Chapter 4

Constitutional Jurisdiction Over Paracopyright Laws
Jeremy F. deBeer 

This paper considers whether the Government of Canada’s proposed legislation addressing technological protection measures and rights management information would be constitutionally-valid federal law and examines the provinces’ role in the debate over these copyright reforms. The Constitution allocates exclusive legislative responsibility for various matters to either the federal or provincial governments. The constitutionality of the proposed provisions turns on their pith and substance, which seems to involve technological and contractual controls over terms of distribution of digital materials. For a list of reasons, qualifications on the legal effects, intended to tether the legislation to existing copyright doctrine, may not be sufficient to resolve the constitutional issues. The key point is not whether the provisions trace the scope of the existing Copyright Act, but whether they are in the nature of "Copyrights" laws for the purpose of the Constitution Act, 1867. In this context, one must consider not only the provisions’ strict legal operation, but also their purpose and practical effects. A thorough study of the proposed provisions shows them to be “paracopyright” laws, the true character of which is quite different from traditional copyright legislation. 

Consequently, there are some doubts whether the provisions can be sustained as a matter within federal authority over Copyrights, Trade and Commerce, Criminal Law, or laws for the Peace, Order, and good Government of Canada. An argument can be made that this issue falls under the provinces’ authority in respect of Property and Civil Rights. Certainly, the broader the provisions, the further they trench into the provinces’ domain, and the more vulnerable they become. The federal Government should be reluctant to test the limits of the Copyrights clause by widening the proposed legislation before it is enacted, and courts ought to be wary of the constitutional concerns when interpreting the law once it is passed. The best way to avoid constitutional problems is to resolve current ambiguities so as to narrow the scope of the proposed provisions. 

Further study and consultation with the provinces is warranted before these provisions become law. Regardless of the federal Government’s intentions, the provinces’ might be able to take jurisdiction over certain aspects of to technological protection measures (TPMs) and rights management information (RMI). Provincial Attorney Generals must, therefore, contribute to this discussion. Doing so will facilitate democratic involvement in the law reform process and maximize opportunities for effective citizen participation. These are among the foremost goals, not only of copyright law, but also of the entire Canadian federal system. 


About the Author: 

Jeremy F. deBeer is a law professor at the University of Ottawa, specializing in intellectual and classic property law. He holds a BCL (First Class) from the University of Oxford, and a LL.B (Silver Medallist with Great Distinction) and B.Comm (Great Distinction) from the University of Saskatchewan. Professor deBeer is a member of the Law Society of Upper Canada, and was previously employed as legal counsel to the Copyright Board of Canada. His most recent research addresses the constitutional implications of copyrights, the role of levies in the music industry, and the notion of balance in copyright and patent law. He is online at www. jeremydebeer.ca.