Copyrights, Federalism, and the
Constitutionality of Canadas
Private Copying Levy
Jeremy F. de Beer*
This paper explores the scope of Parliaments
authority under the copyrights clause of the Canadian
constitution. Particular consideration is given to the
overlap between copyrights, which are within federal
jurisdiction, and property and civil rights, which are the
legislative domain of the provinces. As a concrete
example, this paper assesses the constitutionality of
Canadas private copying levy. Because the levy has
been interpreted very broadly, it is arguably in pith and
substance a matter of property and civil rights.
Significant reinterpretation could narrow the scope of
the levy and bring it within federal jurisdiction over
copyrights. Otherwise, the levy may not be sufficiently
integrated with an overall valid scheme to withstand
scrutiny. More generally, this paper concludes that
Canadas copyrights clause does not give Parliament
carte
economic,
technological, or regulatory policies under the auspices
of the Copyright Act. Copyrights legislation must
remain tightly linked to authors cultural creativity, and
not unduly compromise matters of property and civil
rights.
cultural,
blanche
to
enact
la porte de
Cet article explore
telle que dfinie par
lautorit
parlementaire en ce qui a trait la notion de droit
dauteur
la Constitution
canadienne. Larticle se penche plus particulirement
sur les notions entre chevauches de droit dauteur,
droit qui relve de la comptence fdrale, et les
notions de proprit et droits civils, qui eux relvent de
la comptence lgislative provinciale. Larticle examine
un exemple concret : la constitutionalit de la redevance
sur la copie pour usage priv. Cette redevance ayant
bnfici dune interprtation trs large, il est possible
de soutenir que son caractre vritable relve dune
question de proprit et de droits civils. Une
rinterprtation approfondie de cette notion peut
nanmoins rduire ltendue de la redevance, ce qui la
ramnerait dans le cadre de comptence de l exercice
fdrale en matire de droit dauteur. La redevance ne
serait sinon suffisamment intgre dans un exercice
valide de comptence pour dfier tout examen en son
encontre. Plus gnralement, lauteur arrive la
conclusion que la disposition visant le droit dauteur ne
dfre pas au Parlement une carte blanche en ce qui est
de dcrter des politiques culturelles, conomiques, et
technologiques ou soit encore des mesures de
rglement dans le cadre de la loi sur le droit dauteur.
La loi sur le droit dauteur doit rester troitement lie
la crativit culturelle des auteurs et ne doit pas
indment compromettre des matires de proprit et de
droits civils.
* B.Comm., LL.B. (U. Sask.), B.C.L. (Oxon.), Assistant Professor, Faculty of Law Common
Law Section, University of Ottawa. Thanks to the University of Ottawa for funding this research
through an Initiation of Research New Direction Grant, to David Vaver and several anonymous
peers for their helpful comments, to Daphne Gilbert and especially Guy Rgimbald for their insights
on constitutional issues, and to Adrienne Telford, Barry Steinman, Scott Lucyk, and Robert
Tomkowicz for their research assistance. Funding provided by the Law Foundation of Ontario.
Creative Commons [Attribution-Noncommercial-No Derivative Works 2.5 Canada]Jeremy F.
de Beer 2006
To be cited as: (2006) 51 McGill L.J. 735
Mode de reference : (2006) 51 R.D. McGill 735
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
736
Introduction
I. Scope of Jurisdiction over Copyrights
A. Jurisprudential Vacuum
B. Interpreting Canadas Copyrights Clause
C. Copyrights & Trenching
II. Canadas Private Copying Levy
A. Purpose
B. Effect
C. Summary
III. Other Federal Powers
A. Peace, Order, and Good Government
B. Trade and Commerce
C. Taxation
Conclusion
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J.F. DE BEER CANADAS PRIVATE COPYING LEVY
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Introduction
Copyright law is evolving in response to changing social values, new modes of
expression, economic circumstances, consumer demands, and
technological
innovations. The Canadian Copyright Act1 is being amended and reamended with
increasing frequency.2 Though incremental tweaking of copyright legislation is
sometimes necessary or desirable, incrementalism has a drawback.3 Bit by bit, it can
pull us away from the core values and organizing principles underlying copyright.
Eventually, we can find ourselves in a position quite different from where we started.
Relatively recent and dramatic shifts in copyright law and policy have brought
this issue to the surface. In the last decade especially, the nature and scope of
copyright protection has exploded. Parliament has expanded the Copyright Act to
envelop new parties, and has granted new powers and privileges to existing rights-
holders. Canada is now on the verge of implementing two international treaties to
further expand the boundaries of copyright.4 Even newer treaties are being negotiated
and may soon need to be incorporated into our domestic law.5
Not much thought has been given to (or at least not much has been written or
litigated about) the constitutional division of legislative powers when it comes to
making new copyright laws. Although the Supreme Court has commented numerous
times in the past few years about various copyright issues,6 it has recently refused to
consider copyrights constitutional implications.7 This paper looks at whether and
1 R.S.C. 1985, c. C-42 [Copyright Act].
2 Sunny Handa, Copyright Law in Canada (Markham, Ont.: Butterworths, 2002) at 56; Michael
Geist, Address (presented at the Sound Bytes, Sound Rights: Canada at the Crossroads of Copyright
Law Conference, 11 February 2005) [unpublished].
3 See Jeremy F. de Beer, Canadian Copyright Law in Cyberspace: An Examination of the
Copyright Act in the Context of the Internet (2000) 63 Sask. L. Rev. 503 at 536-38.
4 WIPO Copyright Treaty, 20 December 1996, 2186 U.N.T.S. 121, WIPO Publication No. 226
(entered into force 6 March 2002) [WCT]; WIPO Performances and Phonograms Treaty, 20
December 1996, 2186 U.N.T.S. 203, WIPO Publication No. 227 (entered into force 20 May 2002)
[WPPT].
5 See e.g. World Intellectual Property Organization, Draft Basic Proposal for the WIPO Treaty on
the Protection of Broadcasting Organizations, 8 February 2006, online:
6 Robertson v. Thomson Corp., 2006 SCC 43; Society of Composers, Authors and Music Publishers
of Canada v. Canadian Association of Internet Providers, [2004] 2 S.C.R. 427, 240 D.L.R. (4th) 193,
2004 SCC 45 [SOCAN cited to S.C.R.]; CCH Canadian Ltd. v. Law Society of Upper Canada, [2004]
1 S.C.R. 339, 236 D.L.R. (4th) 395, 2004 SCC 13 [CCH cited to S.C.R.]; Thberge v. Galerie dArt
du Petit Champlain, [2002] 2 S.C.R. 336, 210 D.L.R. (4th) 385, 2002 SCC 34 [Thberge cited to
S.C.R.].
7 Canadian Private Copying Collective v. Canadian Storage Media Alliance (2004), [2005] 2 F.C.
654, 247 D.L.R. (4th) 193, 2004 FCA 424 [CPCC cited to F.C.], leave to appeal to S.C.C. refused,
[2005] 2 S.C.R. vi.
to
issues
[Vol. 51
in modern copyright
law.9 Questions exist as
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
738
how copyright is permitted to evolve within the limits of subsection 91(23) of the
Constitution Act, 1867,8 Canadas Copyrights clause.
The constitutional limits on Parliaments powers have an impact upon a range of
controversial
the
constitutionality of the neighbouring rights of performers, record makers and
broadcasters,10 the moral rights granted to various creators,11 and also paracopyright
provisions addressing technological protection measures and rights management
information.12
In a nutshell, here is the problem. The constitution grants Parliament, as opposed
to provincial legislatures, authority to enact laws in respect of copyrights. But this
authority is not unlimited. Suppose, hypothetically, that the federal government
decides it is desirable that authors, performers, and record makers be permitted to
smoke marijuana. Imagine, for the sake of argument, that there was empirical
evidence (of the sort that justifies copyright law generally) to demonstrate that being
stoned encourages creativity. Parliament cannot simply enact a new section in the
Copyright Act granting music creators the right to smoke dope and requiring bong
manufacturers to supply it. Calling that a copyright would not make it so, at least not
for constitutional purposes. Moreover, the constitution grants provinces the power to
legislate in respect of property and civil rights. Although the federal government may
enact copyright legislation that incidentally affects property and civil rights, it cannot
enact laws that, in pith and substance, deal with matters of property and civil rights.
As a concrete example of the scope of the copyrights clause, this article looks at
the constitutional validity of Canadas private copying levy as presently interpreted.13
Upon consideration, the private copying levy lies close to the borderline between
8 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.
9 See David Vaver, Copyright Law (Toronto: Irwin Law, 2000) at 21-22; Howard P. Knopf, The
Constitutional Invasion of Intellectual Property Law (1991) 8 C.I.P.R. 157.
10 Wanda Noel & Louis B.Z. Davis, Some Constitutional Considerations in Canadian Copyright
Law Revision (1981) 54 C.P.R. (2d) 17 at 22.
