On August 6, 2020, Trump issued , prohibiting the use of TikTok in the U.S. after September 20, 2020. The order stated that TikTok collects sensitive personal data from Americans that could be used by the Chinese government and thus poses significant security threats to the U.S. On August 14, Trump issued , demanding that ByteDance “divest all interests and rights” in TikTok’s American operations. Trump’s executive orders spurred to purchase TikTok’s operations in the U.S.

The fight over TikTok’s ownership raises at least two legal concerns for Canada to consider. First, the issue of the state’s regulatory power and interventions by the government due to national security concerns is noteworthy. As two MIT researchers , internet-connected products that collect personal data across borders are ubiquitous. Invoking national security concerns as the main reason for banning ��trans-border products could quickly escalate into , which would not be in any country’s (or company’s) interest.

Due process is also a concern in this case. On August 24, 2020—soon after Trump’s executive order for divestiture—TikTok a lawsuit against the Trump administration, that its executive orders are unconstitutional. Notwithstanding its legal merits, the lawsuit alerts us to the necessity of scrutinizing a government’s regulatory discretion. On February 10, 2021, the Biden administration . Although the Biden administration did not completely call off political pressures on TikTok when it removed the immediate divestiture order imposed by the Trump administration, it gave the company some breathing room.

TikTok’s lawsuit against the Trump administration brings forth an important question about the regulatory relationship between the government and technology companies. Should a government�� be allowed to unilaterally evict a company out of its market without due process? Should Canada follow the model set by the former U.S. administration or embrace a different regulatory scheme?

The second important issue in this story is the rights of TikTok users. For many, TikTok has become more than a lighthearted means of entertainment. The platform has provided income for many users. India, a geopolitical rival of China, where TikTok also happened to be wildly popular, on June 29, 2020. On March 11, 2021, Pakistan banned TikTok for the second time on the grounds that . These bans bring forth concerns about freedom of speech infringements. India’s ban has also cost many Indian citizens, whose self-made videos attracted tens of thousands of views, . The question is, should governments be held liable for losses of income resulting from their banning of a popular app such as TikTok?

Canada may have to confront similar questions, especially regarding technological products made by Chinese companies. It is not too early to start identifying the best legal tools to regulate Canada’s technology market, .

Written by Jingcai Ying, IPilogue Contributing Writer and J.D. student at Osgoode Hall Law School (Class of 2023).

The post The US-China Fight Over TikTok and Its Lessons for Canada appeared first on IPOsgoode.

Professor Emir Aly Crowne-Mohammed and Yonatan Rozenszajn argue in their article, that the Digital Rights Management (DRM) Provisions in Bill are ultra vires (Latin for "beyond the powers") of Parliament’s power under the Constitution Act.�� Bill C-61 was Canada’s most recent attempt to implement the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).

A similar analysis was also conducted for Bill C-60, when there was a real possibility it would become law��(see Professor Jeremy DeBeer’s ). Both Bill C-61 and C-60 included DRM provisions. They both grant a civil cause of action to a rights holder. If one wants a thorough understanding of this subject, they should read both articles.

DRM is a regime enforced by technological protection measures (TPMs). Briefly speaking, there are three main types. ��Access controls, copy controls, and anti-device measures. Access controls prompt a user for a password or even a specific encryption key before allowing access to the content. Copy controls, as the name implies, prevent a user from copying digital signals. Lastly, anti device measures tie a digital work to a certain device, the most common example being a DVD to its player. Rights owners can place all or some of these measures on a particular digital work.

Professor Crowne-Mohammed and Rozenszajn argue Bill C-61 goes over the threshold of what is necessary in achieving the standards set out in the WCT and WPPT. Perhaps, if Parliament had adhered to the standards of the treaties to only provide legal protection, instead of requiring the protection of technological measures to be incorporated into the Copyright Act, Parliament’s attempt would not be ultra vires. One should not assume that TPMs should be placed in the Copyright Act.����They could be addressed in other areas of the law.

Professor Crowne-Mohammed and Rozenszajn also suggest that the effects of this implementation would be quite drastic. First, this new right to control access under Bill C-61 places copyright in the realm of contracts, and thus under one of the provincial heads of power. Although gives Parliament the power to legislate in regards to copyrights, section 41.1 in Bill C-61 deals with contracts, and thus the right to a civil cause of action, upon a breach. However, this seems to come under the purview of the provinces under section 92(13) of the Constitution Act, which deals with contracts and civil rights. Even so, Professor Jeremy DeBeer states that the provincial and federal heads of power are not held to be watertight, and they do overlap on complex issues. This suggests that amendments or provisions such as section 41.1 can stand if sufficiently integrated into valid federal legislation (such as the Copyright Act), despite going into the province’s domain.

Professor Crowne-Mohammed and Rozenszajn address this argument by considering two more issues. First, is section 41.1 in Bill C-61 part of an overall valid federal legislative scheme? Second, is it sufficiently integrated into that legislation? The answer to the former question is yes, Bill C-61 and its provisions were meant to be an amendment to the Copyright Act. However, the DRM provisions, such as section 41.1 in Bill C-61 are not integrated enough because they are triggered by a contractual breach; not a copyright infringement. Due to this feature, the fair dealing provisions do not apply to DRMs.�� Yet, in CCH, the Supreme Court of Canada, through its consideration of fair dealing factors such as purpose, character, amount, alternatives, nature, and effect of the dealing on the work, made it clear that the principle of ‘fair’ dealing is a critical component of Canadian copyright law. Furthermore, DRM measures could be placed on works that would not fall under the purview of copyright, due to their lack of originality. Hence, Professor Crowne-Mohammed and Rozenszajn conclude that Bill C-61 does not contain fair dealing “limitations or exceptions” and provisions such as section 41.1 are not integrated in the Copyright Act and are are ultra vires of Parliament’s legislative powers.

In summary, the DRM provisions fall under provincial powers. They could be saved if they were sufficiently integrated in the Copyright Act, but their operation upon contractual breach (and hence removal of fair dealing considerations) makes integration with the Copyright Act unlikely.��

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