Not Playing At A Tiny Screen Near You

Friday October 14, 2005
This week's announcement from Apple and ABC/Disney about the availability of ABC shows such as Desperate Housewives and Lost as downloads for US$1.99 for the new video-playing iPod has rightly attracted significant attention.  This is the first step toward another new market - television shows for virtually immediate download.  I expect that many other networks will follow suit, eager to cash in on sales that bridge advertising revenue from the commercial television premiere and the release of a DVD version of the same show several months later.

It is noteworthy that the ABC shows are not available through iTunes Canada. The reason is almost certainly related to licensing restrictions, since those shows are licensed to CTV for Canadian distribution.  That is fine - business decisions by the networks about how best to sell into the Canadian market is their business.

It may be useful, however, to pre-empt false claims that may be floated that Canada is being avoided due to our copyright laws.  These same claims were made by the recording industry several years ago before the introduction of fee-based music services such as iTunes.  The reality was far different since the delays were again due to licensing concerns.  In fact, as far back as 2003 (well before Bill C-60), CRIA advised a Canadian government official that once its negotiations with CMRRA were completed, it expected a number of U.S. services to launch in Canada.  This despite the fact that former CRIA president Brian Robertson previously publicly claimed that "without protection against hacking the technological protections on commercially distributed music, there can be no Canadian counterpart to the U.S. labels' services."

CRIA and its supporters continue to claim that it is strong anti-circumvention legislation that drives digital economies.  For example, a couple of weeks ago Graham Henderson stated that "in countries where strong TPM laws have been established, this is precisely how they' ve worked, driving new digital economies that benefit both creators and consumers." He then expressed regret that the Canadian proposed legislation does not follow the U.S. model.  Similarly, Barry Sookman has argued that TPMs are "crucial for the development of new business models that allow consumers to 'gain access to content wherever and whenever they choose.'"

The reality is that there is no evidence that the Canadian digital economy has been hamstrung by the absence of DMCA-like laws.  Simply put, where Canadian markets have trailed, the issue surrounds market decisions and licensing, not the law.