11 Marcel Dub, Le pouvoir du Qubec de lgifrer en matire de contrat ddition (1989) 1 C.P.I.
317; Jean Leclair, La constitutionnalit des dispositions de la Loi sur le droit dauteur relatives aux
droits des distributeurs exclusifs de livres (1998) 11 C.P.I. 141; Jacques A. Lger, c.r., Protection des
artistes Droit dauteur Droit voisin Une autre approche constitutionnelle (1992) 5 C.P.I. 7;
Jacques A. Lger, c.r., Partage des comptences lgislatives en matires de droit dauteur et de droit
civil au Canada (1993) 10 C.I.P.R. 403.
12 Jeremy F. de Beer, Constitutional Jurisdiction over Paracopyright Laws in Michael Geist, ed.,
In the Public Interest: The Future of Canadian Copyright Law (Toronto: Irwin Law, 2005) 89
[de Beer, Paracopyright Laws].
13 This scheme allows consumers to copy music for private use, and grants certain authors,
performers, and producers of music the right to collect remuneration from manufacturers and
importers of blank recording media. Constitutional uncertainty surrounding the levy has been flagged,
but not yet fully analyzed in the scholarly literature. See e.g. Malcolm E. McLeod, Recent Copyright
Developments: The Canadian Perspective (1998) 15 C.I.P.R. 39 (noting it is not far-fetched to argue
in the Canadian context that the blank tape levy is not copyright legislation at 44).
739
J.F. DE BEER CANADAS PRIVATE COPYING LEVY
2006]
these two heads of power. The crux of the problem is that the scheme has been
interpreted very broadly to affect mainly persons who have little or nothing to do with
copying music. If it is to be saved, some interpretative wizardry may be needed.
This articles more general conclusion is that subsection 91(23) is a significant
constraint on Parliaments legislative powers. It does not give Parliament carte
blanche to implement cultural, economic, technological, or regulatory policies under
the auspices of the Copyright Act. The copyrights clause is a part of a living tree that
may evolve, but only within its natural limits. In my view, copyrights legislation must
remain tightly connected to authors cultural creativity and must not unduly
compromise matters of property or civil rights.
I. Scope of Jurisdiction Over Copyrights
A. Jurisprudential Vacuum
The meanings of many provisions in sections 91 and 92 are well settled, but
neither the Judicial Committee of the Privy Council nor the Supreme Court of Canada
has ever considered the scope of Parliaments jurisdiction over copyrights under
subsection 91(23). Nor have they considered the meaning of Patents of Invention
and discovery in subsection 91(22).14 The Supreme Court has defined and limited
the jurisdiction of Parliament to legislate in respect of trademarks, in MacDonald v.
Vapor Canada Ltd.,15 and revisited the constitutionality of trademarks legislation in
Kirkbi AG v. Ritvik Holdings16 Notably, however, trademarks are not an enumerated
head of power. Vapor Canada and Kirkbi were really cases about the trade and
commerce power. Although these authorities dealt with an intellectual property issue,
they are not much more helpful in sorting out the scope of the copyrights clause than
cases addressing any other provision regarding the division of constitutional powers.
Very soon after Confederation, the copyrights clause was considered in Smiles v.
Belford.17 The dispute concerned the effect of subsection 91(23) on imperial copyright
laws in Canada. In the course of addressing this issue, the Ontario Court of Appeal
noted that copyrights are a matter for the Parliament of Canada, as distinct from the
provincial legislatures.18 The scope of the federal power vis–vis the provinces,
however, was not considered.
14 There are some lower courts decisions addressing this clause: see e.g. Smith, Kline & French
Laboratories Ltd. v. Canada (A.G.) (1985), [1986] 1 F.C. 274, 24 D.L.R. (4th) 321 (T.D.); Lilly v. S &
U Chemicals Ltd. (1973), 9 C.P.R. (2d) 17 at 18 (F.C.A.).
15 (1976), [1977] 2 S.C.R. 134, (sub nom. MacDonald v. Vapour Canada Ltd.) 66 D.L.R. (3d) 1
[Vapor Canada cited to S.C.R.].
16 [2005] 3 S.C.R. 302, 259 D.L.R. (4th) 577, 2005 SCC 65 [Kirkbi cited to S.C.R.].
17 (1877), 1 O.A.R. 436 [Smiles], affg (1876), 23 Gr./U.C. Ch. 590.
18 Smiles, ibid. at 442-43, 446-47.
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More recently, the division of powers issue was mentioned briefly in an attack on
the tariff-setting powers of the Copyright Board of Canada. In Society of Composers,
Authors and Music Publishers of Canada v. Landmark Cinema of Canada Ltd.,19 the
Federal Court, Trial Division responded to the submission that certain provisions
were ultra vires Parliament as follows:
[Vol. 51
This argument moves directly against long-established jurisprudence which has
held that the Copyright Boards power to fix licence fees is not a matter of
contract, but of statutory fixation which is ancillary to, if not an essential
component of, Parliaments jurisdiction with respect to copyright under s.
91(23) of the Constitution Act, 1867 … 20
It is unclear from a review of the three authorities the court cited in support of that
statement what principle, precisely, is long-established. Two decisions of the
Exchequer Court of Canada can indeed be taken to stand for the proposition that
licence fees set by the Copyright Board are statutory, not contractual, in nature.21 It
was asserted in one, and merely echoed in the other, that [t]he legislation under
consideration is clearly legislation on the subject of copyright … .22 No further
explanation was given. The third case cited in Landmark Cinema made no mention of
the issue whatsoever.23 Relying on these questionable authorities, the court granted a
motion to strike pleadings that raised the division of powers issues, stating that such
arguments had already been thoroughly debated and dealt with.24 That claim does
not seem to be true.
In Royal Doulton Tableware Ltd. v. Cassidys Ltd.,25 the Federal Court, Trial
Division stated in passing: Parliaments jurisdiction, as assigned by head 23 of
section 91 of the Constitution Act, 1867, is with respect to copyrights in general and
this amply sustains the comprehensive regime prescribed by the Copyright Act.26 No
more was said about the issue.
A concern about overlap between copyrights and property and civil rights was
evident in Bishop v. Tele Metropole.27 The Federal Court, Trial Division considered
19 (1992), 45 C.P.R. (3d) 346, 60 F.T.R. 161 [Landmark Cinema cited to C.P.R. (3d)].
20 Ibid. at 353.
21 Composers, Authors and Publishers Association of Canada Ltd. v. Sandholm Holdings Ltd.,
[1955] Ex. C.R. 244, 24 C.P.R. 58 [Sandholm Holdings cited to Ex. C.R.]; Composers, Authors and
Publishers Association of Canada Ltd. v. Elmwood Hotel Ltd. (1955), [1956] Ex. C.R. 65, 24 C.P.R.
77.
22 Sandholm Holdings, ibid. at 253.
23 Maple Leaf Broadcasting Co. Ltd. v. Composers, Authors and Publishers Association of Canada
Ltd., [1954] S.C.R. 624, 21 C.P.R. 45.
24 Landmark Cinema, supra note 19 at 353.
25 (1984), [1986] 1 F.C. 357, 1 C.P.R. (3d) 214 (T.D.) [Royal Doulton cited to F.C.].
26 Ibid. at 380.
27 (1985), 4 C.P.R. (3d) 349, (sub nom. Bishop v. Stevens) [1985] 1 F.C. 755 (T.D.) [Bishop (T.D.)
cited to C.P.R. (3d)], affd (1987) 18 C.P.R. (3d) 257 (F.C.A.), affd (sub nom. Bishop v. Stevens)
[1990] 2 S.C.R. 467, 72 D.L.R. (4th) 97 [Bishop (S.C.C.) cited to S.C.R.].
741
J.F. DE BEER CANADAS PRIVATE COPYING LEVY
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the validity of a provision that deemed tangible objects embodying works in which
copyright has been infringed to be the property of the copyright owner. This provision
was held to be justifiable, as it had only an incidental effect on tangible property
rights.
In the most recent case on point, CPCC,28 one of many issues was whether the
right to collect levies from manufacturers and importers of blank media is in respect
of copyrights for the purposes of subsection 91(23). The Federal Court of Appeal paid
attention to the issue of Canadian federalism, but only in the context of whether the
levy was an unconstitutional taxation law. Very little was said about the much more
direct significance of Canadian federalism for laws in respect of copyrights. The court
ruled that the levy was in pith and substance copyright law, essentially because the
scheme established a legal framework to remunerate certain rights-holders.29
The court, however, focused solely on the purpose of the scheme. The purpose is
only one part, albeit an important part, of the picture. Some consideration must also
be given to the nature of the right to remuneration and the identity of those obliged to
provide such remuneration. One must ask whether the rights-holders are copyrights-
holders, or instead hold some other type of civil right. At issue here is the pith and
substance of the right, notor at least not onlythe broad purpose of the legislation.
Furthermore, the matter should have been looked at from the perspective of both
payers and payees: what relationship do payers of the levy have to copyright? Are
they users, or simply convenient choke points at which to collect remuneration? To
put this in the context of a typical division of powers analysis, one must look at
whether or not the rights held, assuming they are copyrights, unduly impinge upon
other property and/or civil rights. In CPCC, the court failed to fully consider the
purpose and the legal and practical effects of the levy.
