By Xiang Zhang
The problem begins with an experience that has become increasingly common in academic research. As a PhD student, I read a lot. My research takes me through hundreds of journal articles, books, reports, and historical sources. Increasingly, many of these materials exist in digital form, some openly accessible, others available through institutional subscriptions, and yet others that I have had to purchase myself. In dealing with these digital formats, one frustration keeps resurfacing—
I open an e-book, one that I have paid for and purchased, I locate a passage relevant to my research, highlight the text and click "copy" and attempt to paste it into my notes. Instead of obtaining a quotation for my literature review, I receive a warning that copying, or even taking screenshots, has been disabled, as it violates the platform's terms of service and any attempts to bypass these restrictions could jeopardize my access altogether. The result is striking. Although I have paid for the work, I cannot engage with it in many of the ordinary ways that scholarship requires. The only meaningful entitlement I have acquired is the ability to read the text; I cannot quote, annotate, compare passages, or otherwise interact with the text in the ordinary digital ways; and those interactions are now subject to technological and contractual control.
At first glance, this feels like a minor inconvenience. But having spent the last several years researching copyright law as part of my doctoral work, I've come to see it as something much more significant. It reflects a profound shift in the way copyright operates. In the digital world, copyright is no longer concerned primarily with preventing unauthorized copying. It functions as a mechanism for controlling how, when and even whether users may access and make lawful use of works they have legitimately acquired.
This transformation is difficult to reconcile with the traditional purpose of copyright law. Ideally, copyright serves a dual purpose: it rewards and encourages creative endeavor while promoting learning, innovation, and the dissemination of knowledge. Canadian copyright jurisprudence has consistently recognized that these objectives require a careful balance between creators' exclusive rights and the public interest. In , the Supreme Court of Canada emphasized that this balance depends on the "limited nature" of creators' rights. Later in , the Court went further, recognizing fair dealing as a "users' right," rather than merely an exception or "just loopholes." Together, these decisions affirm that users are not external to the copyright system, they are an integral part of the balance that copyright is intended to achieve.
These challenges arise because digital technologies have fundamentally altered the practical operation of copyright. In the world of printed books, records, discs, and other physical copies, copyright holders could control reproduction and some distribution, but they usually could not supervise every act of reading, listening, repairing, lending, reselling, quoting, or private discussion. Once a lawful copy entered a user's hand, many ordinary activities would be lawful, tolerated, or beyond copyright's practical reach. Digital platforms unsettle that routine. Technical protection measures (TPMs) create technological fences around works. Anti-circumvention rules give legal force to those fences. Non-negotiable terms of service (ToS) add a further layer of private ordering by turning access into an ongoing license that may be restricted, suspended, modified, or terminated by the platform. Rather than relying on courts to determine whether a particular use infringes copyright, technological restrictions can prevent users from engaging in that activity altogether. Together, these mechanisms shift copyright's center of gravity from copying to access. A digital lock may prevent infringement, but it may also prevent exempted dealings for research, private study, criticism, review, education, parody, satire, or news reporting. It can also interfere with accessibility, preservation, repair, interoperability, or the use of works that copyright law no longer protects. A user may have a rightful exemption, but the access remains technically blocked and legally risky to circumvent.
As I study these issues in my research, I have become convinced that technological neutrality must mean more than applying the same statutory language to new technologies. It is not enough for copyright law to apply the same legal principles to both physical and digital works if the rights available to users are fundamentally different in practice. Printed books could be read, annotated, lent to a friend, resold, quoted for research, or preserved in libraries. Copyright still applied, but ordinary uses remained possible because ownership of the physical copy carried practical freedoms. The shift from a printed book to an e-book should not transform quotation from a lawful use into a platform-controlled privilege. Nor should the move from ownership to digital licensing eliminate long-standing practices such as lending, resale, repair, or interoperability. If copyright is to remain balanced in the digital age, it must preserve not only equivalent protections for creators, but also equivalent freedoms for users.
Restoring copyright's balance in the digital environment requires two complementary reforms. First, users' rights must become more than procedural defenses raised after litigation. If the Copyright Act recognizes fair dealing and other limitations as lawful uses, users should have a meaningful mechanism to exercise those rights when they are frustrated by technical protection measures or contractual restrictions. Rights that exist only in theory, but cannot be exercised in practice, risk becoming illusory. Second, copyright law should establish a baseline of digital users' rights that cannot be displaced through standard-form contracts or technological controls. These baseline protections should preserve the ordinary incidents of lawful use that have long accompanied ownership and access, including quotation for research, accessibility, preservation, repair, interoperability, ownership of user-generated content, and procedural fairness before access to lawfully acquired digital works is suspended or terminated.
As an initiative to restore the balance, such reforms would not diminish copyright protection; rather, they would preserve the ordinary ways of dealing that copyright law has always contemplated: to read, quote, annotate, compare, preserve, and learn. These activities are not loopholes. They are the very reason copyright exists. If purchasing a digital book leaves us with fewer practical freedoms than buying its printed equivalent, then the balance at the heart of copyright has quietly shifted, with lawful rights becoming luxury privileges. Preserving copyright's balance in the digital age requires more than adapting existing rules to new technologies. It requires ensuring that the practical freedoms traditionally enjoyed by users are not lost simply because knowledge is delivered through digital means.
Xiang Zhang is a doctoral student at Osgoode Hall Law School and an IP Osgoode Senior Research Fellow.