All I Want For Christmas is a Legal TiVo

My weekly technology law column (Toronto Star version, The Tyee version, Ottawa Citizen version, homepage version) focuses on the fact that there is nothing under Canadian law that clearly permits home recording of television programs.  I note that TiVo claims that its service is available in Canada, yet few retailers carry the product. In fact, notwithstanding the growing popularity of PVRs and the ubiquity of VCRs – the CRTC estimates that 700,000 Canadian households own a PVR and Statistics Canada reports that over 10 million households have video cassette recorders (VCR) – the absence of the TiVo is not the only difference between the U.S. and Canadian markets.  In the U.S., using TiVos and VCRs is clearly legal.  In Canada, it is not.

While it may come as news to many Canadians that they infringe copyright on daily basis, those involved in the industry are well aware of this state of the law.  The law includes a series of copying exceptions that cover research, private study, and criticism, however, there is nothing that clearly permits home recording of television programs.  Indeed, the delayed introduction of the TiVo or the Slingbox, another popular product that allows consumers to transfer their television programs over the Internet to their computer and which only entered the Canadian market last year, may stem in part from fears about the legal climate.

Ottawa has regularly introduced legislation demanded by lobby groups (new laws against camcording in movie theatres and Internet rebroadcasting have been passed over the past five years), yet nothing has been done to address the legality of commonplace, non-commercial activities that affects millions of Canadians. 

This stands in stark contrast to many of our leading trading partners, including the U.S., Australia, United Kingdom, and New Zealand, who have all passed or proposed legislation that removes the home television recording from the cloud of possible illegality.  For example, the U.S. Supreme Court addressed the issue in a case involving the legality of the Sony Betamax machine in 1984.  The court sided with Sony, who argued that recording television programs simply enabled users to shift the time when they watch the taped program.

The forthcoming copyright bill provides the ideal opportunity to remedy decades of inaction. Prime Minister Stephen Harpers's government should introduce a new personal network exception into the Copyright Act that would feature three main components.

First, a "time shifting" provision to grant Canadians the right to record television programming for personal, non-commercial purposes.  The exception would legalize what is already a common activity for millions of Canadians and might fuel new products and services from Canada's telecommunications and consumer electronics companies.

Second, a "format shifting" provision that would legalize the transfer of content from one format to another.  For example, it would expressly permit transferring music on a store-bought CD to an iPod or the transfer of video from a cable box to a personal computer.

Third, a modernized backup copy provision that would address today's consumer realities.  The law already permits the making of a single backup copy of a computer program, rightly recognizing that software programs are intangible products that are susceptible to loss. Today, digital data includes CDs, DVDs, and video games, which all 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.  Modernizing the law should include bringing this provision into the 21st century by expanding the right to make a backup copy to all digital consumer products.

Addressing these issues in the forthcoming copyright bill would be more than just good policy.  It would also be good politics, since voters will have little patience for special interest legislation that is geared toward placating U.S. lobby groups rather than considering their needs.  With a bill expected before the year is out, Canadians will soon learn whether Industry Minister Jim Prentice and Canadian Heritage Josée Verner plan to provide an early holiday gift to lobby groups or allow them to use their holiday gifts without fear of breaking the law.


  1. TiVo’s will be much more widely available in Canada once they start using a distro of Linux licensed under GPLv3.

  2. I don’t think TiVo’s absence in Canada has anything to do with legalities; the real problem with TiVo in Canada is that they have no viable path: high definition support on TiVo’s models is available for users of Cablecard only. Cablecard is not available in Canada. So any subscribers of Canadian cable, expressvu or star choice *can not* record in HD on any TiVo model. That’s really why they haven’t rolled out any consumer distribution channels up here. They’d be dead in the water, commercially speaking, from day one. (I have a legitimate TiVo Series 2 which I use with expressvu, standard definition only, and I’m very happy with it).

  3. @Malcom
    Malcom, care to follow that statement up with an explanation? I see no reason why GPLv2 is slowing down the adoption of Tivo in Canada, that seems asinine. The changes in v3 address nothing that Canadian law was any stricter upon than the rest of the world.

    Rather, the slow adoption of Tivo in Canada is related to the fact that it can’t record digital TV off of our draconian satellite and cable providers’ signal or box, because they refuse to implement CableCard or decrypt their signal. Why are we slow to adopt it for Analog TV? I don’t know. Maybe Tivo’s listing service sucks in Canada? Maybe people still on analog don’t care enough about TV to invest in a Tivo?

  4. I’ve had a free Explorer 8300(not HD) from Rogers for almost 2 years.
    I guess I’m confused that if it’s “illegal” how is Rogers (ExpressVu and Starchoice with thier versions) managing to sell/rent them?

  5. Copying original material is an act perpetrated by a minority. All the stats confirm that. We already pay a “generalised” tax on every blank cd sold in Canada wether they are used to copy corporate data, music or video. Guess what, data backups are the most common use of CDs. Artists should say thank you. I buy my DVDs and watch them once in 5 years on average… I almost don’t watch traditional TV because it does not match my lifestyle (3 children, traveling, work, sports, etc.). I support the intent of the Canadian Copyright reform as expressed in your blog.

  6. Norms and laws
    This coincides nicely with a new paper from a US law professor, where he looks at the everyday activities that are illegal under their Copyright Act – [ link ].

    He concludes that the average law professor is liable for $4.544 billion in potential damages per year – and that\’s without using a p2p network.

  7. Great article.

    Looking forward to Michael’s response to the scare campaign on the front page of today’s Toronto Star. (We’ll have Internet “brownouts” unless the government bans net neutrality.)

  8. Edward Palonek says:

    If a subscriber is paying for the TV access then it should be their right to record any and all programs for non-commercial purpose. I do not see why common sense can not once again apply.
    Palonek @ [ link ]

    Thank you

  9. Gabriel Hurley says:

    From the Copyright Act
    From the Copyright Act (29.6):

    “it is not an infringement of copyright for an educational institution or a person acting under its authority to.. make, at the time of its communication to the public by telecommunication, a single copy of a news program”

    One would assume that if it is legal to play the news program then it was probably legal to record it in the first place.

  10. Gabriel Hurley says:

    oops I forgot a part
    What I wanted to quote was:

    “it is not an infringement of copyright for an educational institution or a person acting under its authority to.. make, at the time of its communication to the public by telecommunication, a single copy of a news program for the purposes of performing the copy for the students of the educational institution for educational or training purposes”

  11. How about we just have PVR boxes and ignore all of the legal BS?

    Honestly, what I do with the shows that display on my TV is my business, why do we need laws for this?

    Oh, and there are much better devices than TiVo. Neuros’ products come to mind, your MythTV if you’re budget-minded and know what you’re doing.