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

[azcodemonkey]

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

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

[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.

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

[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]

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]

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: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...)

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.