DRM Roll Please: Is Digital Rights Management Legislation Unconstitutional in Canada?

Article excerpt

1. Introduction

Copyright law has become increasingly meaningful to the lives of ordinary citizens. It has also become an intensely heated political affair as Canada implements the WIPO Copyright Treat (1) ('WCT') and the WIPO Performances and Phonograms Treaty (2) ('WPPT'). There have been two failed attempts at ratifying these conventions. The first attempt was Bill C-60 (3), introduced by Paul Martin's Liberal Government in 2005, which died on the order paper when a motion of non confidence was passed, and an election was called. Three years later, Stephen Harper's Conservative Government made a similar attempt in Bill C-61 (4), only to see it die on the order paper a few months later when the Governor General prorogued Parliament.

Indeed, the personal is the political; and a controversial aspect of both Bills were the provisions relating to Digital Rights Management ('DRM') technologies (a full description of which is provided for in section 2 of this article). Section 34.02(1) of Bill C-60 purported to grant a civil cause of action to a rights holder against anyone who circumvented a technological measure that protected a work (if the purpose of that circumvention was for the purpose of copyright infringement (5)). (6) Section 34.02(2) of Bill C-60 also created a civil cause of action against persons who provided a service to circumvent, remove or render ineffective a technological measure where they knew (or ought to have known) that such means would have resulted in copyright infringement. (7)

Section 41.1 of Bill C-61 contained a more detailed provision. (8) It would have prohibited the descrambling of a scrambled work, decryption of an encrypted work or otherwise the avoidance, bypassing, removal, or deactivation of a technological measure, for any purpose except in very limited situations (like national security, computer interoperability, computer security, encryption research and persons with perceptual disabilities).

The introduction of Bill C-61 drew widespread protests (Nowak, 2008) from consumers and academics alike who decried the Bill as a Canadian version of the U. S. Digital Millennium Copyright Act ('DMCA') (9). Bill C-61 died on the order paper when an election was called when the Governor General prorogued Parliament a few months after its introduction. After the election, Harper's (second) Conservative government expressed a desire to reintroduce the former Bill C61, perhaps with some improvements. (10) Given the DRM provisions of Bill C-60 and Bill C-61, and Canada's international obligations under the WCT and WPPT, we can safely assume that DRM protections (and remedies for breaches thereof) will feature prominently in any future Bill.

The policy implications of DRM have been extensively discussed in the literature (Bechtold, 2003, pp. 597-654; de Beer, 2005; Cameron and Tomkowickz, 2007; Kerr, 2002; Armstrong, 2006). However, less attention has been paid to the constitutional dimensions of DRM legislation. Jeremy de Beer (2005) examined the constitutionality of Bill C-60's DRM provisions, concluding that it was doubtful that Parliament had the constitutional authority to legislate in that regard. This paper will build upon de Beer's (2005) analysis by comparing Bill C-61's provisions with Bill C60's. The authors argue that the broad language of Bill C-61 squarely places the DRM provisions outside of Parliament's enumerated powers and into the Provinces' Property and Civil Rights jurisdiction. Future incarnations of Bill C-61 that do not take the fair dealing provisions of the Copyright Act (and the overall scheme of the Act) into account, ought to be rendered ultra vices for intruding into the Provincial legislative sphere. The authors argue that the DRM provisions of Bill C-61 represent 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. …