B. Interpreting Canadas Copyrights Clause
The Supreme Court has recently reaffirmed:
It is trite law that legislative authority under the Constitution Act, 1867 is
assessed by way of a two-step process: (1) characterization of the pith and
substance or dominant characteristic of the law; and (2) concomitant
assignment to one of the heads of power enumerated in ss. 91 and 92 of that
Act … 30
It is tempting to immediately embark on an analysis of Canadas private copying levy
using this standard framework. But the difficulty, as demonstrated above, is that no
constitutional benchmark exists against which to measure impugned legislation. This
vacuum demonstrates the need to first ask a more basic question: what are copyrights
28 Supra note 7.
29 Ibid. at paras. 32-38.
30 Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698 at para. 13, 246 D.L.R. (4th) 193, 2004
SCC 79 [Marriage Reference cited to S.C.R.] [reference omitted].
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about, and how does one determine whether a right is a copyright or something else?
Moreover, what is the permissible impact of copyrights legislation on matters
otherwise reserved for provincial legislators? Only after these issues are discussed is
it possible to properly analyze the concrete constitutional implications for schemes
such as Canadas private copying levy.
One might begin from a historical perspective.31 It is not possible to provide a full
discussion of the origins of copyright in this paper.32 Yet pre-Confederation copyright
laws shed some light on the possible intent of the framers of the constitution. The
Statute of Anne,33 enacted in 1710, was the precursor to modern Anglo-American
copyright34 legislation. Early grants of letters patent to book publishers could not
accurately be called copyrights. The Statute of Anne marked an evolution from a
system of Crown-controlled censorship to an author-centred right.35 From the time
that concept of the author was embedded in copyright discourse through the Statute of
Anne until the recent advent of the information age, copyright was remarkably
static.36
There were few Canadian enactments dealing with copyrights prior to
Confederation.37 In 1832, the legislature of Lower Canada provided protection to
authors of limited types of creative works (books, maps, charts, musical
compositions, prints, cuts, and engravings).38 The same protection was granted in the
new Province of Canada in 1841,39 and to U.K. residents in 1847.40 In Smiles, the
31 The United States Supreme Court has remarked: To comprehend the scope of Congress power
under the Copyright Clause, a page of history is worth a volume of logic (Eldred v. Ashcroft, 537
U.S. 186 at 200 (2003) [Eldred]).
32 For detailed historical discussion, see e.g. Handa, supra note 2, c. 3; Brad Sherman & Lionel
Bently, The Making of Modern Intellectual Property Law: The British Experience, 1760-1911
(Cambridge: Cambridge University Press, 1999); Lyman Ray Patterson, Copyright in Historical
Perspective (Nashville: Vanderbilt University Press, 1968); Mark Rose, Authors and Owners: The
Invention of Copyright (Cambridge, Mass.: Harvard University Press, 1993); Edward Samuels, The
Illustrated Story of Copyright (New York: St. Martins Press, 2000); John Feather, The Book Trade in
Politics: The Making of the Copyright Act of 1710 (1980) 8 Publishing History 19; John Feather,
The Publishers and the Pirates: British Copyright Law in Theory and Practice, 1710-1775 (1987) 22
Publishing History 5.
33 An Act for the Encouragement of Learning, by vesting the Copies of printed Books in the Authors
or Purchasers of such Copies, during the Times therein mentioned (U.K.), 8 Anne, c. 19.
34 The Oxford English Dictionary traces the first use of the word copy-right to the House of Lords
in 1735. It defines copyright as: The exclusive right given by law for a certain term of years to an
author, composer, designer, etc. (or his assignee), to print, publish, and sell copies of his original
work (Oxford English Dictionary, 2d ed., (Oxford: Clarendon Press, 1989) s.v. copyright).
35 Handa, supra note 2 at 36-37.
36 Ibid. at 37.
37 Noel & Davis identify two (supra note 10 at 20), whereas Handa lists three (ibid. at 55).
38 An Act for the Protection of Copy Rights, S.L.C. 1832, c. 53.
39 An Act for the protection of Copy Rights in this Province, S. Prov. C. 1841 (4 & 5 Vict.), c. 61.
40 An Act to extend the Provincial Copy-right Act to persons resident in the United Kingdom, on
certain conditions, S. Prov. C. 1847 (10 & 11 Vict.), c. 28.
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Ontario Court of Appeal said: no greater powers were conferred upon the Parliament
of the Dominion to deal with [copyrights] than had been previously enjoyed by the
Local Legislatures.41
The static state of pre-Confederation copyright might have suggested a limited
role for Parliament under subsection 91(23). However, as affirmed most recently by
the Supreme Court in the Marriage Reference, our Constitution is a living tree
which, by way of progressive interpretation, accommodates and addresses the
realities of modern life.42 The meaning of marriage is not constitutionally fixed,43
nor, for example, is the meaning of persons44 or criminal law.45 One can say the
same of copyrights.
Indeed, almost immediately after Confederation, copyright legislation began to
expand.46 Since Canada first enacted its own copyright statute in 1921,47 it has been
amended over thirty times, with most of the changes occurring after 1988.48 Probably
the most significant and dramatic developments were in 1997, when Canada fully
incorporated protection for neighbouring rights and a private copying levy into the
law.49 Most recently, the government introduced Bill C-60 in 2005, which included,
among other things, new paracopyright provisions addressing technological measures
and rights management information.50 The bill died on the Order Paper when an
election was called.
Copyright changes are frequently driven by international trends.51 According to
Noel and Davis, [a]n additional ground for maintaining the flexible nature of
copyright is the necessity of giving effect to the federal Governments changing
41 Supra note 17 at para. 15.
42 Supra note 30 at para. 22.
43 Ibid.
44 Edwards v. Canada (A.G.) (1929), [1930] A.C. 124, [1929] All E.R. Rep. 571 (P.C.) [Edwards
cited to A.C.].
45 Proprietary Articles Trade Association v. Canada (A.G.), [1931] A.C. 310 at 323-24, [1931] All
E.R. Rep. 277 (P.C.) [PATA cited to A.C.].
46 Copyright was extended to protect all literary, scientific, and artistical works or compositions in
An Act respecting Copyrights, S.C. 1868, c. 54, s. 1. Protection for dramatic works was added in 1921.
47 The Copyright Act, 1921, S.C. 1921, c. 24. The act came into force in 1924.
48 The act was amended in 1923, 1931, 1935, 1936, 1938, 1950, 1966-67, 1967-68, 1968-69, 1970,
1974-75-76, 1980-81-82-83, 1984, 1987, twice in 1988, 1990, 1992, twice in 1993, 1994, 1995, 1997,
three times in 1999, twice in 2001, twice in 2002, and 2003. See Geist, supra note 2.
49 An Act to Amend the Copyright Act, S.C. 1997, c. 24.
50 Bill C-60, An Act to amend the Copyright Act, 1st Sess., 38th Parl., 2005, cl. 29.
51 For example, moral rights were introduced as required by the Berne Convention for the
Protection of Literary and Artistic Works, 9 September 1886, Can. T.S. 1948 No. 22, 828 U.N.T.S.
221. See Treaties and Contracting Parties: General Information online: World Intellectual Property
Organization
Similarly, Canada would implement paracopyright provisions because of the 1996 WIPO Internet
treaties (see WCT, supra note 4; WPPT, supra note 4).
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international obligations and responsibilities … .52 Implicitly, they suggest that the
federal government can expand its legislative powers simply by committing itself to
international agreements.
The real question, however, is whether, in adhering to our international
obligations, we move the substance of copyright law away from the purview of
federal authority under the constitution. Or, framed differently, one could ask whether
our international obligations are truly obligations relating to copyrights. Simply
because an agreement was developed under the auspices of the WIPO does not mean
it concerns the federal copyrights power. The provinces might conceivably have or
share legislative jurisdiction to deal with the matter. While the existence of a general
federal power to implement treaties into domestic law is debatable,53 international
treaties certainly cannot define the scope of Canadas copyrights clause.54
One might also be tempted to look at foreign domestic jurisprudence for guidance
in interpreting the copyrights clause. The United States Supreme Court has often
considered Congress powers pursuant to the Progress clause of the U.S.
constitution: The Congress shall have Power … To promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries … .55 The theme in the American
jurisprudence is considerable deference to Congress: The Copyright Clause …
empowers Congress to define the scope of the substantive right.56 The Supreme
Court of Canada, however, has held that Parliament cannot define the scope of its
own constitutional jurisdiction.57
When interpreting the Canadian constitutional division of powers, courts have
rarely considered foreign jurisprudence in great detail.58 Justice La Forest has warned
52 Noel & Davis, supra note 10 at 21.
53 Peter W. Hogg, Constitutional Law of Canada, looseleaf (Scarborough, Ont.: Thomson Carswell,
2006) at 11-11 11-13.
54 Regarding the impact of international developments on Congress authority in the United States,
see Graeme W. Austin, Does the Copyright Clause Mandate Isolationism? (2002) 26 Colum. J.L. &
Arts 17 at 58-60.
55 U.S. Const. art. 1, 8, cl. 8. Recent examples of cases interpreting this clause include Feist
Publications v. Rural Telephone Service Co., 499 U.S. 340, 111 S. Ct. 1282 (1991); Eldred, supra note
31.
