Constitutional Jurisdiction Over Paracopyright Laws

• Author: Jeremy F. deBeer
• Pages: 89-124

Constitutional Jurisdiction Over

Jeremy

F.

deBeer*

A.

INTRODUCTION

In

response

to

evolving

social,

technological, economic,

and

cultural envi-

ronments,

the

Government

of

Canada

has

been engaged

in a

decades-long

overhaul

of

copyright law.

In the

reform process,

the

need

to

balance

the

rights

and

interests

of all

stakeholders

is

obvious. Some aspects

of

copy-

right

reform, however,

are

less obvious.

As

copyright expands incremen-

tally

we

risk moving away

from

core organizing principles

that

underpin

the

system.

Not

only

is

this

unwise

from

a

policy perspective,

it is

quite

possibly unconstitutional.

The

purpose

of

this

paper

is to

determine whether Parliament

is

constitu-

tionally competent

to

enact

new

laws

in

respect

of

technological protection

measures

(TPMs)

and/or rights management information

(RMI)

systems

for

digital materials.

In

this

context, digital materials include mainly

pop

cul-

ture products such

as

music, movies, books,

games,

and

software, whether

in

electronic

form

or

encoded

on

CDs,

DVDs,

or

other tangible media.

Law

protecting

the

technological

and

informational tools

that

protect

these

digital materials

are

sometimes called

"paracopyright"1

provisions because

The

Author wishes

to

thank

the

University

of

Ottawa

and the

Faculty

of Law

for

funding

this

research through

an

Initiation

of

Research-New

Direction

Re-

search Grant,

and

Daphne Gilbert, Stewart

Elgie,

Ian

Kerr,

Jane Bailey, Jennifer

Chandler, Michael

Geist,

Guy

Regimbald,

and an

anonymous peer

for

their

89

Paracopyright Laws

FOUR

90 IN THE

PUBLIC

INTEREST:

THE

FUTURE

OF

CANADIAN COPYRIGHT

LAW

they introduce

a new

layer

of

legal protection, above

those

already

afforded

by

traditional

copyrights

and

technological measures themselves.

The

Constitution

Act,

1867 gives Parliament

the

authority

to

legislate

among other things,

in

respect

of

"Copyrights."2

Until now,

it

seems

to

have been taken

for

granted

that

the

federal Government

can and

will

include paracopyright provisions

in

amendments

to the

Copyright

Act3

through

Bill

C-6o,

An Act to

Amend

the

Copyright

Act,4

and do so

pursu-

ant to its

jurisdiction under

the

Copyrights clause.

But the

Constitution

also empowers

the

Provinces

to

make laws

in

respect

of

Property

and

Civil

Rights.5

Although paracopyright provisions

are in a way

connected

to

copyrights, they simultaneously implicate issues typically reserved

for

provincial legislators, such

as

contractual obligations, consumer protec-

tion,

e-commerce,

and the

regulation

of

classic property.

It

is

tempting

to

suggest

that

the

easy solution

to the

constitutional

dilemma

is to

prohibit circumvention and/or tampering only

for the

pur-

pose

of

infringing copyrights. Since

this

is

just what

the

Government

in-

tends

to do, one

might argue that there

is no

real constitutional issue here.

That,

however, would underestimate

the

nature

of the

problem.

The key

issue

is not

whether

the

provisions

reflect

the

scope

of the

Copyright

Act

in its

present

form,

but

whether they

are in

pith

and

substance

a

mat-

helpful

comments

on my

ideas,

and

Scott

Lucyk

and

Barry

Steinman

for

their

outstanding assistance with this paper.

See

for

example

David

Nimmer, "Puzzles

of the

Digital Millennium Copyright

Act"

(1998-1999)

46 J.

Copyr

Soc'y

U.S.A.

401 at

405; Michael

J.

Remington,

"The

Ever-Whirling

Cycle

of

Change: Copyright

and

Cyberspace" (2002)

3:2 N. C

J. L. &

Tech.

213 at

238-241;

Dan L.

Burk, "Anti-Circumvention Misuse," (2003)

50

UCLA

L.

