Canadian Supreme Court Entrenches Tech Neutrality In Copyright Law

An anonymous reader writes "Last week, a Canadian Supreme Court decision attracted attention for reduced copyright fees for music and video. Michael Geist has a detailed analysis that concludes there are two bigger, long term effects. First, Canada has effectively now adopted fair use. Second, the Supreme Court has made technological neutrality a foundational principle of Canadian copyright. The technological neutrality principle could have an enormous long-term impact on Canadian copyright, posing a threat to some copyright collective tariff proposals and to the newly enacted digital lock rules."

Comments

we are

[alienzed]

the Champions. But if you move here, please respect what's left of the physical environment too.

Re:we are

[Lynchenstein]

...please respect what's left of the physical environment too.

The physical environment isn't going anywhere. It may be changing, but we're not ending up with "less".

Re:we are

[wisnoskij]

Yes instead of productive farmland, and animal teaming forests we have deserts and toxic waste-lands.
But the exact same amount of land, except for the thousands of acres lost to glacier melt.

Re:we are

[Lynchenstein]

Yes instead of productive farmland, and animal teaming forests we have deserts and toxic waste-lands. But the exact same amount of land, except for the thousands of acres lost to glacier melt.

Right, but the acres of land "lost" has been replaced with water or swamp It is still all "environment". I'm just being pedantic since I don't have anything of value to add to this discussion on copyright... not trolling I hope.

Re:we are

[Anonymous Coward]

aaaaand its posts like these that drag us all down. If you can't infer the meaning behind "what's left of the physical environment too" then ... yeah.

Re:we are

[azcodemonkey]

I always thought there were more trees than people in Canada.

Re:we are

[Anonymous Coward]

You know that's a pretty good definition of trolling, right? Maybe what you meant was you're hoping your not flamebaiting?

Re:we are

[davester666]

Not really. Harper has already jammed ACTA up our ass, and I doubt the 'only valid if at least X countries sign' will stop him from just passing all the laws to enact ACTA regardless of any outcry.

He's really taken to this 'dictator until my 5 years are up'.

Re:we are

[ThatsNotPudding]

But if you move here, please respect what's left of the physical environment too.

A Harper-ectomy would be far more effective.

Re:we are

[Anonymous Coward]

Yes instead of productive farmland, and animal teaming forests we have deserts and toxic waste-lands. But the exact same amount of land, except for the thousands of acres lost to glacier melt.

That sounds quite sensationalistic and exaggerated.

I've traveled around the country quite a bit and I haven't seen what I would call a deserts or a toxic waste-land. Sure, there are small areas being used and changed. Some of them will be restored when the industrial activity is done, but others won't (e.g. open pit mines).

The biggest problem I've observed is the imported pine beetles turning sections of the BC forests red when the trees die.

Re:we are

[Dishevel]

"Land" lost to glacier melt is not lost.
It was never "land" just solid water. It just changed to squishier water. :)

Re:we are

[Dishevel]

If they take too many trees out I am sure they can just kill some Canadians to keep the Tree to Human ratio steady.

Re:we are

[wisnoskij]

Land: "The part of the earth's surface that is not covered by water,"

Fill me in, eh

[paiute]

In Canada, does their Supreme Court make laws? Or did the court just interpret an existing law which will be quickly altered to void this inconvenient decision?

Re:Fill me in, eh

[Literaphile]

Of course when the industry has more than 2/3 of the lawmakers on the payrole it doesn't matter. They'll just alter the constition.

You're kidding, right? It's virtually impossible to alter the Canadian constitution.

Re:Fill me in, eh

[Literaphile]

In Canada, does their Supreme Court make laws? Or did the court just interpret an existing law which will be quickly altered to void this inconvenient decision?

It depends on how you define "make laws". Technically, the legislature in Canada is supreme - they make the laws. Just like in the US. But all laws are subject to the Constitution and more specifically the Charter, which means that they can be struck down by the judiciary; i.e. Canada has de facto judicial supremacy. And of course, the common law is judge-made law, just as it is in every common law country.

But in this case, yeah, the legislature can just go ahead and introduce a new law that it thinks will pass the judicial test. That's how the system is supposed to work anyway.

Re:Fill me in, eh

[danomac]

In general, the Supreme Court is used to interpret existing laws.

This court is generally used to put laws under the microscope (generally speaking) when it comes to the constitutionality of the law in question; the other major use is when there's an issue that challenges the division of power between the Federal and Provincial governments.

