James Gannon's IP Blog

Technological protection measures (or “TPMs”) are technologies that protect digital media and control how consumers can use digital products that they purchase. For instance, when you buy e-books from Kobo’s online book store, a TPM controls how that e-book can be copied. The TPM allows you to make copies of the e-book between devices that you own, but it will prevent you from making a copy onto another person’s e-book reader. The government’s new copyright bill, Bill C-11, would establish legal protections for TPMs by making it illegal to hack a TPM or traffic TPM-hacking devices.

Professor Michael Geist of the University of Ottawa has been leading the opposition to legal protections for TPMs, or what he calls “digital locks”. On his widely-read blog, he re-publishes position papers from the various groups that share his opinions about TPMs. He, along with the groups he quotes, argue that legal protection for TPMs will override an exception in copyright law called “fair dealing”[1] and that this will end up harming the education community in Canada.

Professor Geist’s claims, and the claims of those who follow his views, are completely unfounded when it comes to TPMs and fair dealing. Even though TPMs are used quite often in the education community and writers, editors and publishers of educational materials rely on TPMs to protect their revenue models, it is simply not accurate to state that Bill C-11 will have any real impact on educators’ ability to make fair dealing copies.

Here are five reasons why TPMs, and the legal protections for TPMs in Bill C-11, will not interfere with fair dealing that you probably won’t read on Professor Geist’s blog.

1. The education community has always operated on a permission culture

The best way to avoid any problems with copyright law has always been to get the original author’s permission to use his or her work and this applies especially in the education community. Most academics are always happy to have their papers republished, circulated and incorporated into the works of others. It’s very rare that a professor would not want someone to make further use of their publications. However, it’s always been a sign a respect to obtain the original author’s permission to use their work, whether or not that use would otherwise be considered a “fair dealing”.

Copyright law only prohibits copying that is done without the permission of the author. The proposed TPM laws in Bill C-11 work the same way. In fact, in the actual language of Bill C-11, it specifically states that it’s illegal to hack a TPM “unless it is done with the authority of the copyright owner”.

Bill C-11 does nothing to affect this permission culture that exists within the education community. Even if an academic intends to make a “fair dealing” copy of another academic’s work (like reproducing a substantial portion of research results), it is still customary to obtain the original author’s permission. And if the copying the academic intends to do is restricted by a TPM, there’s no reason the author cannot grant permission to bypass the TPM as well.

2. Most works are available in multiple formats

These days, there’s no shortage of different formats on which digital products are being published. Entertainment media like movies are made available physically on DVD and Blu-Ray, or online in a variety of on-demand, streaming and digital-download formats. The same can be said for academic and educational material. Articles by university professors will often be published in an academic journal, both in print and on the journal webiste, and the same article may appear in other research resources, compilation discs, blogs and online aggregators.

Take Professor Geist’s weekly column for example. His column on Canadian Internet law that appears in the Toronto Star each week can be viewed on the newspaper’s website for free. However, the Star requires website readers to pay a small fee before they can access articles that are more than a couple of years old. Someone who wants to make a fair dealing excerpt of one of Professor Geist’s legal columns from 2007 on the Star website would have to pay $4 to access the article. However, Geist himself makes copies of all of his columns available for free on his blog. So instead of hacking the Toronto Star’s content protection system, readers of Professor Geist’s column can simply find the same articles available on his personal blog.

The same applies to all types of academic materials. Out of the many different formats and platforms that researchers and professors use to publish their materials, it’s highly unlikely that they will all be protected with TPMs that restrict fair dealing copies. In that rare instance where educational materials are available only in a single format, it’s highly likely the author will give permission to make the copy anyway.

3. Bill C-11 regulation making powers

One aspect of the TPM laws in Bill C-11 that you won’t read about on Professor Geist’s blog is their remarkable flexibility to allow them to adapt to new technologies and uses of digital media. The TPM laws in Bill C-11 make extensive use of government regulation-making powers, which is a way of letting government agencies make quick adjustments to existing laws without having to go through the long process of getting a Parliamentary vote.

Bill C-11 would allow the government to enact regulations that would:

• Prescribe a certain class of TPMs that would not be illegal to hack. If a particular TPM technology was having a drastic effect on preventing otherwise legal uses of educational material, the government could quickly step in and exempt those TPMs from the application of Bill C-11.
• Prescribe a new exception to allow TPMs to be hacked for a new purpose. If TPMs did turn out to stifle academic research and access to educational materials, the government could quickly enact an exception to allow removal of any TPM for those purposes.
• Require a copyright owner to allow access to a work protected by TPMs. As a last resort, Bill C-11 reserves the right for the government to order the removal of a particular TPM.

For all of the reasons set out above, it is simply false to say that the TPM laws in Bill C-11 will prevent academics from making fair dealing copies of educational materials. But in the event that they do, the government has numerous powers to quickly correct any problems that arise.

4. There are already existing exceptions

Let’s assume for argument’s sake that an academic wants to make a fair dealing copy of educational material that’s protected by a TPM that would prevent this copying. Let’s also assume that the academic was not able to get permission from the author of the materials to make the copy, that the materials aren’t available in any other format and that the government hasn’t enacted any regulation that would permit this copying.

