News

Behind the Scenes of Bill C-32: Govt’s Clause-By-Clause Analysis Raises Constitutional Questions

The constitutionality of digital lock legislation has been examined in two articles by Canadian law professors. Both conclude that the provisions are constitutionally suspect if they do not contain a clear link to conventional copyright law. Their reasoning is that the constitution grants jurisdiction over copyright to the federal government, but jurisdiction over property rights is a provincial matter. Digital lock legislation that is consistent with existing copyright law – ie. one that factors in existing exceptions – is more clearly a matter of copyright.  The C-32 provisions are arguably far more about property rights since the provisions may be contained in the Copyright Act, but they are focused primarily on the rights associated with personal property and expressly exclude copyright defences.

My colleague Jeremy deBeer conducted a detailed analysis of this issue in his article, Constitutional Jurisdiction over Paracopyright Laws. Many of his arguments were echoed in a 2009 article published in the Journal of Information Law and Technology by Professor Emir Aly Crowne-Mohammed and Yonatan Rozenszajn, both from the University of Windsor, which concluded that the anti-circumvention provisions found in Bill C-61 were unconstitutional.  The authors argue that the DRM provisions were “a poorly veiled attempt by the Government to strengthen the contractual rights available to copyright owners, in the guise of copyright reform and the implementation of Canada’s international obligations.”

The government’s own analysis appears to confirm the constitutional concerns as it points to reforms that expressly create liability even in the absence of copyright infringement. The solution is an easy one – by linking circumvention to actual copyright infringement (as education, consumer groups, and technology companies have advocated), the bill would more readily withstand a constitutional challenge.

110 Comments

  1. When might the new copyright actually become law?

  2. Michael, although your intent is clear… to play devil’s advocate for a moment, I do not think that linking circumvention to actual copyright infringement would be adequate… specifically, if the copyright act is going to be amended by this bill, then wouldn’t the actual act of circumventing a digitally protected work *BE* infringement itself, and therefore copyright infringement? (rendering the entire notion of linking them as a redundant requirement). To carry your meaning forward, therefore, it might be more accurate to require that circumvention be _otherwise_ linked to actual infringement, so that proponents of this bill can’t just try to pretend to satisfy its critics by using a more ambiguous wording.

  3. I’m still trying to fully understand the digital locks aspect, especially for PVRs. Networks can choose to put a digital lock on a show so that it cannot be recorded? Yet we can still buy PVR’s from our cable companies. It just doesn’t make sense that we can buy something yet not use it to its full extent for personal use.

    Am I understanding this correctly? Why would the CPC want to do something that not only penalizes the consumer, but will also result in less sales of something?

    Also, what are the odds of digital locks being actually used so that we cannot record things?

  4. @Mark
    “Wouldn’t the actual act of circumventing a digitally protected work *BE* infringement itself?”

    Not if there is no registered copyright on the digitally protected work. Otherwise you may (unfortunately) be right.

  5. @Mark
    Sorry, I think the answer to your question is above:

    “However, a contravention of [the TPM prohibition] is not an infringement of copyright and the defences to infringement of copyright are not defences to these prohibitions.”

  6. I look forward to the day where working on my car by reading the codes with a code reader not authorized by the manufacturer would lead me to breaking a law.

    I’m sure lots of mechanics are looking forward to the day where they have to buy diagnostic equipment from Ford/Chevy/Dodge/etc… in order not be be breaking any laws.

    Oh your LG fridge is going ape shit after warranty because of a software glich and someone has a fix for it but because it breaks the digital lock on the fridges formware/software you get a free go to jail card for trying to fix it.

    This is pretty insane and istead of innovating and giving the customer what they want corporations rather pay off politicians to pass insane laws. I’m sure the politicians don’t mind the promise of some cushy pay out or consulting job after their leave their gov position.

  7. If I read this right, it will actually be more legal to download a torrent of a movie than to buy the movie on DVD/Blu-Ray and rip it.

    Works for me.

  8. DRM has no term limits says:

    Copyright is supposed to have a limited term, but the DRM locking it doesn’t.

