Setting the Record Straight: 32 Questions and Answers on C-32's Digital Lock Provisions, Part Four

Bill C-32 purports to allow consumer to legally shift music from CDs to their iPods or other devices.  Do they lose that right if there are digital locks on their CD?

Yes. The new right to legally shift music is subject to an anti-circumvention limitation.  In other words, the right to shift music to your iPod is not a right that you control.  It is a right that is effectively dictated by the record label who can easily remove the right by including copy-controls on the CD release (there are thousands of these kinds of CDs owned by Canadians).  In fact, the anti-circumvention limitation even applies to private copies onto blank CDs.  This means that consumers pay for the CD and pay the levy on a blank CD that nominally gives them the right to make a personal copy, yet violate the law if they circumvent a copy-control in order to do so. 

Does Bill C-32 allow consumers to make legal backup copies of most commercial DVDs?

No.  The new backup copy provision are subject to an anti-circumvention limitation.  Since most commercial DVDs currently contain several TPMs, consumers would not be able to legally make a backup copy of their own personal DVDs.

Does Bill C-32 allow consumers to shift content from a DVD to a portable video player such as an iPad?

No. The format shifting provision is subject to an anti-circumvention limitation.  Since most commercial DVDs currently contain several TPMs, consumers would not be able to legally make a backup copy of their own personal DVDs.

C-32 purports to allow consumer to legally record television shows, yet cable companies are increasingly inserting anti-copying technologies into some broadcasts?  Does C-32 allow for those programs to be recorded?

No.  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-32 purports to provide. 
 
C-32 includes an exception for unlocking cellphones.  Isn't that a positive new development?

The inclusion of a circumvention exception for unlocking cellphones is certainly a good thing, yet the net effect is merely to retain the status quo.  It is currently legal in Canada to unlock a cellphone, with the primary barriers being carrier contracts and technical inability to do so.  The new exception does not create any new rights to unlock the cellphone, but rather merely retains the current right to do so.

Does C-32 require businesses to notify consumers about the presence of digital locks?

No.  Bill C-32 does not contain any notice requirement regarding the limitations imposed by DRM on a consumer product. Most consumers know little if anything about DRMs and the limitations that may be placed on consumer entertainment products such as CDs, DVDs, video games, or digital download services.  While there may some limited disclosures - DVDs indicate the region code, if your eyesight is good enough you might notice that some copy-controlled CDs warn on the back corner that they may not play on all computers, and digital download services all feature lengthy user agreements that few consumers will ever read - they are plainly insufficient and the government should not support the legal fiction that "informed" consumers are knowingly purchasing products that contain a host of limitations.

For many consumers, these DRM products are simply not fit for purpose - they often won't play on your DVD player, on your iPod, or permit usage that most would expect is permissible.  Moreover, consumers frequently can't obtain a refund for their purchases as many retailers won't accept returns on opened CDs and DVDs and digital download services do not offer refunds to disgruntled downloaders.

The federal government might argue that this is provincial problem, since consumer protection issues typically fall under provincial jurisdiction.  The reality, however, is that the federal government can and should play its part to address the issue given the manner it which it is supporting the use of DRM through Bill C-32.  It should consider establishing DRM labeling requirements (an approach also advocated by the Society for Law and Computers in the UK) so that consumers will be able to quickly identify capabilities, compatibilities, and limitations.  The Competition Bureau is currently responsible for two labelling statutes - the Consumer Packaging and Labelling Act and the Textile Labelling Act.  If labelling is required for upholstered furniture, surely it can be added for consumer entertainment products.

Isn't there an "analog hole" that would allow someone to record a DVD without circumventing the digital lock?

Yes.  It is true that rather than picking a digital lock on DVD, a person could try to camcord an analog version of a film.  In fact, this is precisely what the MPAA argued last year, claiming that there was no need for a film studies exemption in the DMCA since there is an analog way to create film clips.  Rather than break the encryption on a DVD, teachers could camcord the same film clips.  In fact, the organization showed a video demonstrating how to effectively camcord clips of DVDs without breaking the encryption on the DVD. 

Leaving aside how surreal it is to see the same organization that travels the world demanding anti-camcording legislation now citing it as a solution, the analog hole is not a solution for making backup copies of DVD or format shifting.  It might only be used for a very brief clip, but given the government's stated goal of modernizing Canadian copyright law, it is worth asking whether a law that proposed using camcording films to preserve basic copyright rights has struck the right balance.  Note that the Film Studies Association of Canada was outspoken on C-61.