56 Eldred, ibid. at 218 [emphasis in original].
57 Marriage Reference, supra note 30 at para. 38. See also Hogg, supra note 53 at 1-5 1-25.
58 The Privy Council considered the expression regulations of trade in the Act of Union when
defining the Regulation of Trade and Commerce in Citizens Insurance Co. of Canada v. Parsons
(1881), 7 App. Cas. 96 at 112-13 (P.C.) [Parsons]. It refused, however, to limit Parliaments
jurisdiction to the criminal law as recognized in England in 1867 (PATA, supra note 45). The Supreme
Court has, on occasion, considered international treaties and foreign domestic jurisprudence in
interpreting the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982
(being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11). See e.g. United States v. Burns, [2001]
1 S.C.R. 283 at paras. 82-93, 195 D.L.R. (4th) 1, 2001 SCC 7; Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3 at paras. 59-75, 208 D.L.R. (4th) 1, 2002 SCC 1;
745
J.F. DE BEER CANADAS PRIVATE COPYING LEVY
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that Canadian courts should be wary of drawing too ready a parallel between
constitutions born to different countries in different ages and in very different
circumstances … .59 The Supreme Court has been careful to emphasize the
distinctions between Canadian and American copyright doctrine in particular.60
The Australian constitution,61 however, is similar to Canadas. It creates a
federation based on the Commonwealth parliamentary system. Consequently, some
insight can be gained from decisions of the High Court of Australia. In the recent case
of Stevens v. Kabushiki Kaisha Sony Computer Entertainment, Justice Kirby remarked:
To the extent that attempts are made to push the provisions of Australian copyright
legislation beyond the legitimate purposes traditional to copyright protection at law,
the Parliament risks losing its nexus to the constitutional source of power.62 In an
earlier case, the court had specifically considered whether Australias former private
copying levy was a matter of copyrights under its constitution.63 Although little was
said about the meaning of Australias copyrights provision generally, specific
comparisons between the Canadian and Australian levies will be drawn below.
Returning to the idea that the copyrights clause is not frozen in 1867, it is
important to note that there are some evolutionary constraints on the constitution.
Although the copyrights clause is capable of growth and expansion it may only
evolve within its natural limits.64 The argument that same-sex marriage was outside
the natural limits of marriage failed because an objective core of meaning which
defines what is natural in relation to marriage could not be agreed upon, beyond
the voluntary union of two persons to the exclusion of all others.65 It may, however,
be easier to identify an objective core meaning of copyrights.
The various philosophical perspectives on copyrights can be roughly segmented
into two streams.66 One view treats legal protection of creators rights as a means to
Irwin Toy Ltd. v. Quebec (A.G.), [1989] 1 S.C.R. 927 at 968-69; R. v. Keegstra, [1990] 3 S.C.R. 697 at
738-44, [1991] 2 W.W.R. 1.
59 R. v. Rahey, [1987] 1 S.C.R. 588 at 639, 39 D.LR. (4th) 481.
60 Compo Co. Ltd. v. Blue Crest Music (1979), [1980] 1 S.C.R. 367 at 367, 105 D.L.R. (3d) 249.
61 Commonwealth of Australia Constitution Act (U.K.), 63 & 64 Vict., c. 12 [Australian
constitution].
62 (2005) 79 A.L.J.R. 1850 at para. 18, [2005] HCA 58 at para. 18.
63 Australian Tape Manufacturers Association Ltd. v. Commonwealth of Australia (1993), 176
C.L.R. 480 (H.C.A.) [Australian Tape Manufacturers]. See generally Darren Challis, Ejecting the
Blank Tape Levy Case Comment on Australian Tape Manufacturers Association Ltd. v.
Commonwealth of Australia (1994) 16 Sydney L. Rev. 537.
64 Edwards, supra note 44 at 136.
65 Marriage Reference, supra note 30 at para. 27.
66 See generally Justin Hughes, The Philosophy of Intellectual Property (1988) 77 Geor. L. J. 287;
Edwin C. Hettinger, Justifying Intellectual Property (1989) 18 Phil. & Pub. Affairs 31; Tom G.
Palmer, Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal
Objects (1990) 13 Harv. J. L. & Pub. Poly 817; Wendy J. Gordon, On Owning Information:
Intellectual Property and the Restitutionary Impulse (1992) 78 Va. L. Rev. 149; Wendy J. Gordon, A
Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual
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the end of greater creativity for the benefit of society generally. The other perceives
protection of creative work as a natural right simply formalized by legal recognition.
Canadas bijuridical system poses a dilemma here, as copyrights are seen
differently in common law and civil law systems.67 The common law copyright
system focuses mostly on consequentialist theories that justify copyrights in terms of
promoting the creation of works for the public benefit. The civil law copyright system
draws more from natural rights doctrine, including personhood and Lockean theories.
Although neither theory has been ruled out as the basis of Canadian copyright law,
the utilitarian perspective tends to dominate.68
According to Professor Vaver,
[T]he central object of copyright law is to grant authors rights of exploitation in
their original literary, artistic, dramatic, and musical works, and also to grant
them rights to ensure that their work is properly credited and is not changed in a
way that harms the authors reputation … 69
As such, performers rights over their live performances … are categorically different
from copyrights historically, and so might not qualify constitutionally as
Copyrights … .70 Noel and Davis, however, suggest: Copyright, both in
conceptual and legal terms, is an umbrella under which creative activities of varying
degrees are collected and connected.71
I believe Professor Vavers view is the correct one. Noel and Davis perspective
seems to have been skewed by domestic, foreign, and international copyright
developments. It is important that the tail not wag the dog. The Copyright Act may
Property (1993) 102 Yale L.J. 1533; Wendy J. Gordon & Kenneth L. Port, eds., Symposium on
Intellectual Property Law Theory (1993) 68 Chicago-Kent L. Rev. 583; Peter Drahos, The
Philosophy of Intellectual Property (Aldershot: Dartmouth Publishing Company, 1996); Carys J.
Craig, Locke, Labour and Limiting the Authors Right: A Warning Against a Lockean Approach to
Copyright Law (2002) 28 Queens L.J. 1.
67 See generally Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary
France and America (1990) 64 Tul. L. Rev. 991; Roberta Rosenthal Kwall, Copyright and the Moral
Right: Is an American Marriage Possible? (1985) 38 Vand. L. Rev. 1; R. J. DaSilva, Droit Moral and
the Amoral Copyright: A Comparison of Artists Rights in France and the United States (1980) 28
Bulletin of the Copyright Society of the USA 1; Rudolf Monta, The Concept of Copyright Versus
the Droit dauteur (1959) 32 S. Cal. L. Rev. 177. For a historical perspective, see Gary Lea, Moral
Rights and the Internet: Some Thoughts from a Common Law Perspective in Frdric Pollaud-
Dulian, ed., Perspectives on Intellectual Property: The Internet and Authors Rights (London: Sweet
& Maxwell 1999). Alain Strowel gives a complete analysis of the differences between the two
systems in Droit dauteur et copyright: Divergences et convergences ; tude de droit compar
(Bruxelles: mile Bruylant, 1993).
68 See e.g. Craig, supra note 66; Handa, supra note 2, c. 4.
69 Vaver, supra note 9 at 1. See also John S. McKeown, Fox Canadian Law of Copyright and
Industrial Designs, 4th ed. (Scarborough: Carswell, 2003) s. 1:1 at 1:1-1:3.
70 Vaver, ibid. at 21.
71 Noel & Davis, supra note 10 at 30-31.
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J.F. DE BEER CANADAS PRIVATE COPYING LEVY
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have become an umbrella protecting the work of many different parties, but that
cannot define the core meaning of copyrights for constitutional purposes.
The basic benchmark of constitutional validity remains the Constitution Act 1867.
Authors are at the core of the copyrights clause. Other partiessuch as performers,
producers, or broadcastersand other activitiessuch as telecommunication or
rebroadcastsare further from the human creative process.72 If these persons and
activities are copyrights matters at all, they are nearer to the periphery. The same
might be said of non-exclusive rights to remuneration, which are clearly different
from the traditional exclusive rights of authors.
In sum, the pluralistic nature of Canadian copyright theory and discourse make it
difficult to draw firm conclusions about the boundaries of the copyrights clause.
Nevertheless, there is general consensus that copyrights revolve around the core
concept of authors rights or droit dauteur. It is safe to say, therefore, that valid
copyrights legislation must be directly related to authors original expressions.
Beyond this, there is little agreement.
Fortunately, assessing the constitutionality of a particular legislative provision
does not impose an obligation to determine, in the abstract and absolutely, the core
meaning of constitutional terms.73 Indeed, the most significant problem in evaluating
Canadas private copying levy is not defining the copyrights clause, but delineating
the fuzzy boundary between copyrights and exclusive provincial powers, such as
property and civil rights. To solve this problem, it is necessary to review the basic
constitutional principles governing the overlap between various constitutional heads
of power.
