, the University of Ottawa Centre on Law, Technology, and Culture points out that Blacklock’s paywall does not serve the purpose of copyright, which is to grant the owner exclusive rights to the commercial value of the content, since it was accessed by Canadian Vintners Association through a paid subscriber (Fewer, 2015). The court, however, confirms what is already observed in the subscription-based business models of streaming giants like Netflix and Spotify – paywall access is itself a digital lock, in the same manner that devices such as smartphones, tablets, and computers require verification of unique login credentials – and by extension, personal information – to access the Apple iOS, Google Android or Microsoft Windows ecosystem, in order to unlock specialized features and applications, and sync content viewed and stored across multiple devices. In its current form, the Act embodies the very paradox of copyright, in that it protects and incentivizes original authorship, while promoting public benefit through fair dealing. While it appears that digital locks were put in place as an anti-piracy measure, their function can become overly restrictive to the point that it tips the copyright balance by trumping reproduction allowances covered under the fair dealing exceptions, and should licenses be transferred by virtue of ancillary rights, even exert undue power over material already in the public domain (Craig, 2010, p. 507-511).
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The real problem, however, lies with licensing mechanisms that permit a liberal approach to applying digital locks, which are often inconsistent across platforms, publishers, and titles, such that download and copy limits for the same material may vary depending on how it is accessed (Colebatch, 2013, p. 15). Licensing differences arise from exclusive rights granted by authors to publishers, empowering them to place restrictive digital locks as they deem fit. Rather than completely dial back the purpose of digital locks, it is important to distinguish non-infringing purposes and make content more accessible by policing what can be licensed to what degree. In doing so, authors retain the right to exploit a fair commercial value for their work, while negotiating varied levels of access covered under fair dealing, rather than being outright punitive against parties that are not wilfully committing copyright infringement, in contrast with users who knowingly purchase devices or services specifically designed to circumvent digital locks.
Looking toward the future of copyright in Canada, Geist discusses important proposals made in the Canadian Copyright Review Report. Among the policy recommendations outlined in the report are expansions of both fair dealing and anti-circumvention provisions to permit lawful use of copyrighted material (Geist, 2019). This positive step maintains the importance of digital locks in protecting copyrighted material, but dials back their overly restrictive nature to avoid trumping fair dealing exceptions. This results in a lawful use of copyrighted materials that duly recognizes both the value of authorship and public interest. Should these recommendations take effect, the hierarchy that separates digital locks, reproduction for private purposes, and fair dealing exceptions can be eliminated to promote a more balanced treatment of copyrighted material – one that rewards and incentivizes creativity, but ultimately serves public interest rather than corporate greed.
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