Study Finds Canadian C-61 Anti-Circumvention Provisions Unconstitutional

A new academic 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, concludes 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. Future iterations of Bill C-61 that do not take the fair dealing provisions of the Copyright Act (and the overall scheme of the Act) into account would also likely to fail constitutional scrutiny."


  1. pat donovan says:

    and how many bills this month have had the ‘not withstanding ‘ clause used?

    free speech ONLY when it suits them..


  2. Nice… however…
    Let’s get ready for another wave of “Canada is a piracy haven” talk by the IPAA, the CRIA and other lobby groups

  3. Anthony Hemond says:

    “3 strikes you’re out”: Unconstitutional?
    We have the same remark about a “3 strikes you’re out” scheme. In fact, we believe that this type of provision is unconstitutional. This was developed in our submission to Heritage Canada (see “Riposte Graduée at:

  4. chris ferguson says:

    @grunt –> Notwithstanding clause
    There is no notwithstanding clause with respect to the division of powers between the federal and provisional legislatures. So, if an anti-circumvention provision is not in pith and substance “copyright” but rather is the regulation of property and contracts, then the federal government has no authority to enact the provision. Parliament could do nothing (legally) about it.

  5. @Anthony Hemond
    Nice read… however, P2P software are not only used for downloading, some are used for voice communications (exemple: Skype).

  6. If this is corerct, the Parliament can’t ban contractual preemption of fair dealing.

  7. It’s about time the constitutional arguments started to play a role here. What’s sad is we have wing nuts in Ottawa who at one point fought for our constitutional rights in the 60’s and 70’s during their young days, and than once in the position of power they are willing to throw a lot of those rights (and hard work) away for political contributions, leaving their kids to fight off the same type of control over freedom of expression, freedom of speech, freedom of choice etc.

    It’s nice to see though that the academic community stepping in over this battle and really putting serious questions out there with respect to positions governments and lobby groups have taken. There are some things in society that shouldn’t be sold, our rights as a free society being one of them. I’m very interested to see how our new copyright bill will shape up. If a balance is what Moore and Clement is seeking, than constitutional rights will be put at jeopardy. What the next bill should be focused on what law can do around the constitution and what society deems as acceptable rather than a balancing act between the rights of contractual parties, and a free society. Considering the world learned from WW2, and the out spoken baby boomers in the 60’s and 70’s one would figure logic on this issue would set in. It’s unfortunate that the children of the 60’s who fought so hard to make a better life for their children, are now throwing a lot of that away for political contributions, and putting that fight on to the generations they sought to protect. That’s not only sad, but rather pathetic, and a betrayal of the principles many who are in Ottawa now fought for back then.

  8. chris ferguson says:

    @Bob Morris

    Good point. I don’t think that’s such a bad thing though: Consider that online movie rentals would not be possible without limiting fair dealing (assuming that private copying is fair). A large part of the purpose of fair dealing is to allow copying where it would be impractical/too costly to negotiate with the rights owner. To put it another way, fair dealing to a large extent protects those who have no relationship with the rights owner.

    Maybe the fair dealing exception should take into account the manner in which the copier gained control of the work. That is, it should consider how the copier acquired their first copy. This is why the 4th factor of American fair use (market impairment) should be given more weight in Canada. Turning back to the rental example: permanent private copying of an online rental would substantially impair the market for online purchases, and would thus be unfair. Private copying of a purchased copy, however, won’t impair the market for that work since the buyer has assumed almost perfect personal control of the work and has no reason to purchase greater rights.

    Does the sale of copyrighted material already fall under the sale of goods act?

  9. Glen Merrick says:

    Does the sale of copyrighted material already fall under the sale of goods act?
    Yes it does. I presume when I purchase a cd/dvd containing a game/movie/music that I own a copy of that material. I am not licensing it, borrowing it, renting it, leasing it, or otherwise limiting my ownership of that which I purchased. It is only after I open the box, and see the stupid clickwrap that companies try and limit my rights.

    When I purchase an item, it is mine to do with as I please. whether to make backup copies, so my kids don’t scratch those once in a decade Disney purchases (idiots), or to ensure that my original copies of my games don’t get scratched up because I have to have them in the blasted dvd drive when I play them because of authentication.

    If I choose to rip a CD that I purchased so one of my kids can listen to the tracks on their mp3 player, it is not anyone’s business except my own that I do so. I have no obligation to go out and purchase yet another copy of that same track simply so I can put it on their mp3 player. I will however should I choose to purchase an mp3 from an online store, treat it like any other purchase I make. I will back it up and if my kids want to listen to it somewhere else, I will let them.

    Why? Because I bought it and I own that little piece of digital information. I did not borrow, rent, license (regardless of what they say) that small chunk of data.

    If the EULA is that enforceable, why then does the Canadian Government not force companies to print the EULA in a readable format (without magnification) on the outside of the box, where I can read it before I purchase it.

  10. Superimposed punishments
    A great paper on DRM legislation!! It covers everything, from DRM’s 100% technological failure (DRM’s true uses/abuses) to privacy rights.

    From the paper:
    “DRM legislation is concerned with the regulation of personal property to prevent or achieve certain aims, some of which may correspond with the Copyright Act’s objectives, while others may not.”

    The certain aims are also from the paper:

    “DRM becomes particularly important as entertainment and media industries move away from the purchase-to-ownership business model towards a fee-for-service or time limited rental distribution business model. Even non-media industries such as software manufacturers are moving in the fee-for-service direction. Adobe, for example, has come out with a DRM system for Flash videos that will enable it to support user tied time-limited content licensing (Rosenblatt, 2008a).”

    DRM legislation is an abuse of the Copyright Act as guises to achieve these objectives, from old oligopoly (price fixing and confined product selection) business model to new pay-per-view, “fee-for-service or time limited rental distribution” business model. Moreover, “DRM legislation will also affect users’ privacy, by binding them to a contract or a technological scheme that would otherwise have violated privacy laws.”

    How many times must a copyright infringer be punished? The Copyright Act already has punishments for copyright infringers, but DRM legislation will add another layer of punishments on top of the Copyright Act’s. What next, an anti-anti-circumvention legislation to punish people who break anti-circumvention law to break DRMs to infringe copyright?

    Anti-Anti-Anti-Anti-Circumvention Law

  11. Laurel L. Russwurm says:

    the problem is that copyright has been so perverted that copyright owners are now only rarely the actual creators of the IP
    @Glen Merrick – you are SO right: and what an awesome idea… big letters on the outside of the box.

    Licensing is BS. Corporations– who can pay lawyers as part of the cost of doing business– license IP. It is a good deal for them because they are licensing stuff in the expectation that they are going to MAKE MONEY.

    Consumers buy things for personal use. We do NOT expect to make money. We’re consumers. We don’t have lawyers. We don’t read licensing agreements we just click on them to make them go away so we can use the game, watch the movie etc.

    Our GOVERNMENT is supposed to look out for Canadian interests. They sure don’t seem to look out for Canadian consumers.

    Seems they aren’t even very well acquainted with our constitution either.

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