Most frequently the Court hears cases of national importance or where the case allows the court to settle an important issue of law (such as the issue at hand.)

Re:Fill me in, eh

[Anonymous Coward]

You only need 7 out of 10 provinces representing at least 50% of the population agreeing to a change. How hard could that be! /sarcasm

Canada wold likely break up before someone could get a constitutional amendment could be passed. So short of buying off every eligible voter in the country the entertainment industry is SOL.

Re:Fill me in, eh

[Tester]

In Canada, does their Supreme Court make laws? Or did the court just interpret an existing law which will be quickly altered to void this inconvenient decision?

It depends on how you define "make laws". Technically, the legislature in Canada is supreme - they make the laws. Just like in the US. But all laws are subject to the Constitution and more specifically the Charter, which means that they can be struck down by the judiciary; i.e. Canada has de facto judicial supremacy. And of course, the common law is judge-made law, just as it is in every common law country.

But in this case, yeah, the legislature can just go ahead and introduce a new law that it thinks will pass the judicial test. That's how the system is supposed to work anyway.

But the constitution is irrelevant in this case, this case was all about regular law. So this is about common law, which is what the judges use to interpret the laws passed by parliament. So Parliament can absolutely void all of this by changing th statutes.. But the last time time they touched copyright law, it was hugely controversial, so I don't expect this government or any government to expand political capital doing that in the near future.

Re:Fill me in, eh

[Anonymous Coward]

And if they fail, they will just get new judges. It simply takes time. But eventually the industry will have the people it needs in place.

Re:Fill me in, eh

[Beardo the Bearded]

All right, here goes:

First, the highest law in Canada is the Constitution. We have our own, it's a little different than yours.

A close second is the Supreme Court of Canada (SCC). To get there, you'd have to have a court case in your provincial Supreme Court, then appeal that to the Appeal Court of your province, and then up to the Supreme Court of Canada. What the SCC says goes, and it's binding on the country basically forever.

Parliament can pass laws, but they have to be brought in three times, with a quick stint through the Senate in between each "reading". After the third reading, the Governor General (Her majesty's representative in Canada) gives Royal Assent. This is basically 100% guaranteed, the GG will not refuse to pass a law that's been passed by Parliament and the Senate. It COULD happen, in theory, but it's got less chance than all the man pages in Linux being done by lunchtime tomorrow by volunteers from Microsoft.

So, that's how we get new laws in Canada. Laws that are against the Constitution get picked up by court cases and then eventually end up in the SCC. One famous case is Insite, which allows safe drug use in provincially-run clinics and may be one of the most important court cases in Canadian History. Anyway, the SCC will decide whether a law passed by Parliament is valid under Canadian Law. Remember what I said about the Constitution? You can't violate it, The End. That includes our Charter of Rights and Freedoms, which is really close to your Bill of Rights but with less ammo and more privacy.

Now, the government has just passed an updated Copyright Act, which the SCC went over and changed to be a little more suitable with Canada's higher laws. That's what the two links in the article detail, so I won't go into them again. The thing is that Parliament won't open it up again, as far as Canada's concerned it's a done deal.

Re:Fill me in, eh

[realityimpaired]

You're kidding, right? It's virtually impossible to alter the Canadian constitution.

It's been done several times in my lifetime, and there's a bill before parliament right now to read "gender identity/expression" into the list of protected classes in section 15 of the Charter (which is part of the Constitution Act). That particular bill has been put forward/failed a few times under Harper, but this time it was put forward by a Con, and has passed 2nd reading, and many provinces have already made such alterations to their own human rights legislation, so it's kind of moot at this point for most Canadians.

It's nearly impossible to *buy* a change to the Constitution, but it's a bit disingenuous to say that the Constitution can't be changed, when it's already been changed several times in the last 30 years. Just that most of the changes that've been made have to do with equality rights, and are about increasing the rights afforded to people, not decreasing them. The real problem (or advantage, given the current discussion) is that even if a modification gets passed, the provinces can still invoke the Nothwithstanding clause.

Re:Fill me in, eh

[Mashiki]

Yeah just don't forget S.1 of the Charter.
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Always puts a damper on stuff, it can be good or it can be bad. Though it's always the courts that ends up being the counter to the government as we see in cases like this. I said oh 3 months back that this is what would happen, and it did. The system does work and fairly well. It's better when founding documents aren't considering "living and breathing" but rather foundational. It stops people from going: "but the framers said "X" which is half the problem in the US and the supreme court. It's better when laws are written to the language of the foundation, and the courts and government are bound to the strictest terms of the foundation itself.

