Given that my column today focuses on the WIPO Broadcast Treaty, the issue of time shifting and DRM comes to mind. The concept of time shifting arose from the U.S. Supreme Court decision involving the legality of the Sony Betamax machine. Arguments before the court focused on the fact that taping television programs simply enabled users to shift the time when they watch the taped program. More than 20 years later, the VCR (and increasingly DVRs and PVRs) are commonplace and consumers give little thought to the legal consequences of copying television programs.
While such activity is protected in the U.S., there is nothing in the Copyright Act in Canada that would expressly permit time shifting.
Canada is not alone in that regard – Australia faces the same issues and recently proposed an exception to allow individuals to make copies of television shows for viewing at a later time. The "modernization" of copyright in Canada should obviously address this issue as well, either by expanding the fair dealing user right such that home television taping would be permitted (as Telus recently advocated in a letter to Canadian Heritage Minister Bev Oda) or by establishing a specific user right to time shift.
With a new time shifting user right in hand, the government will also need to ensure that the right is not rendered irrelevant through anti-circumvention legislation. Indeed, the WIPO Broadcast Treaty envisions providing specific legal protection for the use of technological protection measures on broadcasts, creating the prospect that the ability to time shift will be blocked by broadcasters who can then use anti-circumvention legislation to prohibit attempts to circumvent broadcast controls. A quick look at Canadian discussion lists devoted to digital cable suggests that this is already happening, as many users note that restrictions on digitally taping programs seem to come and go. Time shifting is well accepted practice and Canadian law needs an explicit time shifting right accompanied by a parallel circumvention right that preserves the ability to time shift.