The constitutionality of digital lock legislation has been examined in two articles by Canadian law professors. Both conclude that the provisions are constitutionally suspect if they do not contain a clear link to conventional copyright law. Their reasoning is that the constitution grants jurisdiction over copyright to the federal government, but jurisdiction over property rights is a provincial matter. Digital lock legislation that is consistent with existing copyright law – ie. one that factors in existing exceptions – is more clearly a matter of copyright. The C-32 provisions are arguably far more about property rights since the provisions may be contained in the Copyright Act, but they are focused primarily on the rights associated with personal property and expressly exclude copyright defences.
My colleague Jeremy deBeer conducted a detailed analysis of this issue in his article, Constitutional Jurisdiction over Paracopyright Laws. Many of his arguments were echoed in a 2009 article published in the Journal of Information Law and Technology by Professor Emir Aly Crowne-Mohammed and Yonatan Rozenszajn, both from the University of Windsor, which concluded that the anti-circumvention provisions found in Bill C-61 were unconstitutional. The authors argue that the DRM provisions were “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 government’s own analysis appears to confirm the constitutional concerns as it points to reforms that expressly create liability even in the absence of copyright infringement. The solution is an easy one – by linking circumvention to actual copyright infringement (as education, consumer groups, and technology companies have advocated), the bill would more readily withstand a constitutional challenge.