5 Questions About Digital Copyright Law

• Author: Cameron Hutchison
• Date: July 14, 2016

Much has happened with copyright law over the past few years. New amendments to modernize the Copyright Act for the internet age were added in 2012. As well there have been several court cases interpreting the impact of digital technologies on copyright doctrine. It is now possible to speak of “digital copyright” as an area of law. In the newly released book Digital Copyright Law published by Irwin Law, I track and analyze these developments. Below I discuss 5 prominent issues which are raised by these changes and that are elaborated upon in the book:

1. What is a digital lock?

By far the most controversial amendment to copyright law, both in Canada and abroad, has been the inclusion of digital lock (“anti-circumvention”) measures. These provisions make it actionable to disable a lock put in place to prevent access to a copyrighted work. A common refrain of complaint is that such locks interfere with fair dealing and other user rights under the Act. But, for the provisions to apply, these locks must be “effective”. Much may be implied into this word. Locks that are easy to circumvent, for example, are likely not included. Nor, I argue should it be the case that measures that operate like digital locks, but which serve other legitimate purposes (think VPNs and the protection of privacy), be included.

2. How broadly will the bittorent infringement enabler provision be applied?

I conclude that the new amendments appear to create a complete regime for the treatment of internet intermediaries (at least for now). There are a couple of notable developments here. First, those who provide digital memory (or “hosts”) are not liable for infringing acts of their clients unless they are made aware of a court decision that says so. Even more intriguing is the new infringement enabler provision, which seems directed at P2P bittorent sites that allow copyrighted music and video content to be shared. But the language of the provision is broad such that it might apply to lesser copyright-infringing sites like Pinterest.

3. Will the “Youtube exception” provide adequate protection for non-commercial creators of content?

Many commentators, both domestically...