My colleague, Michael Geist, recently noted that the Government of Canada’s proposed copyright reforms—now contained in Bill C-60—raise serious problems, including consumer protection issues. He also mentioned that I’ve been studying some of the Constitutional implications of the Government’s plans. He’s right. I’ve been thinking and writing a lot lately about copyright and the Constitution’s division of legislative powers, which allocates responsibility for various subjects to either the federal or provincial government. My conclusion: its time for the provinces to get involved in the copyright reform debate.
First a little background about Bill-60, the new copyright legislation that is supposed to combat peer-to-peer file sharing and bring Canada into compliance with its international treaty obligations. Among other things, it clarifies that it is illegal to make copyrighted materials available on the Internet (although “downloading” may still be acceptable). It requires Internet Service Providers to pass along notices to subscribers whenever someone alleges their copyright has been infringed. And it will make it an infringement of copyright to circumvent what are known as technological protection measures—those digital locks that enable producers of movies, music and other digital content to control exactly what consumers can or cannot do with their purchases. It will also be an infringement to tamper with rights management information—data for tracking consumers’ use of digital materials. These last two aspects of the Bill, the anti-circumvention and anti-tampering provisions, are particularly troubling from a Constitutional perspective.
Here’s the problem in a nutshell. Canada’s Constitution gives the federal government authority to legislate in respect of “Copyrights”. Until now, it seems to have been taken for granted that Parliament can include anti-circumvention and anti-tampering provisions in amendments to the Copyright Act, pursuant to its jurisdiction under the Copyrights clause. But the Constitution also empowers the provinces to make laws in respect of “Property and Civil Rights.” Although the proposed provisions are somewhat connected to copyrights, they simultaneously implicate numerous issues typically reserved for provincial legislators, such as contractual obligations, consumer protection, e-commerce and the regulation of classic property rights.
In “pith and substance” this seems to be a matter of regulating technological and contractual controls over terms of distribution of digital materials. The real purpose of these provisions is to support the use of technologies and contracts instead of copyrights. The qualifications on the legal effects of the proposed provisions, intended to tether the laws to existing copyright doctrine, may not be sufficient to save this legislation. Mechanisms are needed to ensure the provisions’ limited legal effects are not rendered moot by their sweeping practical effects. Moreover, some elements of the Government’s proposal, especially the prohibition on circumvention services (whatever those are), could represent a radical departure from existing Canadian copyright rules.
Clearly, the Copyrights clause does not give Parliament carte blanche to enact cultural, economic, technological or regulatory policies under the auspices of the Copyright Act. And there are serious doubts whether this can be sustained as a matter within federal authority over other heads of power, such as Trade and Commerce, Criminal Law or laws for the Peace, Order and good Government of Canada. A strong argument can be made that this issue falls under the provinces’ authority in respect of Property and Civil Rights. Certainly, the broader the provisions, the further they trench into the provinces’ domain, and the more vulnerable they become. The Government’s proposal, as is, seems to creep rather far into the provincial domain, and may not be salvagable as ancillary to an overall valid copyright scheme. It is arguable that this is a colourable attempt to expand the boundaries of Copyrights further into Property and Civil Rights.
At a minimum, it seems likely that the provinces’ could take jurisdiction over certain aspects of regulating TPMs and RMI systems. Provincial Attorney Generals must, therefore, contribute to this discussion. Doing so will facilitate democratic involvement in the law reform process, and maximize opportunities for effective citizen participation. These are among the foremost goals not only of copyright law, but also of the entire Canadian federal system.
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