    So what would happen if a DVD’s copyright finally expired in your grandchildren generation and the public is not allowed to break the DRM on the DVD to make it truely available?

    So who is stealing from the public good in this case?

  9. The right to read
    It’s all about this:

    http://www.gnu.org/philosophy/right-to-read.html

    Nap.

  10. Oh now, don’t you worry. Copyright being limited is only a minor issue we are working hard on. With the Sonny Bono copyright extension act, we’ve already succeeded in preventing anything from entering the public domain in the US until at least 2019 and you can be sure that this date will be extended again before we actually get to 2019. In the EU last week we succeeded in extending the copyright on sound recordings another 20 years retroactively. And yes, your fair little country is next. Dear, dear. You only have live+50, while the rest of the world has moved onto life+70 or better. That will change very soon.

    Do not worry. Copyright will soon enjoy the same permanence as DRM does.

  11. @DRM has no term limits
    Copyright was originally a trade-off between “creators” and “public”. Starting with the Berne Life+ system, this trade-off became unfair as contemporaries would not see a copyright of a new work expire in their own lifetimes. While copyrights still have an expiration date, this is merely an excuse that is being used; adding works to the public domain is not a goal you see discussed when politicians talk about copyrights.

    Criminalizing circumvention of DRM is the Endlosung, the Final Solution, to kill the public domain. This ensures works will never enter the public domain, even after the copyright long expired.

    In the not-too-distant future, in Europe (no first-past-the-post), a fresh wind will start to blow from the opposite direction. The old die off, to be replaced by young, Internet-generation voters. You can see which direction that is heading. Canada will be wise to follow, isolating the US if they choose not to.


  12. @Byte: “Copyright was originally a trade-off between “creators” and “public”.”

    Not really. It was conceived both as a censorship tool and as a lucrative monopoly:

    http://en.wikipedia.org/wiki/Copyright#Early_European_printers.27_monopoly

    These days we’re just perfecting it.

    Nap.

  13. Stephan Wehner says:

    Is it possible that there cannot be any copyright in an encrypted text, because it is “scrambled”, and is not a derived work (since you can’t call it a work)?

    I find it interesting that the section “Access Cobntrol TPMs” defines TPMs in terms of “effective technology”. I thought most of these schemes are actually simply ineffective.

  14. My point was that if circumvention is linked to copyright infringement by the text of the bill (it isn’t currently, by my understanding), then the notion of circumventing without committing copyright infringement is about as much of a contradiction in terms as the notion of “dead survivors”. I would firmly maintain that if circumvention is to be prohibited, then it should only prohibit circumvention that *OTHERWISE*
    results in copyright infringement, and absolutely no prohibition on tools that might be used to circumvent infringement (unless there actually is no other obvious legal use for the tool, but I’d dare say that’s probably unusual).

    But that’s not what the conservatives want. And I don’t think they even care whether it is constitutionally valid or not.

  15. D’oh! Typo in the above… I meant absolutely no prohibition on tools that might be used to circumvent digital locks.

  16. @Napalm: you are right, of course, I should have been more careful with my choice of words. I should have said: in earlier times.

    As to ‘perfecting’ copyright and related (DRM) law, I’m sure even readers of this blog will have different opinions. The thing is, today we all have printing presses, photo processing labs, CD and DVD factories right in our own homes, a big difference from 40 years ago where nobody really cared.

    Telling people they can’t copy a 78 rpm recording of Louis Armstrong’s “Body and Soul” because it’s (c)1930 (80+ years ago) is already hard to rationalize, but you have it easy because not a lot of people care about old, scratchy mono recordings. Telling people they can’t fill up their home theatre PC with rips from DVDs they own is going to be a lot more difficult. But that’s what needs to happen: a large portion of the (voting) public being directly affected in a negative way. As good as every DVD (CSS) and BD (AACS with BD+) has a “digital lock”, so bye bye HTPCs.


  17. @Byte:

    I meant “perfecting” as in making it even more lucrative :-)

    Nap.

  18. Need it be said laws that are perceived to be unfair by the majority will be largely ignored and unenforceable?

    Add to that circumventing our constitutional rights for the sake of a foreign government’s financial interests?