C. Copyrights & Trenching
The most important thing about copyright law is what it prohibits: copyrights,
like all property or monopoly rights, limit what people can do.74 In other words,
copyrights, by definition, are constraints on other peoples rights. These rights may be
constitutional or human rights, such as freedom of expression or privacy. Or they may
be property and civil rights, such as freedom of contract or classic property rights.75
The Supreme Court of Canada recently considered the relationship between
copyrights and classic property rights in its landmark decision in Thberge.76
Although the case did not raise constitutional issues per se, it provides insight into the
overlap between matters of copyrights and matters of property and civil rights. An
72 Handa, supra note 2 at 69.
73 Marriage Reference, supra note 30 at para. 28.
74 Jeremy Waldron, From Authors to Copiers: Individual Rights and Social Values in Intellectual
Property (1993) 68 Chicago-Kent L. Rev. 841 at 842.
75 Classic property rights flow from ownership of physical, tangible, or corporeal things: see
Jeremy de Beer, Reconciling Property Rights in Plants (2005) 8:1 J. World Intellectual Property 5.
76 Supra note 6.
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owner of a poster had transferred ink from paper to canvas, allegedly infringing the
artists copyright by doing so. In the Courts words, this was a basic economic
conflict between the holder of the intellectual property in a work and the owner of the
tangible property that embodies the copyrighted expressions.77
Ordinarily, the scope of the former right is a matter of federal jurisdiction over
copyrights, while the scope of the latter right would be for provincial legislators to
determine as a matter of property and civil rights. Where conflicts exist, the Supreme
Court has noted that the courts must maintain an appropriate balance … between the
federal and provincial heads of power.78 Although this sort of balance is different
from the typical balancing exercise concerning copyright law and policy, it would be
fair to say that balance is constitutionally entrenched in copyright law.
Since copyrights, by definition, are constraints on other property and civil rights,
copyrights legislation will always trench on provincial jurisdiction to some extent.
The 1894 decision in Tennant v. Union Bank of Canada79 touched upon the trenching
doctrine in respect of copyrights legislation:
[A]mong the enumerated classes of subjects in sect. 91, are Patents of
Invention and Discovery, and Copyrights. It would be practically impossible
for the Dominion Parliament to legislate upon either of these subjects without
affecting the property and civil rights of individuals in the provinces.80
On its face, this statement resembles a comment made by the Federal Court, Trial
Division in Bishop (T.D.):
Just as Parliament can, for example, in the exercise of its criminal law power
prohibit the use of firearms and thus seriously impair property rights in such
firearms, so can it impair rights in tangible property used for the infringement
of copyright.81
A careful examination of constitutional principles, however, reveals that the latter
statement is not entirely true.
Despite the purported mutual exclusivity of sections 91 and 92, overlap between
is not an uncommon problem.82
federal and provincial
Unfortunately, the jurisprudence is ambiguous as to the exact manner in which to
assess constitutional validity at this stage of the analysis.83 Given the Supreme Courts
legislative powers
77 Ibid. at para. 33.
78 Reference Re Firearms Act, [2000] 1 S.C.R. 783 at para. 48, 185 D.L.R. (4th) 577, 2000 SCC 31
[Firearms Reference cited to S.C.R.] [emphasis added].
79 (1893), [1894] A.C. 31 (P.C.).
80 Ibid. at 45.
81 Bishop (T.D.), supra note 27 at 367-68.
82 See e.g. Friends of the Old Man River Society v. Canada (Minister of Transport), [1992] 1 S.C.R.
3, 88 D.L.R. (4th) 1; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161, 138 D.L.R. (3d) 1
[Multiple Access cited to S.C.R.].
83 See Patrick J. Monahan, Constitutional Law, 2d ed. (Toronto: Irwin Law, 2002).
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J.F. DE BEER CANADAS PRIVATE COPYING LEVY
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overriding advice that the approach must be flexible rather than technical or
formalistic,84 the following discussion simply highlights the key considerations.
One possibility is to apply the double-aspect doctrinesome aspects of the law
might relate to copyrights and others might relate to property and civil rights. If that
were the case, both Parliament and provincial legislators could legislate on the
matter.85 Because this doctrine undermines the idea that enumerated powers are
reserved exclusively for one or the other level of government, it is rarely used, though
not extinct.86
Alternatively, if the impugned legislation is, in pith and substance, a matter of
copyrights, there is no constitutional problem. Parliament can exercise its powers to the
fullest extent necessary for effective regulation of areas within its competence. The issue
would be how far Parliament can go before the pith and substance actually becomes
property and civil rights, at which point the link to federal authority is severed.87 At some
point, because of their purpose or effect, putative copyright provisions may become in
pith and substance a provincial matter of property and civil rights.
If the matter were in pith and substance within provincial jurisdiction, the
legislation would seem to be constitutionally invalid. It might still be salvaged,
however, if it is necessarily incidental to an overall valid federal scheme. There are
three questions to consider: do the provisions trench into provincial jurisdiction, are
they part of an overall valid federal legislative scheme, and are they sufficiently
integrated with the scheme to be upheld?88 Of these, the crucial question will usually
be whether the impugned provisions are sufficiently integrated with the Copyright
Act to withstand scrutiny.
In different contexts, courts have set down different requirements for sufficient
integration. As put by Chief Justice Dickson, a court must decide what test of fit is
appropriate … .89 On the facts of General Motors, the Court upheld the impugned
provision as functionally related to the general objective of the legislation.90 The
Court contrasted the facts to those in Vapor Canada, stating that the provision in
S.C.R.].
84 R. v. Morgentaler, [1993] 3 S.C.R. 463 at 481, 107 D.L.R. (4th) 537 [Morgentaler cited to
85 If there is both federal and provincial legislation, the federal legislation is paramount to the extent
a conflict exists: Saskatchewan v. Rothmans, Benson & Hedges Inc., [2005] 1 S.C.R. 188 at para. 11,
250 D.L.R. (4th) 411, 2005 SCC 13.
86 Bell Canada v. Quebec (Commission de la sant et de la scurit du travail), [1988] 1 S.C.R. 749
at 845-55, 51 D.L.R. (4th) 161; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2
S.C.R. 59 at 64-66, 44 D.L.R. (4th) 663; Multiple Access, supra note 82 at 181-82; Hodge v. The
Queen (1883), 9 App. Cas. 117 (P.C.).
87 Vapor Canada, supra note 15.
88 Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), [2002] 2
S.C.R. 146, 210 D.L.R. (4th) 577, 2002 SCC 31 at para. 58.
89 General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641 at 668, 58 D.L.R.
(4th) 255 [General Motors cited to S.C.R.].
90 Ibid. at 684.
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question in that case was entirely unconnected to the subject of the legislation.91
Other possible tests include rational, functional connection,92 ancillary,93
necessarily incidental,94 and truly necessary,95 an integral part,96 or a
complementary provision.97 In essence, there is a spectrum of possible tests, with
varying degrees of scrutiny, that one could apply to determine whether a provision is
sufficiently integrated with an overall valid legislation.
Precisely which test of fit will be applied turns on just how far the provisions
have trenched into provincial domain, and how integral they are to the overall valid
federal scheme.98 A provision that encroaches marginally may only require a
functional relationship, whereas a highly intrusive provision calls for a stricter
test.99 The more the provision creeps into the other governments jurisdiction, the
harder it will be to sustain its validity.
With the foregoing discussion in mind, it is now appropriate to fully consider the
constitutionality of Canadas private copying levy.
To determine whether
II. Canadas Private Copying Levy
the
constitutional division of powers, one must characterize its leading feature or true
character, its pith and substance.100 Generally, this task requires consideration of
two things: the laws purpose, and its effect.
is validly enacted according
legislation
to
A. Purpose
Around the world, levies vary in scope.101 The rationale for private copying levies
91 Ibid. at 690.
92 Papp v. Papp (1969), [1970] 1 O.R. 331 at 336, 8 D.L.R. (3d) 389 (C.A.); Multiple Access, supra
93 Peel (Regional Municipality) v. MacKenzie, [1982] 2 S.C.R. 9 at 17, 139 D.L.R. (3d) 14.
94 R. v. Fowler, [1980] 2 S.C.R. 213 at 226, 113 D.L.R. (3d) 513.
95 Ibid. at 22; R. v. Thomas Fuller Construction Co. (1958) Ltd. (1979), [1980] 1 S.C.R. 695 at 713,
note 82 at 183.
106 D.L.R. (3d) 193.
96 Northern Telecom Ltd. v. Communications Workers of Canada (1979), [1980] 1 S.C.R. 115 at
138, 98 D.L.R. (3d) 1; Clark v. Canadian National Railway Co., [1988] 2 S.C.R. 680 at 708, 54
D.L.R. (4th) 679.
97 Vapor Canada, supra note 15 at 159.
98 Ibid.; see also General Motors, supra note 89 at 668.
99 General Motors, ibid. at 669.
100 Morgentaler, supra note 84 at 481.
101 See Jeremy F. de Beer, The Role of Levies in Canadas Digital Music Marketplace (2005) 4
C.J.L.T. 153 [de Beer, Role of Levies]; Jeremy F. de Beer, Locks & Levies (2006) 84 Denv. U.L.
