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Canadian Supreme Court Entrenches Tech Neutrality In Copyright Law 54

Posted by Unknown Lamer
from the prepare-for-battle dept.
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."
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Canadian Supreme Court Entrenches Tech Neutrality In Copyright Law

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  • we are (Score:4, Insightful)

    by alienzed (732782) on Tuesday July 17, 2012 @06:32PM (#40679475) Homepage
    the Champions. But if you move here, please respect what's left of the physical environment too.
    • I always thought there were more trees than people in Canada.
    • Re: (Score:3, Insightful)

      by davester666 (731373)

      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'.

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

      A Harper-ectomy would be far more effective.

  • Fill me in, eh (Score:5, Interesting)

    by paiute (550198) on Tuesday July 17, 2012 @06:37PM (#40679529)
    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 (Score:5, Informative)

      by Literaphile (927079) on Tuesday July 17, 2012 @06:48PM (#40679623)

      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.

      • by Tester (591)

        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.

        • by dryeo (100693)

          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.

          • by dryeo (100693)

            Canada Act of 1867

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

      • 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 (Score:4, Informative)

      by danomac (1032160) on Tuesday July 17, 2012 @06:58PM (#40679701)

      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 (Score:5, Informative)

      by Beardo the Bearded (321478) on Tuesday July 17, 2012 @07:32PM (#40679993)

      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: (Score:3, Insightful)

        by Mashiki (184564)

        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 sys

      • by 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

      • by dryeo (100693)

        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 [wikipedia.org]) 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.w [wikipedia.org]

    • by dryeo (100693)

      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.

    • 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 unan

  • It's about time (Score:5, Insightful)

    by Tough Love (215404) on Tuesday July 17, 2012 @09:25PM (#40680793)

    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.

    • by danomac (1032160)

      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...)

      • 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.

      • by anubi (640541)
        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
    • by sunami88 (1074925)

      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 tow

      • by mcgrew (92797) *

        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 anno

        • by sunami88 (1074925)
          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 -
    • 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

    • by Trogre (513942)

      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.

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