As the Standing Committee on Canadian Heritage continues its study on Bill C-10, it has also received some notable submissions from organizations and experts that raise further questions about the wisdom of the bill. One submission not yet posted (but provided to me with the consent to post) comes from Philip Palmer, former Senior General Counsel with the Department of Justice focused on communications law. Palmer spent decades in government focused on telecommunications and competition law issues. His expert opinion is that Bill C-10 is unconstitutional since on-demand streaming services such as Netflix are not inter-provincial undertakings and therefore are not subject to the federal government’s jurisdiction over broadcasters.
Post Tagged with: "constitution"
The government’s omnibus budget implementation bill (Bill C-59) has attracted attention for its inclusion of copyright term extension for sound recordings and the retroactive changes to the Access to Information Act. Another legislative reform buried within the bill is a significant change to PIPEDA, Canada’s private sector privacy law. The bill adds a new Schedule 4 to PIPEDA, which allows the government to specify organizations in the schedule to which PIPEDA applies. Bill C-59 immediately adds one organization: the World Anti-Doping Agency (WADA), which is based in Montreal.
The change to PIPEDA is designed to address European criticism that WADA is not subject to privacy laws that meet the adequacy standard under EU law. WADA is currently subject to Quebec’s private sector privacy law, which meets the “substantial similarity” standard under Canadian law, but has not received an adequacy finding from Europe. In June 2014, the EU Working Party that examines these issues released an opinion that raised several concerns with the provincial law. The goal of the criticism appears to be to deem Montreal unfit to host WADA and transfer its offices to Europe. The Canadian government wants to stop the privacy criticisms by deeming PIPEDA applicable to WADA. Since PIPEDA has received an adequacy finding, presumably the hope is that the legislative change will address the European concerns.
The Colombian Constitutional court has struck down several copyright provisions on constitutionality grounds, including the country’s new anti-circumvention (digital lock) rules.
The Supreme Court of Canada yesterday granted leave for what could be the most important privacy case in years as it addresses “whether the Personal Information Protection Act [Alberta’s private sector privacy law] is contrary to s.2(b) of the Charter and if so, whether it constitutes a reasonable limit in […]
The Department of Justice’s take on the constitutional concerns has long been the subject of speculation, yet the legal opinion is protected by solicitor-client privilege. However, late last week I received records from an Industry Canada access to information request that includes the internal departmental analysis of digital lock rules that was prepared in advance of Bill C-32. The document includes a summary of the Department of Justice legal opinion, information on other Justice legal opinions, and details of concerns raised internally by the Competition Bureau (the Competition Bureau concerns will be discussed in a separate post tomorrow). The net result is that the document confirms that there were concerns within Industry Canada and from the Department of Justice about the constitutionality of the digital lock approach. According to Industry Canada’s analysis:
TPMs may raise some concerns under the Canadian Charter of Rights and Freedoms, especially with respect to the freedom of expression entailing the right to access information. For instance, provisions prohibiting the circumvention of DVD regional coding may violate the Charter where the user seeks to access information that is consistent with the rights (s)he may have purchased and where no copyright infringement occurs (N.B. Notwithstanding the potential constitutional invalidity of anti-circumvention provisions re. regional coding, the circumvention may nonetheless be unauthorized and therefore unlawful under applicable contractual terms).
The key source document is a legal opinion dated March 2, 2007, from the Department of Justice on the “assessment of potential Charter risks of prohibiting the act of circumvention of access-control TPMs and the provision of services or sale of devices to circumvent any kind of TPM.” The opinion, which was likely updated for Bill C-11, is described in the Industry Canada summary as follows: