Canadian Supreme Court Entrenches Tech Neutrality In Copyright Law 54
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."
Re:Fill me in, eh (Score:5, Informative)
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 (Score:4, Informative)
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)
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 (Score:5, Informative)
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:Résumé? (Score:5, Informative)
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:Fill me in, eh (Score:4, Informative)
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.