There's a lot of panicked talk in the free-culture world about Canada's new Bill C-11 and its legal protection for technological protection measures (TPMs) and digital rights management (DRM). Somehow, the most vocal opponents of creator copyright have convinced teacher, library, student and even civil liberty advocacy groups that "digital locks" are about to imprison our culture, censor us, and take away our ability to access and use creative material.
Canada's free-culture commando, law-professor Michael Geist, has been loading his blog recently with carefully culled and meticulously edited statements from various groups worried about the TPM protections under C-11. That these complaints against TPMs are almost word-for-word quotations from the past writings of Michael Geist himself is no coincidence. Geist's sensationalist claims about existing copyright mechanisms, his coining of the term "digital locks," and his populist (and highly political) campaigning on behalf of consumers are all very quotable. Accurate? Not so much. But Geist isn't the first fellow to use highly quotable inaccuracies to muddy the waters around artists' rights.*
Viewed from the perspective of a professional artist, this collection of lockdown worries is a very strange response to Bill C-11, since the legislation actually greatly expands the freedom users have with works they've legally accessed. The bill contains a host of new provisions that broadens existing fair dealing. In fact, users are feeling so free right now that a bunch of universities and colleges in the country (some of the biggest "users" there are) have decided they don't have to license publicly available material through copyright collectives anymore.
Consider the quaint little lock on a child's diary? Like the tiny padlocks on suitcases or the hook-and-eye locks on gates, diary locks are ridiculously bad at providing security in the face of a determined trespasser.
Now consider TPMs and DRM. Copyright holders sometimes use these to manage access, and control copy permissions for creative works in the digital environment. They are technological solutions to technological problems imposed on creators wishing to work professionally online. They can be as simple as the password you use to enter into your e-mail provider, or as complicated as the code that allows you to view publicly available text on the Internet but not use your computer's copy and paste function on that text. They also - according to all technical experts - are completely inept at stopping the determined hacker from breaking the code and either accessing the material or copying it (or both).
Vocal opponents of these protection measures are fond of calling them "digital locks" (thanks, Professor Geist), but as working locks they're about as daunting as a piece of tape. We are told again and again there isn't a digital lock that can't be broken. Ironically it's very often the same folks complaining about our use of TPMs who tell us they don't work.
So, why do we bother with TPMs?
Well, why do we bother with diary, luggage or gate locks? None of them work very well. All of them can be broken with little to no effort. As serious efforts at security, TPMs are... well... lame. But ask any kid whose little brother has broken into her diary why that useless little lock is there, and you begin to understand why we use these things. They're not really locks at all - they're declarations of private property.
Artists and our industry partners need to be able to declare when access is permitted, and when it is restricted. Furthermore, we need to be able to declare when copying is permitted and when it's restricted. These actions are key to the exercise of an essential human right, one recognized by the United Nations and detailed in its Universal Declaration of Human Rights.
We declare our right to private intellectual property in many ways - most often with a simple © or a Creative Commons alternative. And we also recognize that a copyright declaration requires the force of law behind it to have any hope of setting a behavioural standard. Even Creative Commons licences are legal documents.
The same goes for TPMs and all digital rights management systems (DRM). Without the force of law protecting an artist's choices about her own work, there are simply no fair, effective choices. We'd all like to think our brothers won't read our diaries (and most of the time we're right), but that's not really the world we live in, is it? Especially not on the Internet.
What are we worried about?
The main worry, expressed over and over again by those quoting Geist is that new and established user provisions within the Copyright Act (e.g. fair dealing) would be "trumped" by TPM protection.
I use fair dealing all the time - quoting and taking extensive notes from others' work as I create my own work. Would a TPM stop me from doing that now that C-11 is here? I can't see how.
Let's say I download a new book to my Kobo e-reader. Will Kobo's proprietary DRM and TPMs stop me from exercising my fair dealing right to quote from that work or to copy portions for my own private use? Not at all, because I own one of these:
Now, I'm not (just) trying to be clever here. I recognize there are some forms of creative expression more dependent on digital technology for the creation part (digital film-making, for instance), but I don't recall the fair dealing provision ever stipulating that copyright owners must provide perfect copies in the exact format requested for those users wishing to exercise fair dealing. Fair dealing is not free delivery -- there is some work involved. The idea that, as a user, I must be able to copy and paste from the Kobo electronic file rather than do the work of making my own notes is a bit, well, entitled, isn't it?
I just want to assure Canada's students, teachers, librarians and civil libertarians that I - as both user and creator - intend to continue exercising fair dealing no matter how TPMed or DRMed is the content I legally access. I'm not worried, and I really think everyone else should re-examine their own worries.
Folks worried about legal-protection for TPMs can start their healthy re-examination of this issue by breaking the Michael Geist habit. The crusading professor is not the only legal mind at work on copyright in Canada, and neither is he even close to the authoritative word on this subject.
IP Osgoode is the blog site for Osgoode Hall's Intellectual Property Law and Technology Program. With the release of C-11, IP Osgoode republished this examination of the previous copyright bill's identical TPM protections:
Acting as the Fulcrum between Owners’ and Users’ Rights
Similarly, the Entertainment and Media Law Signal had this interesting analysis of the so called "digital lock" protections:
A Practical Solution on Digital Locks?
Finally, two of the keenest minds on copyright in Canada question the very idea that C-11 contains blanket protection for TPMs and DRM. Barry Sookman and James Gannon provide detailed analysis of the new copyright bill and the TPM protections it includes.
James Gannon - TPMs: A comprehensive guide for Canadian copyright law
Barry Sookman - Some observations on Bill C-11
Sookman (who is himself often quoted by Geist) makes no bones about his opinion of the free-culture academic in his analysis:
Opponents of legal protection for TPMs — such as Michael Geist — have made inaccurate statements about the legal protection for TPMs. Michael Geist’s relentless misinformation campaign against them makes it difficult and confusing for many Canadians to form informed views about the Bill’s TPM provisions.
* Terry Hart over at the Copyhype blog has an excellent posting showing how many of the anti-copyright arguments of today are just copies of the attacks against artists by past new-technologists trying to expropriate property.
Lock image by Carlos Luz on Flickr, licensed with a Creative Commons Attribution 2.0 Generic license.