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Canadians Stuck With Analog Rights in a Digital World

By Michael Geist

My weekly technology law column (Toronto Star version, Ottawa Citizen version, Vancouver Sun version, homepage version) notes that earlier this month, some fans of the NBC television programs American Gladiators and Medium found themselves unable to digitally record the shows on their personal computers.  The reason for the blocked recordings raises important technical and legal questions about the rights of consumers to "time shift" television programs in the digital era. The blocked recordings affected people that record television programs on their personal computers using the Microsoft Windows Vista Media Centre.  Most people are unaware that Microsoft has inserted a feature that allows a broadcaster or content owner to stop the digital recording of a show by triggering a "broadcast flag" that specifies its preference that the show not be recorded.  When the user tries to record it, Microsoft’s software recognizes the flag and issues a warning that the program cannot be recorded.

While there was speculation that the NBC broadcast flag was triggered accidentally, the incident provided an important reminder about the current fragility of consumer digital rights.  The law in the U.S. has granted consumers the rights to time shift programs for decades, yet broadcasters can seemingly stop the ability to record programs in the digital world with the flick of a switch. Cable providers enjoy similar capabilities. Digital cable boxes used by companies such as Rogers and Shaw include a CableCard that allows users to watch and record digital television shows.  The CableCards feature functionality (technically known as CGMS-A) that allows broadcasters and cable companies to establish limits on recording programs.  

Programs are broadcast with one of three specifications - copy freely, copy once, or copy never.  The copy never specification is typically used for pay-per-view or video-on-demand programming. As the recent NBC incident illustrates, however, there is the potential for far broader restrictions.  In fact, Internet chat sites are filled with postings from aggrieved Canadian consumers who claim that they have been blocked from recording a wide range of television shows. As broadcasters and content owners increasingly sell or stream their content online, the incentives to block consumers from making their own recordings grows.  In the United States, the law restricts the ability to block digital recordings, since cable companies face potential fines for blocking content that is not either video on demand or pay-per-view.  There are no similar restrictions in Canada.

Not only are Canadians more vulnerable to abusive use of a broadcast flag, but their rights to even record "copy freely" programs are open to question.  The Canadian Association of Broadcasters recently told the CRTC that consumers who record television shows for later viewing, whether on a VCR or PVR, violate the law. There has been recent speculation that Industry Minister Jim Prentice will soon introduce new legislation that would legalize time shifting in Canada.  However, the use of broadcast flags or other recording restrictions in Canada suggests that the legal reform may be too little, too late.

Creating a Canadian time shifting provision might allow for the recording of analog television programs that cannot be blocked through a CableCard or the Windows Vista Media Centre.  In the digital world, however, the new right will be illusory since technology can be used to trump the law.  Moreover, Prentice may actually make it illegal to circumvent the blocked recordings, meaning that Canadians that attempt to exercise their rights to record television programs in the digital environment could face the prospect of tens of thousands of dollars in liability. Addressing the rights of Canadians to record television programs is long overdue.  In tackling the issue, Prentice must be sure to avoid merely providing Canadians with analog rights in a digital world.

Full post as published by Michael Geist on May 28, 2008 (boomark / email).