Rev. 143; P. Bernt Hugenholtz, Lucie Guibault & Sjoerd van Geffen, The Future of Levies in a Digital
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J.F. DE BEER CANADAS PRIVATE COPYING LEVY
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also varies between countries, basically along common law and civilian lines.102
Canadas private copying levy came into force on 19 March 1998 as Part VIII of the
Copyright Act.103 It expressly allows individuals to copy sound recordings for private
use onto blank audio recording media. It also imposes liability upon manufacturers
and importers of blank media, requiring them to pay a levy when such is proposed by
certain music creators and certified by the Copyright Board. In short, the regime
substitutes exclusive copyrights with a unique right to collect remuneration from third
parties not directly involved in the use of copyright-protected works.
The broad object of Canadas private copying levy was to provide compensation
to certain authors, performers, and producers of music whose exclusive copyrights
were believed to be pragmatically unenforceable at the time the regime was enacted.
According to Justice Linden:
The purpose of Part VIII of the Act is mainly an economic onethat is, to
fairly compensate artists and the other creative people for their work by
establishing fair and equitable levies.104
Though the rationale that private copying cannot be controlled by legal or
technological means is no longer applicable,105 the levy also overcomes problems in
allowing copyright owners to monitor and control Canadians private, non-
commercial habits.
There are unsettled questions about what sort of private copying the levy scheme
was intended to envelop. This is one example where the constitutional question is
inextricably linked with the interpretation of other aspects of the regime. The broader
the levy, the greater the impact on property and civil rights. The narrower and more
precise the levy, the more closely connected it is to copyrights.
It is unclear whether or not Parliament intended the private copying regime to
apply to the matter of private copying in todays digital music marketplace. On one
hand, according to transcripts of committee meetings preceding the enactment of the
Environment (Amsterdam: Institute for Information Law, 2003) c. 4, online: Instituut voor
Informatierecht
102 In civilian jurisdictions, the initial view was that creators did not have the legal right to control
private copying. An exemption/levy scheme was introduced in response to this lack of legal control. In
common law jurisdictions, the initial view was that creators did not have the practical ability to control
private copying. An exemption/levy scheme was introduced in response to this lack of practical
control: Andrew F. Christie, Private Copying Licence and Levy Schemes: Resolving the Paradox of
Civilian and Common Law Approaches (Melbourne: Intellectual Property Research Institute of
Australia, 2004) at 3-7 online: Intellectual Property Research Institute of Australia
103 Supra note 1, as am. by S.C. 1997, c. 24, ss. 50, 53; Order Fixing the Dates of the Coming into
Force of Certain Sections of the Act, P.C. 1998-365, C. Gaz. 1998.II.1150.
104 AVS Technologies v. Canadian Mechanical Reproduction Rights Agency (2000), 7 C.P.R. (4th)
68 at 71 (F.C.A.).
105 See Hugenholtz, Guibault & van Geffen, supra note 101.
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levy, the matter addressed was actually quite specific: the use of blank tapes to copy
music for private use.106 Although blank CDs and other digital technologies were
envisioned at the time, they were not the matter of immediate concern in 1997. It is
also clear that the jukebox or record store in the sky was foreseen, but witnesses
stressed that a levy could not replace the revenues that might be generated by a
market for digital downloads.107 On the other hand, the Copyright Act defines media
subject to the levy in a way that could hardly be more broadly drafted, including
media ordinarily used for private copying regardless of its material form.108
In CPCC, the Federal Court of Appeal decided that memory in digital audio
recorders, such as Apples iPod, is not subject to the levy.109 It overruled the
Copyright Board, which had approved a levy on such memory. A key reason for the
courts decision was deference to Parliament.110 Unfortunately, by passing the hot
potato to government policy-makers, the court perpetuated uncertainty concerning the
levys purpose. This left the door open for CPCC to once again propose a levy that
would impact digital audio recording devices.111 The most recently proposed tariff, for
the years 2008-2009, would levy devices themselves, as opposed to memory therein.
It is arguable that the CPCC is splitting hairs to avoid the doctrine of res judicata.
Nevertheless, this demonstrates that serious questions linger about the purpose of the
levy.
Banal statements about compensating rights-holders are unhelpful. It is
exceedingly difficult to use such statements to assess the validity of the levy in a
constitutional context. For that reason, it is better to focus on the levys effects, not
just its purpose.
B. Effect
In CPCC, the Federal Court of Appeal disposed of the division of powers
argument as follows:
106 Parliament, Standing Committee on Canadian Heritage, Evidence of the Committee, 35th Parl. (3
October 1996).
107 Parliament, Standing Committee on Canadian Heritage, Evidence of the Committee, 35th Parl.
(22 October 1996); Parliament, Standing Committee on Canadian Heritage, Evidence of the
Committee, 35th Parl. (7 November 1996).
108 Copyright Act, supra note 1, s. 79. See also Government of Canada, Parliamentary Sub-
committee on the Revision of Copyright, Charter of Rights for Creators (1985), advocating for a
technologically neutral levy.
109 CPCC, supra note 7.
110 CPCC, ibid. at para. 164.
111 Supplements, C. Gaz. 2007.I (Statement of Proposed Levies to Be Collected by CPCC on the
Sale, in Canada, of Blank Audio Recording Media for the Years 2008-2009), online: Canada Gazette
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J.F. DE BEER CANADAS PRIVATE COPYING LEVY
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The argument essentially boils down to this. While Part VIII legalizes
private copying and provides a practical means for rewarding rightsholders, the
price of doing so is arguably borne, in part, by persons who do not private copy.
…
[T]he pith and substance analysis requires that, viewed from its purpose and its
legal effects, every aspect of the regime must be tightly linked to Parliaments
goal to compensate rightsholders in respect of the reproduction of music for
private use. In my view, all the provisions of Part VIII are so linked.
is extraneous to that goal.112
The [applicants] have been unable to point to any provision in Part VIII that
With respect, this conclusion overlooks several characteristics of the levy that have
considerable effects on persons who have nothing to do with the private copying of
music. Because the following points were not presented to the Federal Court of
Appeal in CPCC, it is possible that another court would reconsider the matter.
Moreover, because the court interpreted the private copying scheme not to apply to
memory in digital audio recorders, it did not consider the constitutionality of a levy
on such memory, let alone a levy on devices.
Legislation in respect of copyrights normally imposes liability only upon actual
users of copyright-protected works. In some circumstances, one can be liable for
authorizing copyright infringement or subject to secondary liability for knowingly
dealing with infringing works.113 It is fairly clear, however, that blank media
importers and manufacturers are not liable for copyright infringement by their own
acts, nor the ultimate acts of consumers of their products.114 Nevertheless, the private
copying levy directly targets these third parties.
This led the High Court of Australia to distinguish private copying levies from
traditional copyright royalties.115 Despite ruling that the levies were not copyright
royalties, seven Justices of the High Court agreed that the levies were in respect of
copyright within the meaning of subsection 51(xviii) of the Australian constitution.116
The plaintiffs had tried to analogize the levy to a law which sought to impose an
exaction on the first sale of paper upon the basis that it could be employed to
reproduce a literary work in breach of copyright.117 The court, however, held that the
Australian levy had a sharper focus than a levy on blank paper.118 Though it is
112 Ibid. at paras. 36-38.
113 Copyright Act, supra note 1, s. 27.
114 See CCH, supra note 6 at paras. 39-46; SOCAN, supra note 6 at paras. 86-103.
115 Australian Tape Manufacturers, supra note 63. The four-member majority of the court
distinguished the levy from a copyright royalty for two reasons. First, the payers of the levy (tape
vendors) receive no benefit, advantage, or licence in exchange for payment of the levy. Second, the
payment is not in consideration of, or associated with, the grant by payees of the levy of a right to
copy works or the exercise by anyone of such a right (ibid. at 497-99).
116 Supra note 61, s. 51 (xviii).
117 Australian Tape Manufacturers, supra note 63 at 518.
118 Ibid. The court ultimately struck down the levy as an unconstitutional tax.
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tempting to assume that the same is true in respect of the Canadian levy, there are
numerous and substantial distinctions between the former Australian and present
Canadian private copying regimes.119
For one, the High Court believed it was obvious that in Australia private copying
resulted in a loss of sales of sound recordings.120 No doubt there are some consumers
who may have bought music but for the fact that they could instead copy it from a
friend. But it is important to be precise. Private copying for personal use only (not
including copying for anyone else, such as ones family, friends, or strangers online)
may not be so detrimental. How many people would really choose to purchase a
second or third copy of a CD they already own? Generally, the true impact of private
copying is far from obvious.
Second, the High Court pointed out that the levy was only applicable to blank
tapes that are ordinarily used for the private copying of music, and that blank tapes
of a kind which are ordinarily used for other purposes are excluded from the levy.121
In other words, a blank tape could have only one ordinary use under the Australian
regime.
The Canadian act uses the same word, but it has been interpreted very differently.
The Copyright Board held ordinarily to include any non-negligible music
copying:
[A] person who made two copies of sound recordings onto a type of medium in
each of the last two years ordinarily uses that type of medium for private
copying, even though that same person may well use many more such media
for other purposes: a medium can have more than one ordinary use.122
The interpretation of ordinarily as meaning, in effect, not extraordinarily is
logically and grammatically plausible, and indeed was held by the Federal Court of
Appeal to be not patently unreasonable. This interpretation contradicts the High
Courts views, however, and dramatically broadens the effect of the levy in Canada.