Re:Fill me in, eh

[Anonymous Coward]

Posting as AC because I usually just lurk, so I have no ID...
Sadly, we do have section 33, which would be in character for the current federal government (control freaks) to use. However, this would be political suicide in the long run.
http://en.wikipedia.org/wiki/Section_Thirty-three_of_the_Canadian_Charter_of_Rights_and_Freedoms

Re:Fill me in, eh

[mirix]

It's a damn shame that several judges have retired / will retire during Crime Minister Harper's reign. Guess that will be his other legacy, continuing to ruin Canada after he's been turfed.

Re:Fill me in, eh

[dryeo]

They can rule laws unconstitutional, often suspending judgement for a period to give Parliament a chance to rectify the law. Previous governments also often asked the Supreme Court to rule on a laws constitutionally before it becoming a law. This government just passes laws and then acts abashed when they're struck down, with the theory that they can pass laws faster then the Supreme court can review them.

Re:Fill me in, eh

[dryeo]

It also depends on the amendment. While AC is correct about anything important, some amendments are easy to pass. eg renaming Newfoundland to Newfoundland and Labrador took a constitutional amendment but only Parliament and the legislature of Newfoundland were needed to pass it.

Re:Fill me in, eh

[dryeo]

I've heard the theory that the digital locks part of the copyright law is unconstitutional as (the way it is written) it deals with property and property, according to (I believe) the Canada Act of 1867 (part of our constitution) is the domain of the Provinces.

Re:Fill me in, eh

[Anonymous Coward]

Well, it's true that the Notwithstanding clause can provide a constitutional exception. However this kind of power is rarely exercised for the following reasons:

1). Notwithstanding was hugely controversial when it made it in to the constitution. It was placed there to mainly to allow Quebec to violate other terms of the constitution on language laws. That is very well known and understood; in order for a government to use Notwithstanding for other purposes or in other jurisdictions, they would probably have to fight an election over it;
2). All Notwithstanding exceptions automatically expire. I forget, I think it's every 3-5 years. If you want to keep a Notwithstanding exception going, you have to pass new legislation and do the whole thing all over again;
3). Canada is a parliamentary democracy in the Westminster tradition. Norms and cultural practices are important. Use of Notwithstanding is essentially an announcement, very publicly, that "we are going to go against the entire rest of the constitution. It's lawful but provocative."

By analogy, using Notwithstanding is like colouring outside the lines in your colouring book. You are attracting attention to yourself and your actions. At the governmental level, there will be long-term, perpetual pressure to avoid using such a tool.

Re:Fill me in, eh

[dryeo]

Canada Act of 1867

That should of course be the British North America Act of 1867, now called the Constitution Act of 1867.

Re:Fill me in, eh

[dryeo]

First, the highest law in Canada is the Constitution. We have our own, it's a little different than yours.

It's quite different as it encompasses a few documents.
The British North America Act of 1867 (now named the Constitution Act of 1867, http://en.wikipedia.org/wiki/Constitution_Act,_1867) outlines the basic form of our government including the division of powers between the feds and the provinces. It was an Act of the British Parliament and until 1982 could only be amended by the British Parliament.
The Statute of Westminster (passed by the British Parliament in 1931, applied to Canada on passing, http://en.wikipedia.org/wiki/Statute_of_Westminster_1931) made the different Dominions equal to the United Kingdom and sort of made it so the British Parliament could not legislate for the Dominions. This is the basis for the relationship of the members of the Commonwealth and the Crown and takes something like 16 parliaments to change as in the current plans to change the order of Succession.

Re:Fill me in, eh

[dontmakemethink]

Well put. Similarly the Supreme Court can strike down a law passed by the House Of Commons or provincial Legislative Assemblies on the grounds that it violates the Constitution, Charter Of Rights & Freedoms, or provincial jurisdictions etc, however the Supreme Court can't introduce new law, only alter existing ones to suit evolving judicial interests and the Constitution and Charter. That's gotta feel pretty good, the "I know better, nyah nyah" part. That's why they don't wear pants under the robes.

Re:Fill me in, eh

[Dixie_Flatline]

There are parts of the Charter that are immune from notwithstanding tampering, like women's equality rights. The notwithstanding tool is very powerful, but even it has its limits.

Re:Fill me in, eh

[Anonymous Coward]

"This government just passes laws and then acts abashed when they're struck down, with the theory that they can pass laws faster then the Supreme court can review them."

