Copyright reform is frequently characterized as "modernizing outdated copyright laws" (e.g. see yesterday's excellent Ottawa Citizen's masthead editorial). Leaving aside the fact that Canadian copyright law has undergone two major revisions in less than 20 years (along with several smaller changes), the reality is that the modernization is almost entirely focused on the interests' of a select few industries. Consider the issue of backup copies. Yesterday's post addressed a right of circumvention for backup copies of software, reflecting the need to preserve provisions in the Copyright Act that are nearly 20 years old. Those provisions rightly recognize that software programs are an intangible product that is susceptible to loss. Creating a backup copy right is a simple way to allow consumers to protect their investment.
If the government is serious about modernizing the Copyright Act, it could do worse than to start by modernizing the backup copy provision.
In 1988, backing up digital data meant backing up software programs. Today, digital data includes CDs, DVDs, and video games. All of these products suffer from the same frailties as software programs, namely the ease with which hard drives become corrupted or CDs and DVDs scratched and non-functional. From a policy perspective, the issue is the same – ensuring that consumers have a simple way to protect their investment.
"Modernizing" copyright law should include bringing this provision into the 21st century by expanding the right to make a backup copy to all digital consumer products. As with the backing up software programs, TPMs quickly emerge as a concern since they can be used to block the ability to make such copies. Copyright law should be amended to permit consumers to make backup copies of their digital products, accompanied by a circumvention right to ensure that backup copying is not blocked by the combination of TPMs and anti-circumvention legislation.