Rev. 1095;

Kimberlee

Weatherall,

"On

Technology

Locks

and the

Proper

Scope

of

Digital Copyright

Laws

—

Sony

in the

High Court" (2004) 26:4

Sydney

L.

Rev.

613 at

615. Peter Jaszi

has

also used

the

terms

"pseudocopyright"

and

"metacopyright"

to

describe similarly

new

rights:

see

Peter Jaszi,

"Is

This

the End of

Copyright

as We

Know It?" Address

to

Nordinfo Conference, 9-10

October

1997,

in

Stockholm, Sweden; Nordiskt Forum

for

bibliotekschefer

58-67

(NORDINFO

1998).

Constitution

Act, 1867,

_

e.html#distribution>,

s.

91(23).

Copyright

Act,

R.S.C.

1985,

c.

0-42,

.

ca/en/C-42/index.

htmlx

First

Reading,

20

June 2005,

/

bills/government/C-6o/C-6o_i/C-6o_cover-E.html>.

Constitution

Act, 1867, above note

2,

s.

92(13).

i

2

3

4

5

ter of

"Copyrights" under

the

Constitution Act,

1867.6

The

provisions'

strict

legal operation

is

only

one of

several considerations; their true purpose

and

practical

effects

are

also determinative

of

constitutional validity.

In

pith

and

substance,

the

true

character

of the

proposed provisions

is

actu-

ally very

different

from

traditional copyright legislation.

Moreover,

it is

unwise

to

focus

solely

on

Parliament's ability

to

legislate

on

this

matter.

Attention must

be

paid

to the

provinces' role

in the

copyright reform pro-

cess,

which thus

far has

been largely overlooked.

Therefore,

this

paper

first

characterizes

the

pith

and

substance

of the

relevant provisions

by

examining

their

purpose

and

legal

and

practical

ef-

fects.

It

then considers whether they

fall

within

the

scope

of

Parliament's

authority under

the

Copyrights clause,

or are

more accurately regarded

as a

matter

of

Property

and

Civil Rights.

It

also queries whether

paracopyright

provisions

fall

under other heads

of

power, such

as

Trade

and

Commerce,

Criminal

Law,

or the

Peace,

Order,

and

Good

Government

of

Canada.

The

analysis leads

to

three main conclusions. First, provisions

that

at-

tempt

to

trace

the

scope

of

existing copyright rules

are not

invulnerable.

For

reasons discussed

in

this paper,

the

mere inclusion

of the

phrase "for

infringing purposes"

may not be

sufficient

for

constitutional purposes.

As

is,

the

proposed legislation

may

creep

too far

into

the

provincial domain

to be

salvaged

as

ancillary

to an

overall valid copyright scheme.

It is

argu-

able

that

this

is a

colourable attempt

to

expand

the

boundaries

of

Copy-

rights

further

into

Property

and

Civil Rights.

The

second theme

in

this

paper

is

that

if the

federal

government

is

con-

stitutionally competent

to

enact legislation

on the

subject

of

TPMs

and

RMI,

it

must

exercise

restraint

in

doing

so. The

Constitution

at

least

re-

quires

the

Government

to

resist pressure

to

widen

the

proposed provi-

sions. Similarly, courts must

be

cautious when interpreting

Bill

C-6o

if

and

when

it

becomes law.

The

broader

the

provisions,

the

further

they

stray

from

federal

jurisdiction,

the

more they trench into provincial pow-

ers,

and the

more suspect they become.

In

any

event,

the

Government's

intention

to

press forward

with

Bill

C-6o

does

not

necessarily preclude

the

provinces

from

enacting legisla-

I

am not

suggesting here

that

any or all of the

existing

Copyright

Act is

consti-

tutionally invalid,

but its

status ought

not be

taken

for

granted.

There

is

little

judicial

authority

on

point.

See

David

Vaver,

Copyright

Law

(Toronto:

Irwin

Law,

2000)

at

19-21;

and

Jeremy

F.

deBeer,

"Copyrights, Federalism

and the

Consti-

tutionality

of

Canada's Private Copying

Levy"

/

papers.cfm?abstract_id=793525>.

Constitutional

Jurisdiction Over

Paracopyright

Laws

91

6

Chapter Four