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

Tuesday September 27, 2011

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.

The constitutionality of digital lock legislation has been examined in two articles by Canadian law professors. Both conclude that the provisions are constitutionally suspect if they do not contain a clear link to conventional copyright law. Their reasoning is that the constitution grants jurisdiction over copyright to the federal government, but jurisdiction over property rights is a provincial matter. Digital lock legislation that is consistent with existing copyright law - ie. one that factors in existing exceptions - is more clearly a matter of copyright.  The C-32 provisions are arguably far more about property rights since the provisions may be contained in the Copyright Act, but they are focused primarily on the rights associated with personal property and expressly exclude copyright defences.

My colleague Jeremy deBeer conducted a detailed analysis of this issue in his article, Constitutional Jurisdiction over Paracopyright Laws. Many of his arguments were echoed in a 2009 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, which concluded 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."

The government's own analysis appears to confirm the constitutional concerns as it points to reforms that expressly create liability even in the absence of copyright infringement. The solution is an easy one - by linking circumvention to actual copyright infringement (as education, consumer groups, and technology companies have advocated), the bill would more readily withstand a constitutional challenge.

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