    I think you see where I’m going with this.

  19. Just get a large enough protest going.
    Once the outcry is large enough Harper should flip-flop once more. The man is a consummate politician–everything he seems to do and say is to further his political power not stick to morals.

  20. R. Bassett Jr. says:

    Sense – Evidently still not common.
    If this is how our elected officials spend our tax dollars on “getting tough on crime”, then I think we Canadians need to respond by “getting tough on stupid” and elect some folks who can lead without being lead. Perhaps even putting an end to party politics and having simply an upper and lower house of people elected on their personal merit rather party affiliation is order. Take Gille Duceppe for example, we lost a real “stand up guy” representing us when he was not re-elected and it’s sad, because not only does he care about Quebec maintaining its unique culture, he always proved that just governance and belief in the democratic process is more important than political agendas – some label him a “separatist”, but I always felt he was one hell of a great Canadian and he would have been one of our country’s most loved Prime Ministers had he been the leader of a different party. That’s the sad part in all of this, the good folks who could lead us with sensibility and respect, like Charlie Angus and Gille Duceppe, are side lined by party politics and render ineffective by the on going culture of pompous entitlement in Canadian politics.

    Can we please start “getting tough on stupid”, Canada? Can we please send these politicians the message that we expect sense to return to our House of Commons?

  21. Provincial elections are about a week away.
    If you want to send the PC party a message, vote against them.

  22. Provincial elections are about a week away.
    If you really want to ensure that politicians listen to the electorate, send a clear message to the PC party by voting AGAINST them.

    Otherwise, stop complaining.

  23. Even more reason to pirate stuff.

  24. Maeb: It’s one thing to oppose an unjust law, it’s quite another to advocate utter abandonment of a long-standing legal social contract (which is all that copyright really is) as a means of opposing it. If content creators cannot rely on the contract of copyright to protect
    their interests, they will resort to other measures, ones that inevitably create inconveniences for the consumer, and while that will not be a significant problem for somebody of sufficient technical skill, or especially somebody who has decided to break the law anyways, it is a huge problem for people who genuinely have a desire to be law-abiding.

    While I strongly advocate the concept of copyright, the single biggest problem with C32′s provisions is that in the worst case, they deprive the consumer of privileges that everybody takes for granted under the sole discretion of the content creator. If copying within the scope of fair dealing were an actual infringement on the creator’s copying rights, then there is no reason that there should be any such exemption in the first place, regardless of the presence of a digital lock. Therefore, by itself, removal of digital locks on copyrighted works cannot actually infringe on a copyright holder’s rights unless one also copies the work outside of the scope of fair dealing, or creates a derivative work that falls under the jurisdiction of the original copyright.

    To that end, although under C32, such circumvention would be just as illegal as copyright infringement itself, I have less of a problem circumventing TPM’s, because such an act does not infringe on the copyright holder’s rights, whereas copying the work without the copyright holder’s permission does (since copyright is exclusive, and by definition if somebody else is doing it without permission, they are violating that exclusivity).

  25. @Mark
    Hi there Mark. If you read here and similar places around the Internet more regularly, you will find that the biggest advocates of copyright reform are actually strong supporters of copyright. No copyright, no GPL for instance, and no Creative Commons.

    The biggest beef with copyright is the term; some advocates like the Pirate Party of Canada want very short terms to the order of 5-10 years (I guess this is just a starting point), most are thinking in the order of 14-28 years, the high end being around 50 years. Related to this are the various related rights; copyright term reduction needs to happen “across the board” so they all expire at the same time. This ideal would of course be frustrated by a never-expiring DRM anti-circumvention law.

