Having discussed the format shifting exception, this series now turns its attention to the time shifting provision (Section 29.23). It should be noted that the legalization of recording television shows is long overdue – I argued for it last year and Canada is more than 25 years behind the United States in this regard. While the inclusion of the time shifting provision is a good thing, this particular implementation suffers from several notable shortcomings that could have been addressed through a more flexible fair dealing provision.
The first is that the provision is really geared toward analog or VHS recording where there are few technical limitations on television recording. As Canadians increasingly use PVRs to record programs in digital format, their ability to record shows becomes more limited. Bill C-61 expressly includes an anti-circumvention provision (Section 29.23(1)(b)). In other words, if there is a digital lock (often referred to as a broadcast flag) included with the broadcast, you can't legally circumvent it in order to record the program. Note that the U.S. has established limits on the use of the broadcast flag, but no such limits exist in Canada. As Canada transitions to digital, it is possible that broadcasters will increasingly institute anti-copying notices to stop the very recording rights that C-61 purports to provide. Industry Minister Jim Prentice has focused on the time shifting provision as one of the foundational consumer rights in Bill C-61 but the bill should be amended to ensure that the right will still stand in a digital world.