The Protection of Rights Management Information: Modernization or Cup Half Full?
Many papers in this collection discuss the history and development of Bill C-32, An Act to Amend the Copyright Act, introduced into the Canadian Parliament on 2 June 2010, so that analysis will not be duplicated here. Among the failures of copyright reform has been the lack of addressing the required “balancing” of proprietary rights on the one hand, with user rights and the public domain on the other. Rights Management Information (RMI) can aid in this balancing. The RMI of a work is simply data that provide iden- tification of rights related to that work, either directly or indirectly. Al- though the Bill aims to address the perceived lack of compliance with the World Intellectual Property Organization (WIPO) Treaties, the drafters may not have seen WIPO’s own Scoping Study, which recommended:
Legal means should be found to prevent the recapture of exclusivity in works that have fallen into the public domain, whether through another intellectual property right (trademark or right in databases), property rights, other legal entitlements or technical protection, if such exclu- sivity is similar in scope or effect to that of copyright or is detrimental to non-rivalrous or concurrent uses of the public domain work.
The 1996 WIPO Treaties should be amended to prohibit a technical impediment to reproduce, publicly communicate or making available a work that has fallen into the public domain. There is no legal basis for the enforcement of technical protection measures applied to the public domain, as public domain status should guarantee the right to make re-use, modification, reproduction and communication. It could also be clarified that only technological measures protecting copyrighted works that form a substantial part of the digital content to which they apply will be protected against circumvention. Technological measures mainly protecting public domain works, with an ancillary and minimal presence of copyrighted works, should not enjoy legal protection.