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Are the Canadian Digital Lock Rules Unconstitutional?

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The House of Commons may have passed Bill C-11, but the constitutional concerns with the copyright bill and its digital lock rules will likely linger for years. Many experts believe that the government's decision to adopt one of the most restrictive digital lock approaches in the world -- it creates potential liability without actual copyright infringement -- renders the provision vulnerable to constitutional challenge.

The Department of Justice's take on the constitutional concerns has long been the subject of speculation, yet the legal opinion is protected by solicitor-client privilege. However, late last week I received records from an Industry Canada access to information request that includes the internal departmental analysis of digital lock rules that was prepared in advance of Bill C-32. The document includes a summary of the Department of Justice legal opinion, information on other Justice legal opinions, and details of concerns raised internally by the Competition Bureau (the Competition Bureau concerns will be discussed in a separate post tomorrow). The net result is that the document confirms that there were concerns within Industry Canada and from the Department of Justice about the constitutionality of the digital lock approach. According to Industry Canada's analysis:

TPMs may raise some concerns under the Canadian Charter of Rights and Freedoms, especially with respect to the freedom of expression entailing the right to access information. For instance, provisions prohibiting the circumvention of DVD regional coding may violate the Charter where the user seeks to access information that is consistent with the rights (s)he may have purchased and where no copyright infringement occurs (N.B. Notwithstanding the potential constitutional invalidity of anti-circumvention provisions re. regional coding, the circumvention may nonetheless be unauthorized and therefore unlawful under applicable contractual terms).

The key source document is a legal opinion dated March 2, 2007, from the Department of Justice on the "assessment of potential Charter risks of prohibiting the act of circumvention of access-control TPMs and the provision of services or sale of devices to circumvent any kind of TPM." The opinion, which was likely updated for Bill C-11, is described in the Industry Canada summary as follows:

DOJ's opinion overall suggests that legislation prohibiting anti-circumvention acts, devices and services would not be held unconstitutional (either they would not breach the freedom of expression rights or, if they did contravene, would be justified) where they are tied/linked to copyright infringement [emphasis added].

Reserves: May be a problem with Charter if no exception for the perceptually disabled or if too broad so as to capture publication of data (e.g. encryption research data) in an academic context.

The summary suggests that the Department of Justice has raised constitutional concerns with digital lock rules that are not tied or linked to copyright infringement. Now consider what the government said in its clause-by-clause analysis of then Bill C-32, also obtained under Access to Information:

Generally, an owner of copyright in a work or other subject matter for which this prohibition has been contrevened has the same remedies as if this were an infringement of copyright (proposed s.41(2)). However, a contravention of this prohibition is not an infringement of copyright and the defences to infringement of copyright are not defences to these prohibitions.

Bringing together the Department of Justice legal opinion with the government's analysis of its own bill confirms the current digital lock approach is vulnerable to a constitutional challenge.

Moreover, the reference to particular problems with respect to the perceptually disabled is important because though there is an exception, it is ineffective. As the Provincial Resource Centre for the Visually Impaired (PRCVI) British Columbia, which works to assist blind and visually impaired students, argued:

The exception that permits circumvention of technological protection measures (TPMs) and the means to circumvent these measures for the purpose of producing alternate formats (Section 41.16(1)) may be largely nullified by the condition "to not unduly impair the technological protection measure." According to the Canadian Library Association there is no effective technical way to remove the TPMs and to restore them after an alternate format has been created. The TPMs would in all likelihood, interfere with the use of some, if not all, of the adaptive technologies used by students with perceptual disabilities to access educational materials.

If the exception is largely nullified by the "unduly impair" language, a constitutional challenge by groups representing the visually impaired might stand a good chance of success.

Interestingly, the DOJ also raised the question of whether Canada is arguably already compliant with the WIPO Internet treaties without the need for additional legislation:

DOJ notes that some Canadian legislation does prohibit TPM circumvention in certain specific instances. Section 9(1) of the Radiocommunication Act prohibits the unauthorized decoding of encrypted subscription programming signals and network feeds. Section 341.1 and 342.2 of the Criminal Code prohibit, among other things, the fraudulent interception of a function of a computer system.

The summary elsewhere states these "would unlikely be sufficient to meeting international standards", but it acknowledges that the RCMP has used these provisions to prosecute a producer/distributor of circumvention devices used in video game consoles. The Industry Canada summary also points to multiple other DOJ legal opinions on the WIPO Internet Treaties, including opinions on ratification, privacy issues, and the TPM provisions. It is presumably these opinions that supported the approach found in Bill C-60, the 2005 Canadian copyright bill that linked circumvention to copyright infringement.

The government's C-11 approach, which seemingly ignored the Department of Justice's legal advice on the constitutional vulnerability of digital lock rules that are not linked or tied to copyright infringement, suggests that a future constitutional challenge of C-11 may be possible. Moreover, a constitutionally vulnerable bill is not the only problem, as the Industry Canada document also places the spotlight on criticisms from the Competition Bureau. More on those concerns in a post tomorrow.