Post Tagged with: "constitution"

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

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.

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September 27, 2011 110 comments News

Alberta Court Declares Portions of Provincial Privacy Law Unconstitutional

David Fraser reports that the Alberta Court of Queen’s Bench has ruled that portions of the Personal Information Protection Act (Alberta) are unconstitutional. The Court found that the law violates freedom of expression under Section 2(b) of the Charter and these provisions cannot be justified by Section 1 of the […]

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September 7, 2011 Comments are Disabled Must Reads

State Farm Challenges Constitutionality of Canadian Privacy Law

Later this month, the Federal Court of Canada will hear a case in Halifax that threatens Canada's privacy law framework.  State Farm Mutual Automobile Insurance Co. is contesting the constitutional validity of Canada's private sector privacy legislation (PIPEDA), arguing it oversteps the federal government's jurisdictional power.  My weekly technology law column (Toronto Star version, homepage version) argues that if successful, PIPEDA would no longer apply to thousands of Canadian businesses and new legislation such as the Electronic Commerce Protection Act (ECPA) would be imperilled.

The case stems from a dispute over an insurance claim arising from a March 2005 automobile accident. Gerald Gaudet, the injured party, asked State Farm to provide copies of all names, addresses, and phone numbers of anyone to whom it disclosed his personal information (State Farm had used a private investigator to conduct surveillance on Gaudet).  After State Farm refused to disclose the information, Gaudet filed a complaint with the Privacy Commissioner of Canada.

The Privacy Commissioner proceeded to launch an investigation into the case, asking State Farm to provide it with the requested information. The insurance company again refused, leading to the Federal Court case.

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April 5, 2010 6 comments Columns

State Farm Challenges Constitutionality of Canadian Privacy Law

Appeared in the Toronto Star on April 5, 2010 as State Farm Challenges Canada's Privacy Law in Court Later this month, the Federal Court of Canada will hear a case in Halifax that threatens Canada's privacy law framework.  State Farm Mutual Automobile Insurance Co. is contesting the constitutional validity of […]

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April 5, 2010 Comments are Disabled Columns Archive

Lessig and Goldsmith on ACTA’s Constitutional Concerns

Professors Larry Lessig and Jack Goldsmith published an op-ed in the Washington Post explaining why ACTA raises serious constitutional concerns in the United States.

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March 26, 2010 1 comment Must Reads