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

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Tuesday September 27, 2011
Last week's behind the scenes of Bill C-32 post focused on the Ministerial Q & A prepared for the joint appearance of Canadian Heritage Minister James Moore and then-Industry Minister Tony Clement. With the next copyright bill coming very soon - possibly this week - today I am posting the more detailed clause-by-clause document [118 MB PDF] provided to the Ministers that reviews every provision in the bill, explains it rationale, and identifies changes to the current law.

There are few surprises here as the document provides a helpful analysis of the bill from the government's perspective. The exhaustive review provides a striking reminder that the government is extending liability under the Copyright Act for activities that may not even infringe copyright, thereby raising questions about the constitutionality of some provisions. This is the result of the digital lock rules, which necessitated a change in the infringement provision. The rationale notes (page 708):

The Bill introduces new causes of action (such as those relating to TPMs and RMIs) that could be used in civil lawsuits regardless of whether or not there has been an infringement of copyright.

The discussion on the digital lock provisions also emphasize that the defences to copyright infringement are not available for circumvention of a digital lock (page 718):

Generally, an owner of copyright in a work or other subject matter for which this prohibition has been contrevened has the same remedies as if this were an infringement of copyright (proposed s.41(2)). However, a contravention of this prohibition is not an infringement of copyright and the defences to infringement of copyright are not defences to these prohibitions.

The government's own words on the digital lock provision confirm that they may be unconstitutional since they fall outside the boundaries of copyright.

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.
Comments (116)add comment

Stew said:

...
When might the new copyright actually become law?
September 27, 2011

Mark said:

...
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.
September 27, 2011

T said:

...
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?
September 27, 2011

davegravy said:

@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.

September 27, 2011

davegravy said:

@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."
September 27, 2011

end user said:

...
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.


September 27, 2011

Graham J said:

...
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.
September 27, 2011

sohbet odalari said:

September 27, 2011

DRM has no term limits said:

...
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?
September 27, 2011

Napalm said:

The right to read
It's all about this:

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

Nap.
September 27, 2011

Mwaahahaha said:

...
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.
September 27, 2011

Byte said:

@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.
September 27, 2011

Napalm said:

...
@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/C...7_monopoly

These days we're just perfecting it.

Nap.
September 27, 2011

Stephan Wehner said:

...
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.
September 27, 2011

Mark said:

...
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.
September 27, 2011

Mark said:

...
D'oh! Typo in the above... I meant absolutely no prohibition on tools that might be used to circumvent digital locks.
September 27, 2011

Byte said:

...
@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.
September 27, 2011

Napalm said:

...
@Byte:

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

Nap.
September 27, 2011

Crockett said:

...
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.
September 27, 2011

Watching said:

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.
September 27, 2011

R. Bassett Jr. said:

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?
September 27, 2011

end user said:

Acta to be signed on Saturday
Ummm not one news organization has reported on this http://arstechnica.com/tech-po...turday.ars
September 28, 2011

Alex said:

...
Provincial elections are about a week away.
If you want to send the PC party a message, vote against them.
September 28, 2011

Alex said:

...
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.
September 28, 2011

maebnoom said:

...
Even more reason to pirate stuff.
September 28, 2011

Mark said:

...
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).
September 28, 2011

Byte said:

@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.




September 28, 2011

freedom said:

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
September 30, 2011

freedom said:

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