How Recent Copyright Legislation (C-11) and TPMs Prevent Digital Preservation

The TPM Environment and Copyright Change from C-11

Recent copyright legislation prevents archives from legitimately fulfilling key requirements for the long term preservation and provision of access to digital fonds. Bill C-11 (An Act to amend the Copyright Act)[1] changed many elements of copyright law but the area posing the greatest problems to archival practices is the portion that prohibits circumventing technological protection measures (TPMs).

The problems surface in the confluence of TPM usage with the present copyright framework’s legal application to archival processes. TPMs in and of themselves are not necessarily detrimental to archival processes. Some forms of TPM may be useful toward ensuring authenticity and identifying provenance. However, when considering strategies for long term digital preservation as applied in trusted digital repositories (TDRs) or when considering appraisal criteria for the acquisition of digital fonds, the law turns TPMs into barriers against preservation.

Let’s look at the TPM environment with the changes in copyright law brought by Bill C-11. I’ll assess the threat to long term digital preservation with TDRs. Finally, I want to identify some of the effects on appraisal.

The problem is that portions of Bill C-11, introduced by the current Conservative government, prevent archivists from legally accomplishing their objectives.

This is the first part of a three-part series of posts.

The TPM Environment and Copyright Change from C-11

A TPM is any of a group of means used to discourage people from accessing or copying content stored in a digital medium; in fact sometimes TPMs are called digital locks. A TPM may discourage access through tracking and the threat of legal repercussions. Alternatively it may restrict access to only those people privileged with the appropriate means. What is appropriate is typically determined though an agreement with a rights-holder (such rights are bestowed on the basis of copyright law).

A TPM, as defined in Canadian copyright law (C-11), means

…any effective technology, device or component that, in the ordinary course of its operation,

(a) controls access to a work, to a performer’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner; or

(b) restricts the doing — with respect to a work, to a performer’s performance fixed in a sound recording or to a sound recording — of any act referred to in section 3, 15 or 18 and any act for which remuneration is payable under section 19.[2]

While this law takes a rather general approach as far as what qualifies as a TPM, TPMs usually come in the form of software programs or physical devices.

The law speaks directly to both “control” and to “restrictions”, implying that someone or some organization will be the locus of that control and thus determine the scope of the restriction. We need to consider the nature of this control and related restrictions because it is critical to understanding associated archival problems.

Watermarks are a form of TPM, which tend to include metadata and other identifying information about the source of the content to which they’re applied. A watermark might be something that is not perceptible to the person using or accessing the content but allows a rights holder to track and identify the content. TPMs like watermarks (which merely discourage use, and mostly in a commercial milieu) do not present archives with the problems that other forms of TPMs, which prevent or prohibit use do.

Encryption is a form of TPM, which I’d say is of great concern with respect to long-term digital preservation and copyright law. Encrypted content ceases to be meaningful or even recognizable as content to people—upon being encrypted, it’s arranged in such a way that it can only be rearranged into something meaningful if someone has the necessary code or other means to decrypt the content. Encryption can prevent use.

Other problematic forms of TPM may not encrypt the content but use techniques that simply don’t permit the content to be accessed without some sort of an electronic or physical key. This might be applied through a proprietary application using storage formats that do not conform to open, public standards. In a broad sense, proprietary software applications themselves could be a de facto form of TPM because their proprietary nature prevents them (and thus the content’s accessibility) from being used on systems their developers didn’t design them to operate on. Someone would require the rights to use not just the proprietary program but also the operating system on which it runs. There would be at least two levels of rights necessary to access the content, in addition to any content rights-holder permissions.

A significant way in which TPMs under Bill C-11 interfere with archival practices is in the digital backup process. I’ve mentioned several forms of TPM, so I would like to identify what the bill disallows with respect to these and then explain what that means to archival practices.

A portion of Bill C-11 covers making backup copies. Making backup copies is necessary to digital preservation practices. As I’ll explain, it’s a standard part of TDR strategies without which, problems arise for ensuring the integrity, availability, and long-term preservation of both digital content and digital surrogates of physical archives. Section 29.24 states:

It is not an infringement of copyright in a work or other subject-matter for a person who owns — or has a licence to use — a copy of the work or subject-matter… to reproduce the source copy if…

(c) the person, in order to make the reproduction, did not circumvent, as defined in section 41, a technological protection measure, as defined in that section, or cause one to be circumvented; and

(d) the person does not give any of the reproductions away.[3]

Presumably an archive would own or have a licence to use the work in its holdings (this could be specified in donor agreements and its relationship with the institutions it serves). Although there is an exemption for archives to make copies in the case of obsolescence or technological unavailability[4], it does not exempt circumventing TPMs to make those copies. Subsection (c) of 29.24 effectively prohibited the circumvention of a TPM for the backup copy process.

Of course, an archive’s purpose is not just for preserving its holdings but to enable access to them. Archives will necessarily have to circumvent TPMs to make copies of their digital holdings (as I will show when I discuss TDRs). Providing access is just the opposite of subsection (d).

