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.

The post You Bought It... But It's Not Yours: The New Reality of Digital Copyright appeared first on IPOsgoode.

The dust over Google’s has not even begun to settle, when already the next copyright infringement dispute between the two parties seems to be looming. For more information regarding the now-infamous Google Books Lawsuit, see the article by fellow IPilogue Editor, Matt Lonsdale,

The latest complaint, was filed on September 12, 2011, by a combination of organizations and individuals, all of whom have the common interest of protecting authors’ copyright over their works. The document alleges, in no uncertain terms, that Google has been involved (with the help of HathiTrust and by partnering with certain educational institutions) in the “systematic, concerted, widespread and unauthorized reproduction and distribution of millions of copyrighted books and other works,” and that this infringement quite clearly goes against sections 106, 107 and 108 of the . The plaintiffs are the , , and (UNEQ), while the individual authors include Pat Cummings, André Roy and James Shapiro, among others. The defendants, on the other hand, are all organizations— (a digital library and preservation database), Google Inc. and the libraries of the Universities of Michigan, California, Wisconsin, Indiana, and Cornell University.

The major issues outlined in the complaint are centred around Google and the universities’ disregard for authorship rights of writers whose names are attached with their works, as well as for the purported “orphans” of global literature, i.e. “copyrighted works whose authors may be impossible to identify and locate,” as per provided by the . Google’s main partner in this (alleged) digital thievery, HathiTrust, provides the infrastructure for the storage and preservation of works once they have been copied into bytes. The works themselves are provided to Google through a “cooperative” agreement with the university libraries, and the actual physical process of digitization is conducted by Google, with its own software and tools. Because of the nature of these agreements, the plaintiffs state that every work is ultimately made into 12 separate copies, with the various defendants keeping these for their own use— whether for commercial or non-profit. The plaintiffs also mention that in no case do either Google or the other defendants seek permission for the reproduction of authors’ works, even when the materials in question are written by well-known and much-awarded authors.

As a defence, the defendants allege that the reproductions are for the public good, namely for the “tremendous societal value provided by [the] nation’s libraries and archives in preserving and securing works of art, literature and science.” The defendants are pointing to the “library exemption” provision under of the US Copyright Act that allows for the selected reproduction of materials by libraries, in order to ensure greater public access. However, the plaintiffs then point to , which specifically prevents almost all of the activity that the defendants have been carrying out, namely, the justified reproduction and preservation of documents, without any direct or indirect commercial advantage. While HathiTrust says that it is a medium for storage and access alone, the degrees of access are controlled by the HathiTrust Rights Database, which may very well charge a fee to the public or even release “full” versions of the works for free.

Additionally, the creation of the HathiTrust Orphan Works Project, a plan devised to weed out  “authorless” works, has the plaintiffs up in arms. The Project has been formulated to find out if works without identified authors are available for commercial use, by determining the nature of their copyright. Interestingly, the “multistep due diligence process” is devised and carried out by HathiWorks itself, which tries to contact an author (if such a person is found) and, failing that, lists a work on its website to be claimed within 90 days of posting. After this time, the work is deemed freely accessible to the public in full and may be eligible for future commercial copyright by Google.

On reading the complaint, the reasons for the plaintiffs’ wrath becomes quite clear. As the document mentions, Google’s actions seem intent on dismissing the authors’ rights by involving educational institutions in what is fast-becoming one the biggest copyright infringement actions in history. Additionally, Google’s hasty scheme to digitize as much as possible, as fast as possible, leads one to think that the universities themselves have not placed much thought into the Project. The University of Michigan’s due to errors in the “pilot process” shows that the educational institution may have been carried away by the venture.

The Authors Guild website has enlisted the help of millions of readers worldwide to .” Considering this endeavour is only a couple of weeks old, the remarkable success rate shows the public’s desire to keep information open, but not at the cost of authors. shows Google’s unwillingness to compromise, but it seems that the universities involved are attempting to work out a legal solution to the issue.

Barry Sookman and Dan Glover also talk about , where fair dealing and lending without reproduction exist, but within reasonable limits. This is a special responsibility for universities, which provide access to information to millions of readers worldwide. Educational institutions are already both the sources and the propagators of original thought and creativity, as well as media for dissemination of knowledge to the public.  Academics themselves might be subject to unauthorized reproduction if the HathiTrust projects are allowed to go on. The mass release of scholarship to the general public through private parties could affect the quality of education offered in institutions of higher learning, with the universities ultimately having no one but themselves to blame for going googly-eyed over Google’s ceaseless .

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In a much publicized move, Amazon two books from users' e-book readers. It causes one to wonder what rights we actually have in our digital possessions in this increasingly connected world.

As you quickly learn when you start studying IP law, property rights become a lot more complicated when you're not dealing with physical objects. It's not too hard to figure out who owns a hardcover book and it's straightforward to give, lend or sell your copy. You own a book---a bundle of pages covered in ink---and you can do with that as you please. You don't own the work, the author probably owns that but there is no need to talk of licensing, because when you give away the book your ability to read it goes away too.

Digital content is different because there is no object you can point to and say: "I own that." You might say you own the file, but a file is a tricky thing to pin down. You can (and should) have multiple copies of files. You move a file to a new location by creating a fresh copy and destroying the old one. You can share it with a friend, retain the ability to use it yourself and, more tellingly, you retain the right to use it while your friend gets nothing. The best you can say is that you have some licence to copy and use the work. But the average consumer is used to thinking that he owns something in the traditional sense and it can be frustrating when reality doesn't match up with expectations.

You do own the device on which you store and play the file but, as Dugie Standeford points out in a at IP Watch, your control over the device is incomplete. It's hard to imagine someone from Chapters coming to your house and demanding a book back because they didn't have the right to sell it. But we've seen Amazon do it. Many devices (computers, phones, personal video records, MP3 players, and so on) phone home daily or weekly to check for software updates or download information. The ability the companies have to alter content stored on your devices is limited only by your user agreement---which is to say that it's probably not limited at all. This, too, differs from traditional expectations.

In this world of content in which our rights are dependent on licences and devices that are controlled remotely by the manufacturers, are new laws needed to protect consumers? It depends on what you mean by new. Certainly governments need to protect reasonable consumer expectations. For example, if I buy a digital audio player that plays MP3s, I reasonably expect that it will continue to do that in the future. It would be unfair if that feature was removed. This, however, is just another application or an extension of existing consumer protection laws. If companies are using these devices to exclude content from other sources, we have competition law. As Standeford's post says, this is just what regulators have been doing for years.

Policymakers must be careful to not get too excited about safeguarding consumer expectations derived from physical possession and non-networked devices. New technology will always surprise or annoy some people but that is no reason to hold it back in all cases. If you buy a reclining chair, you don't expect the manufacturer to come to your house and prevent it from reclining. If it turns out that this specific model of chair has been collapsing and injuring owners, however, you might wish that they would and you might also want to be compensated. There is a balance to be struck between the old ways and the new possibilities.

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