Bill C-61 gives with one hand and takes away with the other: Granting time shifting rights but excluding library building
Bell’s personal video recorder (PVR) featuring an external hard drive for archiving recorded television programs premiered when Bill C-61 was debated in Parliament. However, under Bill C-61, archiving recorded programs is illegal.
Time shifting is the process of recording programming and storing it to view at a later time more convenient to the consumer. Time shifting is an indispensible convenience in contemporary society as reflected in the popularity of PVRs (i.e. TiVo).
The Copyright Act does not explicitly permit TV recording, thus this common practice is technically illegal, although not enforced. Such programming is copyrighted and recording is infringement not caught within the ambit of fair dealing. In contrast, the US has legalized home television recording as fair use (Sony Corp. v. Universal Studios).
I support time shifting in Canada as a user right given the non-commercial, private nature of the use. Time shifting serves the public interest by increasing access to television programming and encouraging consumer electronic innovation.
Bill C-61 contains a time shifting exception which would grant Canadians the right to record TV programs for later viewing [s.29.23(1)]. However, time shifting is tightly restricted. It is not an infringement of copyright to record a TV program if “the individual keeps the recording no longer than necessary in order to listen to or watch the program at a more convenient time” [s.29.23(1)(d)]. This indicates that time shifted recordings cannot be stored indefinitely to build a library of recordings for repeated viewings in the future. Canadians may only watch the recorded copy once and then must erase or destroy the recording. The interpretation of “no longer than necessary” is ambiguous. Can you keep the recording only for a few hours or one week? Once this elusive time requirement has passed, then the consumer has crossed into illegal territory. How would this provision be enforced? Perhaps Bill C-61 is deliberately vague because it would be virtually impossible to enforce this ban without violating a person's right to privacy. The library building restriction should be eliminated as it unduly intrudes into the private lives of consumers and tilts the balance in favour of rights holders.
Library building raises concerns for copyright holders since the viewer exercises control over the time, speed, sequence and context in which the program is watched. The copyright holder loses control and exclusivity over their programs. In terms of market harm, time shifting may reduce audiences for re-runs, licensing fees and advertisements since viewers often fast forward through commercials. Although I am unconvinced that appreciable market harm exists given that PVRs increase viewership, the extension of a private copying levy to the recording of TV programs could strike a more appropriate balance.
Does Bell authorize infringement by advertising and selling its new device? In CCH, the court held that merely providing customers with the machinery to make copies, without more, is not authorization of infringement. Arguably, Bell does not infringe by merely providing its device, yet Bell’s advertisements encourage infringement by marketing recording “forever,” which creates potential liability.