The Australian regime therefore had a much sharper focus than Canadas.
The Canadian interpretation means that a levy can be applied to a medium on the
basis of raw numbers, irrespective of the proportion used for purposes that have
nothing to do with music. Moreover, as is apparent from the Copyright Boards
example, the numbers need not be high to trigger the levy.
119 On whether or not the levy is a tax, there seem to be fewer relevant distinctions between
Canadian and Australian constitutional requirements and between the details of each private copying
regime.
120 Australian Tape Manufacturers, supra note 63 at 518.
121 Ibid.
122 Private Copying 1999-2000 (17 December 1999), (Copyright Board of Canada), online:
Copyright Board of Canada
added] [Private Copying 1999-2000].
J.F. DE BEER CANADAS PRIVATE COPYING LEVY
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blank CDs. The Copyright Board held that
The point is explained most easily through the example of the current levy on
between 80 per cent and 90 per cent of individual consumers who buy blank
CDs do so in some measure for the specific purpose of copying pre-recorded
music. Moreover, it appears that over 40 per cent of individuals use recordable
CDs for no other purpose.123
Once other uses and other purchasers are factored in, however, the highest estimates
are that roughly one-third of all blank CDs are used to copy music.124 At the time of
the Copyright Boards first decision, when the levy was initially imposed on blank
CDs, the proportion of CDs used for copying music was even smaller.125 Now, nearly
four years after the Copyright Boards last substantive hearing into the matter, it
would not be surprising if the proportion of total CDs used to copy music privately
were falling rapidly as digital devices like the iPod gain popularity. The Copyright
Board is scheduled to begin its next hearings in 2007, and evidence on this issue will
no doubt be presented.
The levy rate is obviously discounted to reflect the proportion of blank CDs used
for other purposes. Nevertheless, the point remains that purchasers of two-thirds of all
blank CDs subsidize those few consumers who use these media heavily for copying
music. Simply put, the levy has a much larger effect on persons who do not engage in
private copying than on persons who do.
The statistics are similar in respect of electronic memory cards, which are
proposed to be subject to a levy in 2008-2009. Even if it is true, as the CPCC claims,
that as much as 25% of content copied onto memory cards is music, three quarters of
content copied onto memory cards is not music.126 The CPCC also claims that 14% of
respondents used memory cards only to copy music. The organization does not say
how many respondents use memory cards to store only content other than music. It is
likely, if not certain, that 100% of the content stored on memory cards by many
people, such as digital photographers, is not music.
Though relatively more people might use devices such as iPods for music-related
purposes, problems arise as functions converge. Such devices are used not only (and
perhaps not even primarily) for music. They store digital photographs, movies and
123 Private Copying 2003-2004 (12 December 2003), (Copyright Board of Canada) online:
Copyright Board of Canada
Copying 2003-2004].
124 The data is confusing, because there are different proportions to consider (including consumer
vs. business purchasers and music vs. non-music uses). There are also different statistics for different
formats, not to mention conflicting evidence on the accuracy of different figures submitted by
different parties: Private Copying 2003-2004, ibid.
125 Private Copying 1999-2000, supra note 122 at 32.
126 Canadian Private Copying Collective, Backgrounder on the Proposed Private Copying Tariff
2008-2009, online :
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television programs, text documents, computer programs, and all sorts of other data.
Often, they are also mobile phones, Global Positioning Systems, agendas and/or
personal planners. Constitutionally, the effects of a levy on multi-functional devices
cannot be ignored.
Third, and intimately related to the above point, the High Court of Australia noted
that the Australian legislation contained an exemption mechanism for persons who
use blank media for non-music purposes.127 In Canada, the Copyright Board and the
Federal Court have looked closely at the possibility of an implied exemption for those
individuals or businesses that use blank media for data storage or digital photography.
After careful consideration, both concluded that no such reprieve exists, as the
Supreme Court has been consistently clear that exemptions cannot be implied into the
Copyright Act.128
It should be noted that despite the Federal Court of Appeals endorsement and
elaboration of the Copyright Boards interpretation of the regime as containing no
authorized exemption scheme, the organization representing beneficiaries of the
levies (the Canadian Private Copying Collective) has initiated an ad hoc zero-rating
program whereby it may choose to waive the levies for certain entities, when it
decides that would be appropriate. As the program is not authorized under the statute,
neither the Copyright Board nor the courts have jurisdiction to monitor the program
to ensure decisions are made according to principles of natural justice or fairness.
Unlike in Australia, the program can hardly be taken into account when assessing the
design of the regime from a constitutional perspective.
Fourth, in Australian Tape Manufacturers the High Court made note of the
obvious practical difficulty in attempting to attach obligations to the use of blank
tapes in the hands of the user129 to justify the levy on third-party proxies. This
assumption is no longer valid. By acknowledging the ability of technological
protection measures and end user licence agreements to authorize private copying, the
industry has precluded itself from arguing that levies are a necessary response to the
impossibility or impracticality of licensing music for private copying. In fact, major
record labels currently require digital music distributors to take all reasonable
technological and other steps to ensure copies made by end users are for personal use
only. Purchasers of music from Apples iTunes Store specifically pay for the right to
make a certain number of private copies. This further distinguishes the Australian
High Courts ruling from the circumstances in Canada today.
There are some similarities between the Canadian and former Australian regimes.
Of course, the underlying concept is the same. Both schemes involved the discretion
of an administrative agency in calculating the levy rate. The Australian regime
127 Australian Tape Manufacturers, supra note 63 at 518.
128 See e.g. Bishop (S.C.C.), supra note 27 at 481-85; Thberge, supra note 6 at para. 73; SOCAN,
supra note 6 at para. 107.
129 Australian Tape Manufacturers, supra note 63 at 518.
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included a fixed formula with variable components, whereas the Canadian Copyright
Board has the broad mandate to make the levies fair and equitable. Such flexibility
has been key in decisions upholding the schemes validity.130
Overall, however, the distinctions in the details are too great to overlook.
Especially given the varying interpretation of ordinarily, the absence of any
exemption mechanism, and the inapplicability of conventional assumptions about
licensing, it is very difficult to find the same connection between the purpose and
effect of the Canadian levy. The Canadian net is cast much wider than the Australian
one ever was.
To overcome the problems with over-breadth, the levy need not be struck down
entirely. If there are two possible interpretations of a statute, one of which will render
the legislation constitutionally valid and one of which will render the legislation
constitutionally void, obviously the former should be preferred.131 The Copyright Act
could be reinterpreted to render the scheme sufficiently tight and precise, and
therefore valid copyright law.
At minimum, this would require substituting the current interpretation of
ordinarily with one more akin to the former Australian definition. Doing so would
have the practical result of eliminating the levy on blank CDs and likely precluding
the introduction of a levy on memory cards and multi-functional devices, which is
certainly a blunt way to solve the underlying problem. Alternatively, a court could
imply an exemption scheme of the sort that was found in Australias legislation. This
approach would presumably legitimize and give the Copyright Board jurisdiction to
monitor the currently unauthorized zero-rating program as part of the terms and
conditions of the tariff.132 That could become a logistical nightmare, and it is
unlikely that the Copyright Board would take such measures without legislative
instructions or a stamp of judicial approval from the Supreme Court. Note that the
regulatory powers of the Governor-in-Council built into the regime may offer a
compromise solution that would not require the legislative process to start over from
scratch.
C. Summary
If one adopts a view of the copyrights clause as revolving around the exclusive
rights of authors, then the purpose of the levy may be too far on the periphery to
130 See ibid.; Private Copying 2003-2004, supra note 123 at 458-65; CPCC, supra note 7 at paras.
7, 61-67.
131 R. v. MacKay, [1965] S.C.R. 798 at 804, 53 D.L.R. (2d) 532; Ontario (A.G.) v. Reciprocal
Insurers, [1924] A.C. 328 at 345, (sub nom. Re Reciprocal Insurance Legislation) [1924] 1 D.L.R. 789
(P.C.); Grald-A. Beaudoin, La Constitution du Canada, 3d ed. (Montreal: Wilson & Lafleur, 2004) at
338.
132 See Neighbouring Rights Collective of Canada v. Society of Composers, Authors and Music
Publishers of Canada (2003), [2004] 1 F.C. 303, 229 D.L.R. (4th) 205 (C.A.).
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withstand constitutional scrutiny. Moreover, the levy has a significant effect on
manufacturers and importersnot to mention consumers of blank mediawho have
nothing to do with the private copying of music. The legal and practical effect of the
Canadian levy, therefore, is to trench rather deeply into provincial jurisdiction. If the
scheme only, or even primarily, targeted persons directly connected with the private
coping of music, it would be much easier to sustain. As is, however, a strong
argument can be made that Canadas private copying levy is in pith and substance
more a matter of regulating property and civil rights than copyrights.
Assuming that is the case, is the levy sufficiently integrated with an overall valid
scheme to be sustained as necessarily incidental to other copyrights legislation? As
explained above, the test of fit depends upon two factors: the degree to which the levy
trenches over property and civil rights, and the necessity of the levy to a valid
copyrights scheme.