  26. online streaming video not covered yet…..
    i love how the system is built purely for the elites of the entertainment world, i take a dvd, i place said dvd in my computer, i press play on that dvd, i allow others to watch it with me from all over the world (and have maybe 100 people world wide tune in, keep in mind there are 6.5+ billion of them)…. no drm breaks…. no copying of files…. so in my opinion no infringement is taking place, yet i get letters saying im breaking copyright laws, dont you have to actually “copy” something before it even gets considered as a violation?? not that it matters at current pace, the conservatives are going to continue to cater to their american masters

    if you do the math approx 36 million people in canada, of which approx 45% of are connected to the internet (and over half of them on dialup services) which amounts to roughly 8.1 million people (taking into account the removal of dialup users of whom would take months to dl a single movie or weeks for a single song) of which 5-10% use torrents and file sharing (the main target of this) which amounts to about 81000 people doing so for 99% personal use and im figuring thats really really high, how in the hell can 81000 people cause any form of disruption or damage to an industry that caters to freaking 100′s of millions of people?????

    not to mention the amount of business thats gonna be lost and the redundancies of most technology thats being created today being made illegal to use because of what it can do

    welcome to the police state, want change? want your country back? stop voting in these ______(fill in the blank) otherwise apply for your american citizenship today because in no time at all thats all canada is gonna be, the next 13 or so states of the usa

  27. sorry typo 810000 people which is why i said its probably really really high

  28. Restposten
    This article is really useful and have been looking for some information on this topic. Great job and waiting for your next update. Grosshandel Sonderposten You are great with words. I’m sure you worked really hard on this article, and it shows. I agree with a lot of your material. I enjoyed this and I will be back for more.Good steps have been used in this article. By giving these type of examples we can easily understand what the writter is saying in this article. Grosshandel Adressen

  29. Sonderposten says:

    Sonderposten
    http://www.33web.de

  30. I enjoyed this and I will be back for more.Good steps have been used in this article. By giving these type of examples we can easily understand what the writter is saying in this article. http://www.profischnell.com | http://www.profischnell.de

  31. Aufkleber Pferd says:

    Textildruckelmshorn
    This article is really good and includes lot of information. Good job, we`ll waiting for more and follow. I wish there where more articles like this in german. thx Textildruck-Elmshorn
    http://www.textildruckelmshorn.de

  32. T-Shirtdruck says:

    Elmshorn T-Shirt Druck

  33. schnell online
    http://www.tarif-king.de
    thx for all, go ahead

  34. great article thanks for all that
    Prepaid Angebote
    Handy Bundle Roller
    Handyvertrag Galaxy S3
    DSL Verfügbarkeit
    Dual Sim Adapter Iphone
    Flatrate Angebote
    Vipnummer kaufen
    Hundeschild mit Foto

  35. great article thanks for all that
    http://www.tarif-king.de
    thats it.thx

  36. a professional blog
    This a professional and intresting blog with inspiring informations, great work http://www.pferdeboxen-schilder.de

  37. Translation
    Do you have a translation? Look here: http://www.profi-fachuebersetzung.de and http://www.portedeurope.org

  38. Denny Lugres says:

    thanks
    Good job, we`ll waiting for more and follow. This article is really good and includes lot of information. linked here

  39. http://www.chat.gen.tr
    Sizin blog sitesi oldukça faydalıdır. Birçok faydalı makaleler ve diğer içeriğin verdiğiniz için çok teşekkür ederim.
    http://www.chat.gen.tr
    Wery Nice Askin :)

  40. incasso
    Thanks for this complicated answer http://www.nibincasso.nl

  41. wedding lighting says:

    http://www.tajweddingservices.co.uk/wedding_lights.html Hi, Nice work, I’ve bookmarked this page and have a feeling I’ll be returning to it regularly.

  42. Polish Translation says:
  43. Webhosting und Domain says:

    http://www.webhosting-und-domain.de
    Nice Articel!
    Thank you!
    Webhosting und Domain

  44. Great work
    Thanks for sharing this useful http://www.handyflat-vergleich.de article. A great blog with inspiring informations in a clear design, well done and greetings

  45. garage door repair phoenix says:

    garage door repair phoenix
    great post ,just i am finding this info on net for one hour i get more info about that from many blog but nothing like that what you posted .
    your post is so informative and unique ,i like this and bookmarked your blog and i will try to read your all post .
    thank you man for posting that great content.
    please keep it up.
    garage door repair phoenix

