The House of Commons may have passed Bill C-11, but the constitutional concerns with the copyright bill and its digital lock rules will likely linger for years. Many experts believe that the government’s decision to adopt one of the most restrictive digital lock approaches in the world – it creates potential liability without actual copyright infringement – renders the provision vulnerable to constitutional challenge.

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:

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