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Thursday July 03, 2008 |
Having reviewed the format and time shifting provisions, I now turn to the music shifting provisions (Section 29.22). Industry Minister Jim Prentice has heavily promoted these provisions as he assures Canadians that they can now shift music from CDs to their iPods. The provision has faced significant criticism from all sides, however. The Canadian Private Copying Collective is livid at the change, arguing that it will "rob creators of their rights, denying them compensation for this use of their work." In what sounds a lot like consumer group complaints, the CPCC adds that they were not consulted on the issue and that an open consultation is needed.
From the consumer perspective, the provision does not go far enough. I think it is fair to say that most consumers believe that if they have paid for a song, they should have the right to listen to it on the device of their choice without further compensation (CRIA seemingly agrees). Such uses should be considered fair uses and the value of listening to a song on multiple devices can be built into the initial purchase price.
Yet the music shifting provision is subject to some significant limitations that undermine their fairness.
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Thursday July 03, 2008 |
The Canadian Newspaper Association has issued a position paper with its views on C-61. While the paper addresses several issues, its concerns with the anti-circumvention provisions are the most striking. The CNA notes that:
Bill C-61 makes it an offence to bypass any technological protection used on Internet sites. This is not normally an issue for newspaper public sites, but might apply to sites requiring registration, and to paid archive services. While this is positive for rightsholders seeking to protect content from unauthorized access, it could have implications on newsgathering, news reporting, and press freedom broadly, as is shown in the discussion below.
Under section 29.2 of the current legislation, there is a fair dealing defence to copyright infringement for news reporting. As drafted, Bill C-61 throws up roadblocks. For instance, if documents are encrypted, it will be illegal to break the encryption. This means that journalists who come across or are sent electronic documents (for example from a whistleblower) may be unable to use them without incurring very significant liability, even though there are no barriers on using the same materials in print format. It might also mean that citing video or other content from a digitally protected work (say, a DVD movie in which a newsmaker once appeared) could incur liability.
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Wednesday July 02, 2008 |
The time shifting provision in C-61 also contains time and copy limits - Canadians may keep "the recording no longer than necessary in order to listen to or watch the program at a more convenient time" and may not make more than one recording of the program. While it is understandable that the government is seeking to set some parameters around time shifting, the U.S. "fair use" provision has worked well for more than two decades without this degree of specificity. In the case of time limits, it is not entirely clear what this means - a day, a week, a month, or a year? A reasonableness standard will presumably emerge, but in the meantime this particular provision is a bit of a guessing game. The copy limits makes intuitive sense, yet what about the person who sets their PVR to record each episode of a program and proceeds to copy a repeat episode that technically violates the provision?
While these are admittedly small details, they hightlight two concerns. The first is that the government has taken a good general principle - time shifting is widely accepted - and rendered the legal provision overly complex and uncertain. The second, potentially more important concern, stems from how this provision might be enforced. At first blush, the provision seems entirely unenforceable as there is little chance of police spending time inspecting the television program recording habits of individual Canadians. Yet given the inability to enforce the provision in that manner, how long might it be before broadcasters demand that the PVR providers (both cable companies and equipment manufacturers) build in these legal limits into their products so that the PVR automatically deletes a recording after a certain period of time or stops recording a duplicate show? Once the legal principle is established, past precedent demonstrates that demands on intermediaries to enforce the law quickly follow. Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareWednesday July 02, 2008 |
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Tuesday July 01, 2008 |
In the months leading up to Bill C-61, Telus consistently argued for a "living" fair dealing provision that could adapt to changing technologies. In particular, the company noted its interest in providing a network-based PVR that would allow customers to record and store programs that reside on computers that it hosts. That network-based approach of relying on centralized computers - often referred to as cloud computing - is one of the hottest trends in computing as companies look for efficiencies and consumers seek out convenience.
Yet Bill C-61 isn't just oblivious to these developments - it is downright hostile. The time shifting provision includes a specific reference to a network-based video recorder service that explicitly excludes such services from its scope. In other words, the legislation is complete rebuke to Telus' hope to offer such a service. As I'll discuss in the coming weeks, it does not end there, however. The legislation does nothing to facilitate network-based computing, instead envisioning a world in which format shifts are limited to nearby devices that we own. Shifting your music to an iPod may be possible (provided that you meet a host of requirements), but shifting to a network-based storage facility does not appear to be in the cards. The future of computing may be on the network, but Bill C-61 does its best to erect barriers toward that vision. Slashdot, Digg, Del.icio.us, Newsfeeder, Reddit, StumbleUpon, TwitterTagsShareTuesday July 01, 2008 |
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