  46. garage door repair phoenix says:

    local seo
    this is a great post
    http://garagedoorrepair-phoenix.com

  47. Translator
    Hi do you have a translation look at: http://www.uebersetzung-deutsch-englisch.com

  48. good
    I added this website entry today for the reason that i’m trying to learn around I’m able to coping with this market. After reading through this online document I rapidly discovered how you presented the specifics the following is strictly things i was searching for today. You folks accomplish a remarkable job at generally posting information in regards to this particular subject.
    http://greenavis.com/

  49. When might the new copyright actually become law?
    Inna @ http://www.datingsearcher.net/

  50. LED Lenser taschenlampe says:

    I called a great post, very nice and cool.I love the Ingredients till its making said led taschenlampen

  51. LED Lenser taschenlampe says:

    the same
    very nice said http://www.led-co2.de

  52. HeinzeChris says:

    “The government’s own words on the digital lock provision confirm that they may be unconstitutional since they fall outside the boundaries of copyright. ” yeah, who does still believe in the words of the government? I mean.. seriously?!

    But I hope it will be done the right way…

    Chris
    ____________

    http://www.fachuebersetzungsbuero.com
    http://www.uebersetzungen-dolmetschen.de

  53. Sehr gut geworden
    This article is really useful and have been looking for some information on this topic. Great job and waiting for your next update. Grosshandel Sonderposten You are great with words. I’m sure you worked really hard on this article, and it shows. I agree with a lot of your material. I enjoyed this and I will be back for more.Good steps have been used in this article. By giving these type of examples we can easily understand what the writter is saying in this article. Grosshandel Adressen Gutschein Projekt

  54. Great work
    A very helpful blog with intresting and inspiring informations, many thanks for sharing! http://www.vertragshandy24.de

  55. Great work
    A very helpful blog with intresting and inspiring informations, many thanks for sharing! http://www.vertragshandy24.de

  56. Matthew Vale says:

    Thanks Michael
    Really interesting Article. Im not understanding it completely, but maybe i have to read it twice. ;) Boxenschilder and
    Geschenkideen für Reiter

  57. Matthew Vale says:

    Thanks Michael
    Really interesting Article. Im not understanding it completely, but maybe i have to read it twice. ;) http://www.equimea.de http://www.geschenkideen-für-reiter.de

  58. alvinkeith says:

    I have to say…
    I have to say I am very impressed with the way you efficiently website and your posts are so informative. http://saffronextractreviews.webs.com/

  59. Houlejuan says:

    After reading through this online document I rapidly discovered how you presented the specifics the following is strictly things i was searching for today. Watch Anime Online

  60. Houlejuan2 says:

    nice
    This is really interesting, You’re a very skilled blogger. I have joined your feed and look forward to seeking more of your excellent post. http://www.myanimestream.net/

  61. dennisroach1 says:

    nice
    I have to say I am very impressed with the way you efficiently website and your posts are so informative.
    how to get rid of scars on face

  62. mennyvillas says:

    I feel like this item unique. I found the call for silence, the best you can save site advertising information. Keep it up! http://www.homeinsurancequotesfinder.com/

  63. antonyaaron says:

    nice
    nice post. its really great. i forward looking more on your blog
    see this link http://howtoreducehairfall.in/

  64. great
    Great article, Thanks for sharing http://www.tarifvergleich-dsl.de these useful and inspiring informations.

  65. nice
    very nice post with professional content, well done. http://www.vertragshandy24.de

  66. HeinzeChris says:

    “The government’s own words on the digital lock provision confirm that they may be unconstitutional since they fall outside the boundaries of copyright. ” yeah, who does still believe in the words of the government? I mean.. seriously?!

    But I hope it will be done the right way…

    Chris
    ____________

    http://www.fachuebersetzungsbuero.com
    http://www.uebersetzungen-dolmetschen.de

  67. Blassy Cromp says:

    I am pleased..
    I am pleased with the photos that you upload on this page. In my opinion, the presence of several collections of photo to display on this page http://howtoreducehairfall.in/some-simple-solutions-to-stop-hair-fall/

  68. great
    Is that a good way to find these analysis? I wonder if that is true for http://iseoshop.com

  69. good
    If these information are correct, so I can apply for http://xhowtomakemoneyonline.com

  70. Solutions
    I will check these things before applying for my case like:
    http://xhowtomakemoneyonline.blogspot.com/

  71. Minneapolis
    I have to say I am very impressed with the way you efficiently website and your posts are so informative. check out https://lookboard.com for wholesale modern furniture.

