Assessing Economic Impacts of Copyright Reform on Selected users and Consumers

Appendix 4

RMI: The position of libraries, archives and educational institutions

The librarians, archivists and educational institutions (LAMs) we have interviewed share the view that all types of RMI do not deserve equal protection. They consider that the strongest protection should be given to information that identifies the work and the right holders. They claim that if tracking information is to enjoy any protection, it should be protected less than other types of information. They insist that particular attention should be given to the protection of privacy. The majority opinion is that protection granted to information about conditions of use should be less than information that identifies the work and the right holders.

Even so, LAMs are uneasy about differences in the treatment of various information types. They doubt whether in the absence of a clear delineation between codes that serve different purposes, it is possible to separate information types in a practical way. They also point out that it may not be possible to manipulate one type of information while leaving other types undisturbed. As well, they are concerned about the implications of blurring between measures that protect content and measures that identify content. Furthermore, they point to the difficulties likely to appear when RMI is manipulated – deliberately or accidentally-while engaging in a legal act of circumvention.

Some users emphasize that it is important that the law emphasize that the mere exis tence of legal measures against tampering does imply a presumption that the RMI is accurate, relevant or, applicable in Canada.

A belief shared among libraries and archives is that erroneous information is more likely when it deals with conditions of use. This is why some are opposed to giving any legal protection given to such RMI. However, they also recognize that excluding such information from the ambit of legal protection may violate Canada's treaty obligations. For that reason they advocate an approach under which exceptions to legal protection are granted under a public interest clause. They argue that the specific situations where tampering is in the public interest should be spelled out in regulations, not in the law. They hold the view that this approach would make it possible to bypass the difficulty of distinguishing between types of information in the law. They believe that this has the advantage of providing to anti-tampering rules the flexibility required to respond to technological change.

LAMs also take the view that measures against circumvention and tampering should distinguish between actions undertaken for business purposes and acts that do not have a commercial objective. They plead for a linkage between the severity of the remedies adopted in instances of tampering and the severity of the damages the have resulted from that tampering. They are ambivalent, however, about the remedies that should be applied in cases of potential economic damage.

Some LAMs are disturbed by the fact that the WIPO treaties do not distinguish between RMI embedded by right holders and RMI attached by other parties. They claim that organizations such as collecting societies sometimes embed RMI that interferes with the management of collections. They also argue that libraries should have the right to remove information attached by other libraries or similar institutions. They recommend that only the RMI embedded by owners of rights and clearly identified as such, should benefit from legal protection.⁸¹

Libraries often engage in negotiations with right holders to broaden the scope of authorized uses permitted by standard licensing agreements. In order to obtain authorizations for extra uses they may negotiate directly with right holders, with their representatives, or seek permissions via provincial institutions such as the Advance Media Acquisition Centre in British Columbia. Such negotiations may deal with the public performance of a video prohibited under the standard license or with the right to make copies from a master. Libraries want the renegotiated terms to be embedded in a form that is visible to those who make use of the material. ⁸² They are concerned that the legal provisions against tampering may obstruct attempts to modify the terms of use as initially embedded by right owners or their agents.

Libraries and archives recognize that they are not always equipped to remove RMI, change it or, add information. This is true in particular when RMI is protected by technical means. Libraries are worried about the legal consequences of contracting such operations to specialized firms.

A concern shared among all respondents is that the widespread use of anti-circumvention means and/or RMI will deny them access to works in situations where they benefit from a fair dealing provision. Some respondents insist that regardless of the scope of the exceptions to provisions against circumvention of technical means, the law should not impose penalties on persons who remove RMI while engaging in a legitimate act of circumvention and who, having gained access to the content, reinstate the RMI or make a reasonable attempt to do so.

In regard to fair dealing, one archivist points out that it is impossible to ignore the fact that in order to determine whether some material deserves to be archived it is necessary to look it. If access is protected by technical means, archivists may not know whether the material is sufficiently important to be part of the archive.

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⁸¹ One librarian is concerned by the fact that the treaties refer not only to RMI embedded in a work, but also to information that is somehow attached, appended or appearing in connection with the use of a work. He wonders to what extent protection of RMI would extend to hyperlinks.

⁸² In the physical world, agents of right holders often undertake repackaging that reveal the revised licensing conditions to users. There is some concern that this will not happen in the digital work.