The inclusion of a right to circumvent in the event that the TPM breaks or becomes obsolete is relatively uncontroversial. The U.S. Registrar of Copyrights has included a specific exception for this situation since 2000 and the Australian Parliamentary Review Committee recommended the inclusion of such an exception this year. The exception reflects the recognition that the continual evolution of technology places the investment that consumers make in entertainment and software products at risk in the event that a TPM ceases to function or becomes obsolete. While products do not come with a guarantee to function forever, the law should not impair consumers who seek to circumvent techologies that are no longer supported and thus create a significant barrier to access to their own property.
The current DVD market provides a good illustration of the potential problem. DVDs have become a huge consumer success story with millions of people accumulating large libraries of favourite movies and telephone shows. As the industry introduces next-generation DVD technologies (Blu-Ray, HD DVD, HVD), the prospect that the current DVD libraries might one day become obsolete becomes a distinct possibility (Blu-Ray manufacturers can include backwards compatibility, but are not required to do so). In future years, consumers with a DVD that contains an obscure TPM could easily find themselves unable to access the content for which they have already paid. Unlocking that content will therefore become necessary and consumers should have the right to do so without fear of breaking the law.
Rather than adopting the DMCA approach – which did not include the right within the statute itself but rather added it during the Registrar of Copyrights tri-annual review – Canada should ensure that this circumvention right is included within the law from day one.