Copyrights, federalism, and the constitutionality of Canada's private copying levy.

• Author: de Beer, Jeremy F.

This paper explores the scope of Parliament's authority under the copyrights clause of the Canadian constitution. Particular consideration is given to the overlap between copyrights, which are within federal jurisdiction, and property and civil rights, which are the legislative domain of the provinces. As a concrete example, this paper assesses the constitutionality of Canada's private copying levy. Because the levy has been interpreted very broadly, it is arguably in pith and substance a matter of property and civil rights. Significant reinterpretation could narrow the scope of the levy and bring it within federal jurisdiction over copyrights. Otherwise, the levy may not be sufficiently integrated with an overall valid scheme to withstand scrutiny. More generally, this paper concludes that Canada's copyrights clause does not give Parliament carte blanche to enact cultural, economic, technological, or regulatory policies under the auspices of the Copyright Act. Copyrights legislation must remain tightly linked to authors' cultural creativity, and not unduly compromise matters of property and civil rights.

Cet article explore la portee de l'autorite parlementaire en ce qui a trait a la notion de droit d'auteur telle que defraie par la Constitution canadienne. L'article se penche plus particulierement sur les notions entre chevauchees de droit d'auteur, droit qui releve de la competence federale, et les notions de propriete et droits civils, qui eux relevent de la competence legislative provinciale. L'article examine un exemple concret : la constitutionalite de la redevance sur la copie pour usage prive. Cette redevance ayant beneficie d'une interpretation tres large, il est possible de soutenir que son caractere veritable releve d'une question de propriete et de droits civils. Une reinterpretation approfondie de cette notion peut neanmoins reduire l'etendue de la redevance, ce qui la ramenerait dans le cadre de competence de l' exercice federale en matiere de droit d'auteur. La redevance ne serait sinon suffisamment integree dans un exercice valide de competence pour defier tout examen en son encontre. Plus generalement, l'auteur arrive a la conclusion que la disposition visant le droit d'auteur ne defere pas au Parlement une carte blanche en ce qui est de decreter des politiques culturelles, economiques, et technologiques ou soit encore des mesures de reglement dans le cadre de la loi sur le droit d'auteur. La loi sur le droit d'auteur doit rester etroitement liee a la creativite culturelle des auteurs et ne doit pas indument compromettre des matieres de propriete et de droits civils.

Introduction I. Scope of Jurisdiction over Copyrights A. Jurisprudential Vacuum B. Interpreting Canada's Copyrights Clause C. Copyrights & Trenching II. Canada's Private Copying Levy A. Purpose B. Effect C. Summary III. Other Federal Powers A. Peace, Order, and Good Government B. Trade and Commerce C. Taxation Conclusion Introduction

Copyright law is evolving in response to changing social values, new modes of expression, economic circumstances, consumer demands, and technological innovations. The Canadian Copyright Act (1) is being amended and reamended with increasing frequency. (2) Though incremental tweaking of copyright legislation is sometimes necessary or desirable, incrementalism has a drawback. (3) Bit by bit, it can pull us away from the core values and organizing principles underlying copyright. Eventually, we can find ourselves in a position quite different from where we started.

Relatively recent and dramatic shifts in copyright law and policy have brought this issue to the surface. In the last decade especially, the nature and scope of copyright protection has exploded. Parliament has expanded the Copyright Act to envelop new parties, and has granted new powers and privileges to existing right-sholders. Canada is now on the verge of implementing two international treaties to further expand the boundaries of copyright. (4) Even newer treaties are being negotiated and may soon need to be incorporated into our domestic law. (5)

Not much thought has been given to (or at least not much has been written or litigated about) the constitutional division of legislative powers when it comes to making new copyright laws. Although the Supreme Court has commented numerous times in the past few years about various copyright issues, (6) it has recently refused to consider copyright's constitutional implications. (7) This paper looks at whether and how copyright is permitted to evolve within the limits of subsection 91(23) of the Constitution Act, 1867, (8) Canada's "Copyrights" clause.

