Category: Information Policy

DRM, Canada, and the long arm of contract law

One of my projects at work this month has been to promote the use of e-books.  I’m of two minds on the use of electronic book formats – I think the end user will one day see an incredible benefit from them, but I also think that until e-book readers (both software and hardware) become more user-friendly, e-books will remain subordinate to print editions, especially in the humanities.

At any rate, I’ve been reading a lot of contractual fine print on account of this project.  I’m up to my ears in Terms of Services Statements, Copyright Statements, and Privacy Policies, and some of the clauses in the contracts make me cringe.  Let’s look at some parts of eBrary‘s Terms of Service as an example (there is nothing out of the ordinary with eBrary’s TOS, by the way; I’m selecting it only because it is the reader I’ve been using this week).  You can find a link to the TOS at the bottom of your eBrary e-Reader page.  These links are routed through your own institution’s proxy server, however, so I’m instead linking to the TOS as listed on the eBrary corporate site.  The link may be different, but the terms remain the same.

1. Rights, Restrictions, and Respecting Copyrights

(a) The text, images, and other materials available on this site (collectively, the “Materials”) are protected by United States copyright and other applicable laws. You may not engage in any acts inconsistent with the principles of copyright protection and fair use (see the United States Code, 17 USC Sections 106-110). For example, you may not copy, print, reproduce, distribute, transmit, modify, display, or otherwise use the Materials or copies of the Materials, except that, subject to the other terms of this Agreement:

Unless you live in the United States (and the United States is admittedly a very large market), you’ve got problems at the outset.  These terms bind the users at my institution – a Canadian undergraduate university – to copyright laws developed by another nation.  Leaving aside the fact that an interpretation of these laws will be at best imprecise and uninformed because most LIS professionals are not lawyers and most users don’t bother to read an e-book vendor’s TOS, we’ve got a jurisdictional case study that I’m sure no WIPO representative fathomed in 1967.

The eBrary case presents an interesting dilemma in Canada.   Many Canadian Knowledge Research Network consortium members use eBrary to gain access to Canadian primary materials and critical literature.  This means that the Canadian-resident students and staff I serve are accessing Canadian materials through their Canadian university (which is normally subject to Canadian statues), but are bound to a contract framed by foreign law.  How many Canadian LIS professionals are forced to operate merely on the good faith of the vendor in a situation such as this?  Although I have no reason to believe that an organization like eBrary would intentionally place an entire consortia into a situation that could end only in litigation (that would be a complete and utter relationship-destroying measure), this sort of dealing still puts the Canadian LIS professional in a very weak spot.  Although I may know a thing or two about Canadian copyright law, especially as it pertains to fair dealing and libraries, archives and museums, I certainly can’t speak much to US copyright law, and I don’t think the majority of LIS professionals in Canada could, either.

7. Disclaimer of Warranties

THIS WEB SITE IS OFFERED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AS A CONDITION OF USING THIS SITE, YOU ASSUME ALL RISK OF LOSS RESULTING FROM THE USE OF, OR RELIANCE ON, THIS SITE OR ANY MATERIALS IDENTIFIED, LOCATED, OR OBTAINED BY USING THIS SITE. EBRARY AND ITS SUPPLIERS AND LICENSORS MAKE NO WARRANTY REGARDING THE ACCESSIBILITY OF THE SITE OR THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE MATERIALS. EBRARY AND ITS LICENSORS AND SUPPLIERS SPECIFICALLY DISCLAIM ALL WARRANTIES INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ALL CONDITIONS OF QUALITY. NO USER SHOULD RELY ON OR ATTEMPT TO TRY ANY INFORMATION, ACT OR OTHER EVENT PORTRAYED ON THIS SITE. AS WITH ALL INFORMATION AVAILABLE THROUGH THIS SITE, LEGAL, FINANCIAL, MEDICAL, HEALTH, AND SAFETY RELATED INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR ADVICE FROM A QUALIFIED PROFESSIONAL. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THESE EXCLUSIONS MAY NOT APPLY TO YOU.

This clause should remind us that the texts we read and interact with on eBrary are not our time-worn, dog-eared Penguin’s Classics.  Despite the fact that academic libraries pay tens of thousands of dollars in annual licensing fees to accommodate access rights for their communities, the portal their users must employ to view the text – the web site – is offered “as is.”  If the web site ever crashes, eBrary will not be held responsible.  If the notes and annotations one saves in an account disappears (a slim possibility, I admit), eBrary will not be held responsible.  If one chooses to use an e-book as opposed to borrowing a similar text but the site crashes over the long weekend before a funding application is due, eBrary will not be held responsible.

But perhaps the best part of this disclaimer is the statement that, “NO USER SHOULD RELY ON . . . ANY INFORMATION . . . ON THIS SITE.”  Excuse my excessive use of all-caps for a moment, but I wanted to mimic eBrary’s demand that we acknowledge and understand its blanket concession that its main product (information) and its main service (information dissemination) can ever be relied upon.  Ever.  In an attempt to safeguard itself from ridiculous lawsuits, eBrary has warned us that we can’t trust any of its wares to ever be reliable.  If only i could have put a disclaimer like that on every essay I ever wrote.