Even in this very unlikely scenario, there are still eight other existing exceptions in Bill C-11 that allow hacking TPMs without the author’s permission. Some of these exceptions would apply in the academic context. For example, it would be legal to hack any TPM for the purpose of encryption research. As well, Bill C-11 permits hacking any TPM for the purpose of making materials accessible to persons with perceptual disabilities.

Even if none of these exceptions apply, the possibility of an academic, researcher or educational institution facing any damages is extremely remote. Bill C-11 specifically eliminates any statutory damages for acts of TPM hacking, so the only damages a copyright holder could recover are the actual monetary damages suffered by the TPM being hacked. This means that if the TPM is hacked for the purpose of making a fair dealing copy (and therefore the copyright holder suffers no actual monetary damages), there would likely be no penalty recoverable for making the copy. Bill C-11 even specifically exempts libraries, archives, museums and educational institutions from paying any damages if they had reasonable grounds to believe their actions did not violate the TPM laws.

5. Most TPMs don’t actually prevent copying and Bill C-11 doesn’t prevent hacking those that do

There’s one very important point about TPMs, Bill C-11 and fair dealing that you won’t hear from Professor Geist and those that have adopted his position: Bill C-11 doesn’t actually prohibit hacking the types of TPMs that would prevent fair dealing copies from being made.

Understanding this point requires a bit of a technical analysis, which is why it’s been saved for last, but it’s nonetheless absolutely true. Fair dealing is an exception to copyright law that allows users of materials to make limited copies and Bill C-11 does not prohibit hacking a TPM that would restrict someone from making a copy of those materials.

This might not sound believable given the outcry from those that follow Geist’s position, but it’s right there in the language of the Bill.

In Bill C-11, a “technological protection measure” is defined as a device that (a) controls access to a work (an “access-control TPM”); or (b) controls copying of a work (a “copy-control TPM”). A very key distinction is made in Bill C-11 in that it only prohibits hacking an access-control TPM. Nowhere in Bill C-11 is there a section that prevents someone from hacking a TPM that restricts copying of the underlying work. The section in Bill C-11 that outlaws trafficking TPM-hacking devices applies to both access-control and copy-control TPMs, but the section that prohibits TPM-hacking itself is very specifically limited to only access-control TPMs.

Let’s look again at the example of copying some of Professor Geist’s columns from the Toronto Star archives. Forgetting for a minute that the same columns are republished on his blog, suppose a researcher wants to make a fair dealing copy of part of Geist’s column from the Star archives. The Star requires those who wish to access its archives to pay $4 per article. A TPM prevents those who have not paid the fee from accessing the archived content (i.e. an access-control TPM). Bill C-11 would prohibit the researcher from hacking this “paywall” TPM in order to access Geist’s article for free, even if the researcher simply wants to make a fair dealing copy. The fair dealing defense in copyright law does not guarantee free access to content; it allows for limited copying of content to which the user already has access. In other words, fair dealing does not grant free access to the Star archive and Bill C-11 should not permit hacking these access controls even for the purpose of fair dealing.

Now, suppose the researcher pays the $4 and has access to an old column by Professor Geist. Suppose as well that the Star uses a copy-control TPM to prevent readers from copy/pasting the content they’ve paid to access (the Star doesn’t do this, but other online publications do). If the researcher really needs to copy that content for a fair dealing purpose, then nothing in Bill C-11 would prohibit hacking the TPM that disables this copying. This distinction between access-control TPMs and copy-control TPMs becomes more understandable when we realize that fair dealing grants copying “rights” to end users but not access “rights”. By allowing TPMs that prevent copying to be hacked, Bill C-11 has effectively ensured that there’s no concern with the TPM laws interfering with the fair dealing exception.

There may be some situations where academic content is protected through some sort of “hybrid” TPM that is both a copy-control and access-control, however it’s hard to even think of such an example in that context offhand. In fact, the vast majority of educational and academic materials that are protected by TPMs are protected using access-control TPMs like the Toronto Star paywall. The use of copy-control TPMs is extremely rare in the academic world so the fair dealing argument is mostly moot. In any event, these copy-control TPMs can still be removed under Bill C-11.

Conclusion

So would the TPM laws in Bill C-11 prevent students and academics from making fair dealing copies of published materials? The answer to this question is definitely “no” in cases where:

• the author has given permission to remove the TPM
• the same materials can be found in another format
• the government has enacted a regulation allowing the removal of the TPM for the particular purpose or removing that particular class of TPMs
• the type of copying falls into one of the existing exceptions in Bill C-11
• the TPM protecting the work is a copy-control TPM

In any other situation (which I challenge opponents of these provisions to name even one in the academic context), the “fine” for hacking the TPM would likely be zero since a fair dealing copy does not cause monetary damage to the original author. I hope the groups that have adopted Professor Geist’s positions take all this into account and reconsider their support for his views. TPMs (particularly access-control TPMs) have become widely used in the academic publishing world to protect revenues for academics and educational authors.