Five More Questions About Digital Copyright Law

In my first post on Slaw last summer, I highlighted 5 questions that face digital copyright law. There are of course many unanswered questions in this remarkably dynamic area of the law. Below I discuss 5 more issues that are elaborated upon in my Digital Copyright Law book:

1. What is a copy in the digital age?

The copy concept in copyright law was simple before the internet. An author received compensation for copies purchased by consumers. Digital technologies, which are copy dependent for the production and transmission of content has created new kinds of copies. These are “technical copies” – like server or RAM copies – that no one ever sees, hears or in any way consumes. Surprisingly, copyright legislation does not, and Canadian courts do not, squarely address whether these kinds of copies are a kind for which authors should be compensated. As a result, the jurisprudence and some its doctrines, such as technological neutrality, are confused. Sometimes these copies are compensable to authors and sometimes they are not. It is time to bring coherence to this issue which, in my book, I argue can be achieved through a purposive analysis of the right to copy.

2. How robust will fair dealing be in the digital sphere?

Canadian case law has evolved to the point where we can now say that there are meaningful parameters for fair dealing both generally and in the digital sphere. In the digital context, there are three guides to ensure the dealing is fair. First, where feasible and warranted (relative to the purpose), copies should be destroyed or reasonable safeguards put in place to limit potential downstream infringement. Second, alternatives to a digital dealing will not be considered unfair where no reasonable analog exists. Third, widespread dissemination via the internet will not be viewed as unfair. The last two guides in particular embrace the use of the internet for legitimate fair dealing purposes and uses. Canadian law on fair dealing also appears very favourable to mass digitization projects such as Google Books, and data mining applications, such as the HathiTrust. So far, it looks like courts will be very generous in their interpretation of fair dealing in the digital age.

3. Can I re-sell my digital purchases?

Prior to digitalization, a purchaser of a book or CD could pretty much do whatever they wanted with their purchased product, including re-selling it. Purchasing a digital copy (an e-book or a song via iTunes) may feel and look a lot like purchasing a book or album in the store but does the purchaser have the same rights? In many cases, the online purchase of these products is not a sale but a license to use the content, meaning that there is no right of re-sale (go ahead, check your terms of service on Kindle or iTunes). There is no law on this point in Canada but jurisdiction’s elsewhere have struggled with this issue. Some argue that a purchaser’s rights should be the same regardless of the medium of purchase. Others are concerned that ease of copying (i.e. keeping one copy and “re-selling” another copy) will mean that forced “sales” of digital goods will contribute to the piracy problem.

4. When will Canadian jurisdiction and law apply to the unauthorized streaming of content to Canadian viewers?

First the good news – so far, it is not illegal to view accessed content which has not been authorized by the copyright holder. The entity broadcasting or streaming the content could be liable but it remains unclear on what basis a Canadian court might take jurisdiction and apply Canadian law to offshore broadcasts. Older law in this area refers to a “real and substantial connection” between the cause of action and Canadian territory or jurisdiction. It probably makes sense, at least in streaming cases, to adopt the UK approach to the issue, which is to determine whether content is targeted to the Canadian viewers. Legal think tanks have also proposed rules for “ubiquitous” infringement”, i.e. where a single activity gives rise to multiple claims of infringement across several jurisdictions. The idea behind these proposals is to identify the jurisdiction most affected by the infringement and to settle these claims on a global basis.

5. Do the digital lock amendments create a new access right for copyright holders?

The new digital locks provisions prevent a person from accessing a work onto which a lock has been placed. A literal interpretation of a similar provision in the US has led to liability where a person has accessed an underlying computer code for a non-infringement purpose, e.g. to repair a product or create software compatibility in aftermarket goods. The mere accessing of code protected by the lock, in other words, was enough to violate the Act! More purposive interpretations of the provision have made a nexus requirement between access and an act of copyright infringement, e.g. accessing the work to make an illegal copy. It remains to be seen how Canadian courts will interpret the access control provision though the language of our Act is less explicit about a nexus requirement than in the US. This is a surprisingly development given the negative experience in the US connected with creating an access control right.