Applying the functionally related test for integration, the levy could perhaps be
upheld if it was successfully argued that the purpose of the right to remuneration is to
compensate and encourage authors and other creators. It is possible to argue (though
not convincingly) that the levy scheme merely rounds out the Copyright Act by
providing remuneration to creators who might not otherwise have a pragmatic ability
to license their exclusive rights. Such being the same objective as the Copyright Act as
a whole, the levy is a tool permitting the statute in general to be more workable and
efficient. Thus, it could be distinguished from the broad civil action established under
subsection 7(e) of the Trade Marks Act, which was considered in Vapor Canada.
Presumably, one could say that Parliament would be competent to take away the
right to control private copying altogether, for example, by specifying the activity as
fair dealing. Or Parliament could have simply expanded the notion of authorization or
contributory or secondary infringement to make blank media importers and
manufacturers liable for copyright infringement, rather than merely payment of
levies. If Parliament could do these things, why could it not instead choose the middle
ground solution of levies?
The short answer is that either of these alternative solutions are distinguishable
from the path Parliament chose. Eliminating liability altogether would not have the
same effect on property and civil rights that the levy currently does. The other
extremeimposing actual copyright liability on third partiesmight be permissible,
but that would still represent a dramatic shift in Canadian copyright law and policy,
which could require constitutional scrutiny.
The existence of alternative solutions itself demonstrates that a levy is by no
means truly necessary. It does not have an intimate connection with the rest of
the Copyright Act, and is certainly not pivotal. The Copyright Act existedand
operated reasonably wellprior to the enactment of the levy.133 The act would
133 Even if the Copyright Act operated for many years without a provision comparable to those
found in Part VIII, there is no constitutional impediment to amending the remedies provisions, and
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provide extensive and effective protection for copyrights with or without the levy. In
general, the levy is easily severable from the rest of the statute.
Most importantly, the levy is simply too broad. The problem isnt that Parliament
is prohibited from enacting any levy, but that this levy goes too far. That view is most
consistent with the conclusions of the High Court of Australia. As presently
interpreted, the levy trenches heavily into property and civil rights. This fact also
suggests a high burden in respect of the degree of integration with a valid copyrights
schemeperhaps approaching the stringent test applied in Vapor Canada. On
balance, it seems difficult to conclude that the levy could pass muster on this
standard.
levy must be either
reinterpreted more narrowly, or struck down entirely, it is worthwhile to ask if it can
be justified by any other head of federal power under section 91 of the Constitution
Act, 1867.
that Canadas private copying
Before concluding
III. Other Federal Powers
A. Peace, Order, and Good Government
Historically, Parliament had jurisdiction to pass legislation on any matter that did
not come within the exclusive jurisdiction of the provinces.134 Through the years,
three distinct concepts have developed: new matters, emergencies, and issues of
national importance.
Courts are now very reluctant to allow federal jurisdiction over new matters, as
ostensibly new issues usually touch upon some existing heads of power.135 There are
certainly new forms of creative expression and new technologies in response to which
Parliament has enacted the levy. But these are not new matters for constitutional
purposesthese issues can be linked to existing heads of power. As for the
emergency power, the Court last applied this in Reference Re Anti-Inflation Act.136 It
would be inapplicable here, since the levy is not temporary.
It remains that if the levy is to be a valid exercise of the POGG power, it must
meet the test set in R. v. Crown Zellerbach Canada Ltd.137 It must have a singleness,
distinctiveness and indivisibility that clearly distinguishes it from matters of
there are no reasons why remedies available should be frozen in time (General Motors, supra note 89
at paras. 67-86).
134 Hogg, supra note 53 at 17-1 17-4.
135 The Supreme Court last applied this concept in R. v. Hauser, [1979] 1 S.C.R. 984 at 1000-1001,
93 D.L.R. (3d) 193, where the Court held that the Narcotic Control Act was a valid expression of
Parliaments peace, order and good government (POGG) power because it dealt with a genuinely
new problem.
136 [1976] 2 S.C.R. 373, 68 D.L.R. (3d) 452.
137 [1988] 1 S.C.R. 401 at 431-32, 49 D.L.R. (4th) 161.
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provincial concern and a scale of impact on provincial jurisdiction that is reconcilable
with the fundamental distribution of legislative power under the Constitution.138 It is
almost inconceivable that the private copying levy could pass on this test.
Finally, it is arguable that there is a general federal authority to implement
international treaties into domestic law under the POGG power.139 There is, however,
no international treaty requiring a private copying regime. To the contrary, there is
concern that Canadas private copying regime may violate our international
obligations because it creates a perhaps unauthorized exception and treats Canadian
and foreign creators unequally.140 As no treaty specifically deals with private copying,
the question of whether there exists a specific federal power to implement treaties is
best left for another article.141
B. Trade and Commerce
Parsons142 established that intraprovincial commerce is a matter of provincial
jurisdiction under subsection 92(13). Parliaments jurisdiction over trade and
commerce is confined to interprovincial trade and general trade.
There is no doubt that creating and selling music is a commercial endeavour. In
the case of the music industry, however, the sale of music cannot be said to be
interprovincial. Perhaps the manufacture or importation of blank media can be
classified as interprovincial. But to make this argument requires a degree of double-
talk. That is, one would have to argue that the regime is in pith and substance about
copyrighted music and not blank media, so as to be copyright law. Simultaneously, it
would have to be argued that it was about blank media, so as to be trade and
commercean apparent paradox.
More reasonably, any intervention by Parliament would have to be justified under
the second branch of the jurisdiction over trade and commerce. For federal legislation
to be a valid exercise of the Parliaments jurisdiction over the general trade branch
of trade and commerce, the act or section must be: (1) part of a general regulatory
scheme; (2) monitored by the continuing oversight of a regulatory agency; (3)
concerned with trade as a whole rather than with a particular industry; (4) of a nature
that the provinces jointly or severally would be constitutionally incapable of enacting;
and (5) jeopardized by the failure to include one or more provinces or localities in a
legislative scheme.143 The levy may have some of these hallmarks. However, the right
to remuneration applies only to a limited group of creators, and the levy applies only
138 Ibid. at 432.
139 Hogg, supra note 53 at 11-11 11-13.
140 de Beer, Role of Levies, supra note 101 at 158-59.
141 See de Beer, Paracopyright Laws, supra note 12.
142 Supra note 58.
143 General Motors, supra note 89 at 661, 662.
J.F. DE BEER CANADAS PRIVATE COPYING LEVY
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to certain media. It does not deal with all copyrighted content, or to all types of blank
media. This suggests the levy is not a matter of general trade and commerce.
761
C. Taxation
The federal government would have been permitted to enact the private copying
levy as a tax if it chose to do so. It would have needed to comply, however, with
section 53 of the Constitution Act, 1867, which enshrines the unwritten principle of
no taxation without representation by requiring the government to table a bill
before the House of Commons through a ways and means measure. Canadas private
copying levy was not introduced in this manner. Therefore, the government would not
seek to justify the levy as an exercise of its taxation powers. To the contrary, to
sustain the validity of the levy, the federal government must argue that the levy is not
taxation, but is instead a copyrights matter.
The Federal Court of Appeal decided that the levy was not a form of taxation, as
defined by the Supreme Court of Canada.144 A preliminary look at the courts analysis
indicates that further critical study on this point is warranted. It is simply not possible
to give the issue the close attention it deserves in this paper. A full discussion of
whether the levy is a matter of copyrights or taxation is left for another day.
Conclusion
This paper has explored the scope of Parliaments authority under the copyrights
clause of the Canadian constitution. Particular consideration was given to the overlap
between copyrights, which are within federal jurisdiction, and property and civil
rights, which are the legislative domain of the provinces.
Essentially, legislative authority over the private copying levy boils down to this.
Pursuant to the copyrights clause, Parliament may enact legislative provisions that
trench over property and civil rights so long as the matter remains in pith and
substance copyrights, or is necessarily incidental to a valid copyrights scheme. If,
however, the levy is not in respect of copyrights (because its purpose or effect bring
the pith and substance of the matter within provincial jurisdiction over property and
civil rights) and the levy is insufficiently integral and overly broad to be sustained as
necessarily incidental to a valid copyrights scheme, it is unconstitutional.
As a concrete example, this paper assessed the constitutionality of Canadas
private copying levy. Because the levy has been interpreted very broadly, it is
arguably in pith and substance a matter of property and civil rights. Significant
reinterpretation could narrow the scope of the levy and bring it within federal
144 Recent cases defining taxation include Westbank First Nation v. British Columbia Hydro and
Power Authority, [1999] 3 S.C.R. 134, 176 D.L.R. (4th) 276; Re Eurig Estate, [1998] 2 S.C.R. 565,
165 D.L.R. (4th) 1.
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jurisdiction over copyrights. Otherwise, the levy may not be sufficiently integrated
with an overall valid scheme to withstand scrutiny.
More generally, this paper concluded that Canadas copyrights clause does not
give Parliament carte blanche to enact cultural, economic, technological, or
regulatory policies under the auspices of the Copyright Act. Copyrights legislation
must remain tightly linked to authors cultural creativity, and not unduly compromise
matters of property and civil rights.
