30 Days of DRM – Day 24: Time Shifting (Circumvention Rights)

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.

One Comment

  1. Russell McOrmond says:

    Time,Space,Device Shifting
    While the US courts have historically considered time shifting to be a valid exception under Fair Use quite appropriately in 1984, I believe it is critical we modernize this thinking to include space and device shifting at all. In 1984 we were not able to think of all the personal devices have that include cell phones, audio players (MP3 and other formats), and now video players. Once we have legally purchased some digital content to be in our private homes or on our person (IE: directly into a portable device), copyright should not be able to regulate when we enjoy it, where we enjoy it, or with what brand of device we enjoy it.

    Unfortunately the whole concept of DRM goes against this. These 30 days of DRM have discussed the problems that will happen once there is legal protection for DRM. What is missing is some of the technical background around how DRM is accomplished. Missing was the talk of encoding content in such a way that it needed a digital key to unlock it, which created a tie to specific devices which have the decryption keys. While this can’t ever effectively protect copyright (the content and the keys are in the home of the person wanting to circumvent), it does effectively circumvent competition legislation by creating a tie between the enjoyment of content with specific brands of technology.

    While this may confuse some legislators, the lack of interoperability between different DRM disabled devices is not an unnecessary side-effect but in fact the underlying technological method used to create DRM in the first place. There may be more than one company within the larger brand, such as with DVD players whose features are authorized by the DVD Copy Control Association, but that unaccountable centralized control of the devices which are interoperable still exists.

    As long as this technique is legal, it will be impossible for people to device-shift based on devices that are chosen based on the citizens own criteria. The brands will continue to play its customers in a large game of monopoly where citizens are forced to give up all the content they have purchased if they dared to want to change brands of communications devices (IE: switch from Apple to Microsoft or Free/Libre and Open Source Software based devices).