Sigh.

[eBrary Terms of Service]

Copyright and the abuse of user rights – a Canadian perspective

I love how I can find new voices and opinions on the Internet. Lately, I’ve been reading Shannon Turlington’s blog; Shannon has lately offered a good mix of information policy and criticism, and her work is enjoying to read. She’s also one of the intrepid bloggers who posted a few soundbites about the Associated Press’s decision to impose for-profit licenses on every word it has ever published, regardless of one’s aims when using the work. AP is working to implement a DRM system that “will register key identifying information about each piece of content that AP distributes as well as the terms of use of that content, and employ a built-in beacon to notify AP about how the content is used” (AP, 2009).

As many others have pointed out, AP generally has a right to protect its copyright over its materials, but it should not be at the expense of either user rights or of the public domain. The example that’s been used to show the ridiculousness of the situation – AP’s attempt to charge a user a fee to “quote” from one of its articles a letter by Thomas Jefferson that rails against copyright – once again reminds us that when corporate rights-holders try to “negotiate” licenses with digital media, the notions of fair use and the public domain are often trampled underfoot.

At any rate, I’ve been thinking about what might happen if it was the Canadian Press (CP) who was trying to implement such a text-based DRM system. Canadian copyright law, we’re well aware, is terribly outdated and stake-holders are right now establishing beachheads for the next battle to create new legislation, but libraries, archives, and museums, as well as academic centers do have the tools to help protect our interests and user rights. Under the six-part fair dealings test that the Supreme Court developed in CCH v. Law Society of Upper Canada (2004), it’s likely fair to say that users can politely refuse to pay CP if ever it demanded similar license fees. Consider: under our Copyright Act (1985), fair dealings exceptions to copyright are granted for:

  • the purpose of research or private study (Sec. 29),
  • the purpose of criticism or review, if
    • the source is mentioned, and:
      • the author is listed, in the case of a work,
      • the performer, in the case of a performance,
      • the maker, in the case of a sound recording,
      • the broadcaster, in the case of communication signal (Sec. 29.1)
  • the purpose of news reporting, if:
    • the source is mentioned, and:
      • the author is listed, in the case of a work,
      • the performer, in the case of a performance,
      • the maker, in the case of a sound recording,
      • the broadcaster, in the case of communication signal (Sec. 29.2)

Of course, there are many limits to these exceptions (see sections 29.3ff), but the Act generally states that a Canadian work, copywritten in Canada, may be copied for the purposes of reportage, education, criticism, or analysis. It is generally “fair” for us to quote Rex Murphy at length so long as our intentions and output satisfy the exceptions listed above.

But what of that word, “fair”? Surely these terms – fair dealing in Commonwealth countries, and fair use in others – were developed because of the malleable nature of the adjective in question. “Fair” is open to interpretation, and therefore so are the user rights granted to us through the fair dealing exceptions. However, in the important 2004 CCH case, the Supreme Court said in no uncertain terms that “[t]he fair dealing exception, like other exceptions in the Copyright Act, is a user’s right” (para. 48). Understanding that the “fairness” of an action of largely a matter of degree, the court developed a six-point framework to help determine if an action falls within or violates the Copyright Act’s fair dealing exceptions. Since the CCH ruling, stakeholders, jurisdictions and courts must now consider:

  1. the purpose of the dealing -
    • if “it is for one of the allowable purposes under the Copyright Act” (para. 54),
  2. the character of the dealing -
    • courts “must examine how the works were dealt with” (para. 55), i.e. if multiple or single copies were made,
  3. the amount of the dealing –
    • “the quantity of the work taken will not be determinative of fairness, but it can help in the determination” vis-a-vis the exception being used (para. 56). i.e. it may be admissible to copy more of an item for research purposes than it would be copy for the purposes of criticism,
  4. alternatives to the dealing -
    • if there exists “a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court” (para. 57),
  5. the nature of the work -
    • a document that is confidential “may tip the scales towards finding that the dealing was unfair”, but the dealing of an unpublished document that is non-confidential may be deemed “more fair in that its reproduction with acknowledgment could lead to a wider public dissemination of the work — one of the goals of copyright law ” (para. 58),
  6. the effect of the dealing on the work -
    • if “the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair” (para. 59).

Researchers, academics, critics, reporters, and LAMs can generally quote at least portions of copywritten text – including CP’s works – so long as the work is properly attributed, if multiple copies are not made, and if there is no financial gain (or loss) by way of the action.

For the moment in Canada, advocates of user rights are standing on fairly solid ground, but it is a piece of land with major fault lines lying underneath it. The copyright “consultations” don’t bode well for us, though, and certainly if we don’t speak out minds on the issue. Whether we call ourselves “librarians” or “information professionals” – I’ll step back from my previous call to arms if it means rallying more troops to this cause – we owe it to ourselves to ensure that ill-conceived licenses such as AP’s won’t find a home within any provisions of a new Canadian copyright act. If you haven’t spoken up at a consultation or written a letter to the committee or to the Ministers of Industry and Culture, then please do so. This is as good an opportunity as any that we can actually affect positive change in Canadian information policy.