It's politically more effective than that. They can appeal to their supporters as having tried to pass the legislation, and then blame the Supreme Court for striking it down. Never mind that the law may have been unconstitutional. It's "the court's fault". Then the MPs can act outraged when they get back to talk with their constituents and say "If it wasn't for you damn kids and your 'Constitution', I would have gotten away with it!"

In reality, of course, they just wasted a whole lot of time (and taxpayer dollars) in Parliament trying to pass a bill that was unconstitutional instead of doing their job and crafting a law that abides by it in the first place.

Re:Fill me in, eh

[Dishevel]

You only need 7 out of 10 provinces representing at least 50% of the population agreeing to a change. How hard could that be! /sarcasm

Canada wold likely break up before someone could get a constitutional amendment could be passed. So short of buying off every eligible voter in the country the entertainment industry is SOL.

Free 3D movie running at 67,000 FPS this weekend for every person in Canada!
and, Done!

Re:Fill me in, eh

[Anonymous Coward]

The politicians in Canada like the Supreme Court to rule on contreversial laws or decisions. When the outcome of a decision will piss off a large segement of the voters no matter which way the decision goes, the politicians like for it to be kicked up to the supreme court. It is a winning situation for the politicians, they can say to the people the decision pissed off that it wasn't their fault.

Re:Fill me in, eh

[grantpalin]

The SCC can look at a law in question and determine if it is in keeping with the Constitution. If said law conflicts with the Constitution, then it is considered invalid. The Constitution is supreme.

It can be changed, and has been some number of times. Some changes are relatively easy to make, where a change pertains only to one province. Other changes that involve multiple provinces are harder, but still doable. One of the hardest changes to make is the position of the Governor General, which requires unanimous approval, so the GG's position as-is can be considered entrenched in the Constitution.

Re:Fill me in, eh

[Anonymous Coward]

In Canada, does their Supreme Court make laws? Or did the court just interpret an existing law which will be quickly altered to void this inconvenient decision?

It depends on how you define "make laws". Technically, the legislature in Canada is supreme - they make the laws. Just like in the US. But all laws are subject to the Constitution and more specifically the Charter, which means that they can be struck down by the judiciary; i.e. Canada has de facto judicial supremacy. And of course, the common law is judge-made law, just as it is in every common law country.

But in this case, yeah, the legislature can just go ahead and introduce a new law that it thinks will pass the judicial test. That's how the system is supposed to work anyway.

Small correction: In Canada, the Crown is supreme. The three branches of the Canadian government - Judicial, Legislative, and Executive - act under the sovereign's authority and serve at Her Majesty's pleasure.

Résumé?

[Anonymous Coward]

Can someone tell me if it's now legal (again) to rip a DVD I buy so I can play it on my own computer, my AppleTV, iPhone, etc?

Re:Résumé?

[green1]

Currently, no. because DVDs contain "digital locks" the new copyright law removes the right you had under the previous law to do just that.
However, what this court case demonstrates is that the Supreme Court does have some sense of reason and therefore there is a chance that if someone does challenge the digital locks provision all the way to the supreme court, it may be overturned which would make it legal to once again use the media you already paid for in whatever way you want. Basically though the new copyright law is still too new for any of it to have made it's way all the way to the Supreme Court, so we won't get to find out for sure for a while yet (my best guess... 10 years... which of course also likely means a completely different set of judges on the supreme court, so it's hard to say for sure...)

Re:Résumé?

[Anonymous Coward]

Yes, of course it's legal to do so. There are new user rights in the new copyright law that specifically allow "format shifting", which is a big improvement over the old law.

Although ... if any of that media has any kind of "digital lock" (i.e. DRM), such as, oh, CSS encryption on a DVD, then that's specifically illegal to circumvent, and it's also illegal to possess or make the tools to do the circumvention. So, don't be deCSSing or un-rot13ing anything while exercising your new rights, okay?

Enjoy your new rights! Brought to you by "Canada's New Government". :-)

It's about time

[Tough Love]

My Nexus 7 arrived today. It comes preloaded with a copy of "Transformers: Far side of the moon" for my viewing pleasure. Five minutes into viewing it there was a popup advising the battery is low. So I go get the USB cable and plug it in. Now the movie won't play, it says "Couldn't load licence key (error 16)". Bah. So all the smart boys and all the smart girls over at Google can't make DRM work properly. Can anybody make DRM work properly? Does DRM have any right to life whatsoever?