Given the present state of common digital technologies, it’s increasingly likely that some form of TPM might encumber records that could be of value to an archive. Here is an example.

As published material, e-books (or other digital documents available from online journals, library electronic lending systems, and commercial providers such as companies like Amazon) are in-and-of-themselves probably not of much interest to archives. But the rise of their use changes something valuable for archives, and the associated technical problems for archives are not isolated to e-books.

Whereas in the past, institutional archives like those serving a university might include the notes of professors in their holdings, these notes might now be produced just in a digital-native format. The reading applications used for e-books enable people to annotate or otherwise insert content of their own in relation to the material of the e-book. Like the professor’s notes of the past, these digital annotations could be valuable to an appropriate archive.

Assuming the professor worked with a TPM-encumbered document, the software tool used to read and annotate it might store the notes separately from the source PDF, relying on a relationship between the two files to present them together. Alternatively, the application may have altered the PDF and saved it containing the notes.

Here are the problems with this situation. The professor could donate (or someone else could on his behalf) his notes to an archive. Without the means to legitimately access the notes or if the means no longer exist, performing backup procedures or gaining access for migration processes that are needed for long term preservation, would require circumventing the TPM.

Because archives may not circumvent the TPM under C-11, they may not be capable of properly storing the notes. Even if an archive decided that separating the notes from the corresponding source material wouldn’t render them meaningless, it’s possible that the archive would need to find a technical means to bypass the permission restriction of either or both the document and reading application.

Additionally, the instability of commercial entities (e.g. software vendors) business processes or of their ongoing viability becomes a major threat to assuring future generations of the ability to access TPM-encumbered content. The Association of Research Libraries states:

No one really likes technical protection measures, especially as they are employed by copyright owners to “safeguard” digital contents. Members of the information-seeking public justly complain that the use of TPMs may interfere with the exercise of their rights to access and use copyrighted content fairly.[5]

The exercise of rights has important implications with respect to long term digital preservation. To understand this complaint we should consider why TPMs interfere with our exercise of rights such as the fair dealing[6] right to make copies, in an archival context.

Next, I would like like to examine archival goals and strategies for the long term preservation of digital content, particularly in terms of the role of TDRs. This will enable a better understanding of how TPMs and current copyright law come into conflict with the exercise of our rights. I will address how backups and migration practices form key parts of a TDR strategy.

End of part one in a series of three posts.


Notes

  1. An Act to amend the Copyright Act. Statutes of Canada. 2012, c 20.
  2. Section 47, An Act to amend the Copyright Act. Statutes of Canada. 2012, c 20.
  3. Section 29.24, An Act to amend the Copyright Act. Statutes of Canada. 2012, c 20.
  4. Section 28 (c), An Act to amend the Copyright Act. Statutes of Canada. 2012, c 20.
  5. “Briefing: Demystifying Technical Protection Measures (TPMs) in the Library.” Association of Research Libraries (ARL). 25 January 2012. http://www.arl.org/pp/ppcopyright/codefairuse/demystifying-tpms.shtml 31 October 2012.
  6. Section 21, An Act to amend the Copyright Act. Statutes of Canada. 2012, c 20. ↑
Click to see a list of references

References

An Act to amend the Copyright Act. Statutes of Canada. 2012, c 20.
Andre, Pamela Q.C., et al. “Preserving Digital Information Report of the Task Force on Archiving of Digital Information,” The Commission on Preservation and Access and The Research Libraries Group. (1996). http://www.oclc.org/research/activities/digpresstudy.html (30 October 2012).
Bak, Greg and Armstrong, Pam. “Points of convergence: seamless long-term access to digital publications and archival records at library and archives Canada,” Archival Science Volume 8, Issue 4, (2008) pp 279-293, http://link.springer.com/article/10.1007%2Fs10502-009-9091-4?LI=true (30 October 2012).
Beagrie, Neil, et al. “Trusted Digital Repositories: Attributes and Responsibilities,” Research Libraries Group. (2002). http://www.oclc.org/research/activities/trustedrep.html (30 October 2012).
Briefing: Demystifying Technical Protection Measures (TPMs) in the Library.” Association of Research Libraries (ARL). 25 January 2012. http://www.arl.org/pp/ppcopyright/codefairuse/demystifying-tpms.shtml (31 October 2012).
Canadian Council of Archives “Guidelines for Appraisal Criteria for Non-Institutional Records” in Building a National Acquisition Strategy. Ottawa. Canadian Council of Archives, p. 53-61.
Jantz, Ronald and Giarlo, Michael. “Digital Archiving and Preservation: Technologies and Processes for a Trusted Repository.” Journal of Archival Organization 4:1-2 2008: 193-213. http://dx.doi.org/10.1300/J201v04n01_10 (30 October 2012).
Library and Archives of Canada Act. Statutes of Canada. 2004, c 11.
Ridner, John. From Polders to Postmodernism: A Concise History of Archival Theory. Duluth, Minnesota: Litwin Books, LLC, p.143-161.

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