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

By Crowne-Mohammed, Emir Aly; Rozenszajn, Yonatan | Journal of Information, Law and Technology, September 2009 | Go to article overview

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


Crowne-Mohammed, Emir Aly, Rozenszajn, Yonatan, Journal of Information, Law and Technology


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.