Will The Next Copyright Bill Pass Constitutional Scrutiny?

Michael Geist reminds us of an important aspect of the anti-circumvention proposals in the Canadian context.

My colleague Jeremy deBeer has been the leading voice questioning whether anti-circumvention legislation - the legal protection for DRM that is often described as "para-copyright" - is constitutional, given that the potential rules arguably involve property rights (which falls under provincial jurisdiction) far more than traditional copyright (a federal matter).

It is important for people to realize that what is controversial isn't copyright holder locking down their content such that they can only be accessed with the right decryption keys, but the suggestion that the keys should only be distributed to hardware/software vendors who lock down hardware in order to lock the owner out. All the rules in the software that revoke the rights of the owner of the hardware are either property or contract law in nature, which is provincial jurisdiction in Canada.

While the feds may have have the jurisdiction to seek to protect the rights of copyright holders, it seems to be the provincial governments that are responsible for protecting the rights of technology owners.