  72. dinner in the desert says:

    dinner in the desert
    Danach hatte die Xing-Aktie jedoch kräftig Prügel bezogen. Bis auf fast 40 Euro stürzten die Papiere im August-Ausverkauf ab – nun die rasante Trendwende. dinner in the desert

  73. great
    Where to check the update about the analysis and how these questions can go for

  74. It should be checked with http://webdesignvalley.com or some other analysis.

  75. great
    Will it work for these bill and these related questions on http://yrdesign.net

  76. Great
    Did you check all updated news about these clause and cause for http://xhealthreport.com/pearly-penile-papules-removal/

  77. I will check these scenes and other things like http://yrdesign.net/wordpress-slider-plugin/

  78. If that works for most of cases, then this will be a great choice http://yrdesign.net/kallyas-responsive-multi-purpose-wordpress-theme/

  79. Great
    http://yrdesign.net/907-responsive-wp-one-page-parallax-download/
    can be the same ways if they know how to change the scenes and other related things.

  80. Not sure if that works for, but these analysis can be done for http://yrdesign.net/u-design-wordpress-theme/

  81. http://yrdesign.net/directory-portal-wordpress-theme/ has some related things like other ways and things without anything.

  82. Make sure that works for all clause and each clause on http://yrdesign.net/avada-wordpress-theme/

  83. Great
    Let’s check all questions like this and how they can work behind the scenes on http://yrdesign.net/blog-commenting/

  84. http://yrdesign.net/top-newest-responsive-wordpress-themes-of-june-2013/
    I will check them all to make sure they work for these analysis.

  85. It will be a good way like others can do, and how these analysis http://yrdesign.net/wordpress-themes-health-beauty/

  86. good
    thanks for this great article .

  87. good
    This article has some great and useful information about this subject. Thank you for sharing it in an easy to read and understandable format. Thanks for sharing this great information. Houston Web Design

  88. Agencia de Publicidad
    Very nice we blog and useful! I feel i will come back one day!

  89. Good
    Let me check to see what happened with the next analysis on http://simadong.com/

  90. good
    How can we get these things work out for the same cases on http://myphamcathydoll.com/

  91. great
    How can we apply for the same and other people can do the same for http://tinyurl.com/pxfovcd

  92. Tpa internacional directo
    I am really like it very much for the interesting info in this blog that to this website is providing the wonderful info in this blog that to utilize the great technology in this blog.

  93. I am really like it very much for the interesting info in this blog that to this website is providing the wonderful info in this blog that to utilize the great technology in this blog. Tpa internacional directo

  94. great
    Thank you for another essential article. Where else could anyone get that kind of information in such a complete way of writing ? I have a presentation incoming week, and I am on the lookout for such information. Essay Writing | Writing Services

  95. Beautiful!
    The article is beneficial to read.

    http://www.burukutuk.net/pregnancy

  96. ravish kunta says:

    law
    the Duflot Law 2014 ( http://loiduflot-2014.org )established a new Provision to promote rental investissements. This allows to benefit from an income tax reduction for the acquisition, between 1 January 2013 and 31 December 2016, a well in new buildings (housing never occupied) or sale in the Future Completion State with an ecological conditionality. Thus, the housing, the building permit was filed before December 1, 2012, must be certified RT 2005 BBC, while other goods are required to be RT 2012.

  97. law Duflot
    This article is very good. Thank you very much.
    http://www.ehpad-fr.org/ehpad-lyon/

  98. titla
    his article is very good. Thank you very much.
    http://ehpad-fr.org/ehpad-pris

  99. thy
    This is for the older persons
    http://ehpad-fr.org

  100. Minneapolis
    thanks for nice share! hope to see more update on your blog.

  101. Canh
    How can we get these things work out for the same cases on http://iwinx.vn

  102. Richard101 says:

    Nice blog!

    Kind regards

    ________________________

    Übersetzungsbüro Berlin