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

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

[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.

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.