Virgil Cojocaru is a JD candidate at Osgoode Hall Law School.
Professor Emir Aly Crowne-Mohammed and Yonatan Rozenszajn argue in their article, DRM Roll Please: Is Digital Rights Management Legislation Unconstitutional in Canada? that the Digital Rights Management (DRM) Provisions in Bill C-61 are ultra vires (Latin for “beyond the powers”) of Parliament’s power under the Constitution Act. Bill C-61 was Canada’s most recent attempt to implement the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
A similar analysis was also conducted for Bill C-60, when there was a real possibility it would become law (see Professor Jeremy DeBeer’s Constitutional Jurisdiction Over Paracopyright Laws). Both Bill C-61 and C-60 included DRM provisions. They both grant a civil cause of action to a rights holder. If one wants a thorough understanding of this subject, they should read both articles.
DRM is a regime enforced by technological protection measures (TPMs). Briefly speaking, there are three main types. Access controls, copy controls, and anti-device measures. Access controls prompt a user for a password or even a specific encryption key before allowing access to the content. Copy controls, as the name implies, prevent a user from copying digital signals. Lastly, anti device measures tie a digital work to a certain device, the most common example being a DVD to its player. Rights owners can place all or some of these measures on a particular digital work.
Professor Crowne-Mohammed and Rozenszajn argue Bill C-61 goes over the threshold of what is necessary in achieving the standards set out in the WCT and WPPT. Perhaps, if Parliament had adhered to the standards of the treaties to only provide legal protection, instead of requiring the protection of technological measures to be incorporated into the Copyright Act, Parliament’s attempt would not be ultra vires. One should not assume that TPMs should be placed in the Copyright Act. They could be addressed in other areas of the law.
Professor Crowne-Mohammed and Rozenszajn also suggest that the effects of this implementation would be quite drastic. First, this new right to control access under Bill C-61 places copyright in the realm of contracts, and thus under one of the provincial heads of power. Although section 91(23) of the Constitution Act, 1867 gives Parliament the power to legislate in regards to copyrights, section 41.1 in Bill C-61 deals with contracts, and thus the right to a civil cause of action, upon a breach. However, this seems to come under the purview of the provinces under section 92(13) of the Constitution Act, which deals with contracts and civil rights. Even so, Professor Jeremy DeBeer states that the provincial and federal heads of power are not held to be watertight, and they do overlap on complex issues. This suggests that amendments or provisions such as section 41.1 can stand if sufficiently integrated into valid federal legislation (such as the Copyright Act), despite going into the province’s domain.
Professor Crowne-Mohammed and Rozenszajn address this argument by considering two more issues. First, is section 41.1 in Bill C-61 part of an overall valid federal legislative scheme? Second, is it sufficiently integrated into that legislation? The answer to the former question is yes, Bill C-61 and its provisions were meant to be an amendment to the Copyright Act. However, the DRM provisions, such as section 41.1 in Bill C-61 are not integrated enough because they are triggered by a contractual breach; not a copyright infringement. Due to this feature, the fair dealing provisions do not apply to DRMs. Yet, in CCH, the Supreme Court of Canada, through its consideration of fair dealing factors such as purpose, character, amount, alternatives, nature, and effect of the dealing on the work, made it clear that the principle of ‘fair’ dealing is a critical component of Canadian copyright law. Furthermore, DRM measures could be placed on works that would not fall under the purview of copyright, due to their lack of originality. Hence, Professor Crowne-Mohammed and Rozenszajn conclude that Bill C-61 does not contain fair dealing “limitations or exceptions” and provisions such as section 41.1 are not integrated in the Copyright Act and are are ultra vires of Parliament’s legislative powers.
In summary, the DRM provisions fall under provincial powers. They could be saved if they were sufficiently integrated in the Copyright Act, but their operation upon contractual breach (and hence removal of fair dealing considerations) makes integration with the Copyright Act unlikely.