My colleague Jeremy deBeer has published an article on the constitutional challenges posed by the intellectual property provisions in the Canada – EU Trade Agreement.
Post Tagged with: "constitution"
While a federal e-commerce law may have been preferable, the constitutional division of powers meant that it fell to the provinces to enact those laws.
The provinces took the lead on e-commerce legislation in the late 1990s, but over the past decade it has been the federal government that has led on most other digital rules, including privacy legislation, the anti-spam statute, and proposed digital copyright reform. Those efforts are now in constitutional limbo following the Supreme Court of Canada’s recent ruling that plans to create a single securities regulator are unconstitutional.
The December securities regulator decision concluded that the national approach to securities regulation stretches the federal trade and commerce clause too far into provincial jurisdiction. The court ruled that most of the securities regulatory activities deal with day-to-day contractual regulation within the provinces and that “these matters remain essentially provincial concerns falling within property and civil rights in the provinces and are not related to trade as a whole.”
My weekly technology law column (Toronto Star version, homepage version) notes the repercussions of that decision may be felt far beyond just securities regulation. For example, federal privacy law may now be particularly vulnerable to challenge since it relies on the same trade and commerce provision.
Appeared in the Toronto Star on January 8, 2012 as Are Canada’s Digital Laws Unconstitutional? One of the first Canadian digital-era laws was the Uniform Electronic Commerce Act, a model law created by the Uniform Law Conference of Canada in the late 1990s. The ULCC brings together officials from federal, […]
The Supreme Court of Canada this morning ruled that the federal government’s plan to create a single securities regulator is unconstitutional since it stretches the federal trade and commerce clause too far into provincial jurisdiction. The ruling is a wake-up call on the limits of federal powers, even where many […]
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.