The constitutional limits on Parliament's powers have an impact upon a range of controversial issues in modern copyright law. (9) Questions exist as to the constitutionality of the "neighbouring" rights of performers, record makers and broadcasters, (10) the moral rights granted to various creators, (11) and also "paracopyright" provisions addressing technological protection measures and rights management information. (12)

In a nutshell, here is the problem. The constitution grants Parliament, as opposed to provincial legislatures, authority to enact laws in respect of copyrights. But this authority is not unlimited. Suppose, hypothetically, that the federal government decides it is desirable that authors, performers, and record makers be permitted to smoke marijuana. Imagine, for the sake of argument, that there was empirical evidence (of the sort that justifies copyright law generally) to demonstrate that being stoned encourages creativity. Parliament cannot simply enact a new section in the Copyright Act granting music creators the right to smoke dope and requiring bong manufacturers to supply it. Calling that a copyright would not make it so, at least not for constitutional purposes. Moreover, the constitution grants provinces the power to legislate in respect of property and civil rights. Although the federal government may enact copyright legislation that incidentally affects property and civil rights, it cannot enact laws that, in pith and substance, deal with matters of property and civil rights.

As a concrete example of the scope of the copyrights clause, this article looks at the constitutional validity of Canada's private copying levy as presently interpreted. (13) Upon consideration, the private copying levy lies close to the borderline between these two heads of power. The crux of the problem is that the scheme has been interpreted very broadly to affect mainly persons who have little or nothing to do with copying music. If it is to be saved, some interpretative wizardry may be needed.

This article's more general conclusion is that subsection 91(23) is a significant constraint on Parliament's legislative powers. It does not give Parliament carte blanche to implement cultural, economic, technological, or regulatory policies under the auspices of the Copyright Act. The copyrights clause is a part of a living tree that may evolve, but only within its natural limits. In my view, copyrights legislation must remain tightly connected to authors' cultural creativity and must not unduly compromise matters of property or civil rights.

1. Scope of Jurisdiction Over Copyrights

   1. Jurisprudential Vacuum

      The meanings of many provisions in sections 91 and 92 are well settled, but neither the Judicial Committee of the Privy Council nor the Supreme Court of Canada has ever considered the scope of Parliament's jurisdiction over copyrights under subsection 91(23). Nor have they considered the meaning of "Patents of Invention and discovery" in subsection 91(22). (14) The Supreme Court has defined and limited the jurisdiction of Parliament to legislate in respect of trademarks, in MacDonald v. Vapor Canada Ltd., (15) and revisited the constitutionality of trademarks legislation in Kirkbi AG v. Ritvik Holdings (16) Notably, however, trademarks are not an enumerated head of power. Vapor Canada and Kirkbi were really cases about the trade and commerce power. Although these authorities dealt with an intellectual property issue, they are not much more helpful in sorting out the scope of the copyrights clause than cases addressing any other provision regarding the division of constitutional powers.

      Very soon after Confederation, the copyrights clause was considered in Smiles v. Belford. (17) The dispute concerned the effect of subsection 91 (23) on imperial copyright laws in Canada. In the course of addressing this issue, the Ontario Court of Appeal noted that copyrights are a matter for the Parliament of Canada, as distinct from the provincial legislatures. (18) The scope of the federal power vis-a-vis the provinces, however, was not considered.

      More recently, the division of powers issue was mentioned briefly in an attack on the tariff-setting powers of the Copyright Board of Canada. In Society of Composers, Authors and Music Publishers of Canada v. Landmark Cinema of Canada Ltd., (19) the Federal Court, Trial Division responded to the submission that certain provisions were ultra vires Parliament as follows:

      This argument moves directly against long-established jurisprudence which has held that the Copyright Board's power to fix licence fees is not a matter of contract, but of statutory fixation which is ancillary to, if not an essential component of, Parliament's jurisdiction with respect to copyright under s. 91(23) of the Constitution Act, 1867 ... (20) It is unclear from a review of the three authorities the court cited in support of that statement what principle, precisely, is "long-established". Two decisions of the Exchequer Court of Canada can indeed be taken to stand for the proposition that licence fees set by the Copyright Board are statutory, not contractual, in nature. (21) It was asserted in one, and merely echoed in the other, that "[t]he legislation under consideration is clearly legislation on the subject of copyright...." (22)...