Canada is heading towards making DRM illegal. Good for Canada, and a perfect example why.

Re:It's about time

[danomac]

I have the Nexus 7 as well.

The movie is streamed. If you have network issues you won't be able to watch it.

You can download it to the device to watch later (use the pin, also available in the book section...)

Re:It's about time

[Tough Love]

I didn't have network issues, the connection was still good. Something about the DRM was broken. It fixed itself after I rebooted for the upgrade, but the takeaway is... DRM is the enemy of good user experience.

Re:It's about time

[anubi]

Your experience mirrors mine with DRM'ed stuff. I can not count on it to work. While annoying for a movie or music, it can be a real show-stopper if its critical business software.

You nailed the primary reason I insist on NO DRM on anything I have - especially critical software. So far, I have been fortunate to find open-source, free ( Linear Technology SPICE ) or non-DRM solutions ( Eagle Schematic/PCB ) which I feel confident I can count on to work when I have a job to do.

DRM stuff is fine for big businesses with legal staff and lots of financial inertia on hand to keep the payroll running while they hash out DRM issues.

If the law protected me from DRM malfunctions as well as it protects DRM creators from having their DRM violated, I would feel differently. So far, I consider DRM stuff mostly hopeware - I just hope it works and no-one changes the servers, addresses, routing, or whatever the device needs to "phone home" in the future.

Its like living in a rented house - I never know when the landlord is going to evict me - for any reason at all - and there is nothing I can do about it. I should have known all along not to build my business around things I can not control.

Re:It's about time

[sunami88]

My Nexus 7 arrived today. It comes preloaded with a copy of "Transformers: Far side of the moon" for my viewing pleasure. Five minutes into viewing it there was a popup advising the battery is low. So I go get the USB cable and plug it in. Now the movie won't play, it says "Couldn't load licence key (error 16)". Bah. So all the smart boys and all the smart girls over at Google can't make DRM work properly. Can anybody make DRM work properly? Does DRM have any right to life whatsoever?

Canada is heading towards making DRM illegal. Good for Canada, and a perfect example why.

How is this +5 Insightful? You don't think it might have something to do with the fact that Android does debugging over USB, therefore making it "possible" at least to get an unencrypted version of the movie (i.e. screengrabs while it's playing)?

Thanks for letting us know you have a Nexus 7, though.

Re:It's about time

[Dixie_Flatline]

I think you're misinterpreting the judgement. What I'm getting from it is that whatever technology is being used for the item at hand—in this case, a movie— must not be any more onerous than if you owned a physical copy. Companies will still have the right to try and prevent you from creating an unlimited number of copies and profiting off of that, but if you're using it in your own home, it is unreasonable for them to make it significantly difficult for you to enjoy your own property.

The other thing that I got out of the decision is that the movie is actually your property, not the property of someone else with a revocable licence that can be withdrawn at any time. They sold it to you, like they could sell you a movie on a VHS tape. That tape was yours. This judgement effectively states that the medium of transmission doesn't impact your ownership. Downloading the video (after you paid for it) was just a different way of getting the content into your hands; it's not a fundamentally different entity than the VHS tape.

IANAL, of course.

Re:It's about time

[mcgrew]

How is this +5 Insightful?

You not only miss his point completely, you seem to be actively avoiding it. His point is that there should be no need whatever for the damned movie to phone home. There should be no reason you should have a net connection to watch a movie or play a single player game.

DRM helps nobody except the folks giggling that the DRM they wrote is raking in cash from clueless morons in the entertainment industry even though it can't possibly do what it's designed to do. All DRM can do is annoy paying customers; it doesn't affect piracy at all, except when it pisses off paying customers enough that they go to the Pirate Bay for a superior product than the legal one.

Re:It's about time

[sunami88]

Perhaps I am missing the point. Just seems to me that at that point, Google would be actively distributing tools to circumvent their own DRM.

I hate DRM as much as any other Slashdotter, but the fact of the matter is Google wants it to be as difficult as possible to break their stuff free. Besides which, the Nexus 7 is already a deprecated media tablet (no microSD, no USB host, no CIFS afaik), so it seems silly to get pissed when the DRM system breaks. That's what you're getting when you buy the Nexus 7 - a device made only to get it's content from a locked down store.

I'm amazed there aren't more users angry at the fact that they can't just load up an SD card with media and go. To each their own though...

Re:It's about time

[Trogre]

Can anybody make DRM work properly? Does DRM have any right to life whatsoever?

No to the first question.
A thousand times No to the second.