[IP] Is the Broadcast Flag the latest U.S. Export?
Begin forwarded message:
From: Michael Geist <mgeist@xxxxxxxxx>
Date: September 6, 2004 10:13:18 AM EDT
To: dave@xxxxxxxxxx
Subject: Is the Broadcast Flag the latest U.S. Export?
Dave,
Of possible interest to IP - my latest Toronto Star Law Bytes column
assesses recent comments from an Industry Canada official that Canada
is likely to move quickly to import the broadcast flag by July 2005 to
match the U.S. on this issue. The column argues that it is essential
that Canada craft its own policy by considering the privacy and
copyright policies associated with the proposal. Pre-judging the issue
is a dangerous course of action and one that should be replaced
immediately by a working group consisting of all stakeholders,
including the broader public interest.
Column at
<http://geistcanadabroadcastflag.notlong.com>
Best,
MG
Mr. Minister, please protect the public interest
Michael Geist
Toronto Star
As the former CEO of Canfor Corp., Canada's largest softwood lumber
producer, our new Industry Minister David Emerson developed a
well-earned reputation for defending Canadian interests against those
of the United States. Despite considerable political pressure, Emerson
did not hesitate to file a $250 million arbitration claim against the
U.S. over its treatment of Canadian softwood lumber nor to scuttle a
trade deal that he feared would result in too many lost Canadian jobs.
Once established as industry minister, Emerson wasted little time in
continuing to prioritize Canadian interests. He quickly raised the
prospect of tying Canadian energy exports to aggressive U.S. trade
policy, commenting, "I think the United States has to make some fairly
significant decisions about their relationship with Canada, just as we
have to continually assess our relationship with the United States."
Emerson's strong backbone will be tested in the months ahead as he
faces unrelenting U.S. pressure on two initiatives that would, if
adopted, provide broadcasters with unprecedented control over
television signals and severely curtail consumers' expectations with
regard to their rights and personal privacy.
While digital copyright reform frequently takes centre stage, the
Motion Picture Association of America (MPAA), the leading U.S. motion
picture association, has been lobbying for two sets of broadcast
controls on a backstage. These include the creation of a new
international broadcasters rights treaty and the mandatory
implementation of new technological controls into every device that can
receive an over-the-air digital signal.
For the past year, U.S. broadcasters and the MPAA have actively
lobbied for the creation of the World Intellectual Property
Organization's Treaty for the Protection of Broadcasting Organizations.
This treaty would grant broadcasters increased powers over who may
control, transmit, or record broadcast signals. The U.S. would even
like to extend this power to Webcasts, which could be interpreted to
cover Internet downloads.
Since copyright law already provides broadcasts with significant
protections, Canada has rightly been cautious thus far on the proposed
treaty. In fact, the treaty would effectively provide a second layer of
protection for broadcasters, leaving some experts questioning whether
it is at all necessary.
Of more immediate concern is the imminent introduction of the
broadcast flag into the United States and its potential importation
into Canada.
The broadcast flag is a piece of software code, embedded by
broadcasters in their digital television signals, that dictates
permissible uses of the signal. For example, when viewers attempt to
copy a program, the flag may dictate that only a single copy may be
made, set restrictions on transferring the copy, or even prohibit any
copying at all.
The effectiveness of the broadcast flag depends upon devices, such as
TVs, videotape recorders, and computers with digital-TV tuner cards,
that recognize and respect the flag's instructions. This will be
achieved in the U.S. through the implementation of a new rule that as
of July 1, 2005, all such devices sold in the country "recognize and
give effect to" the broadcast flag.
Although the MPAA and some broadcasters have claimed that broadcast
flag protection is needed in order to provide the public with digital
television programming, that argument is not supported by the
experience to date. Many networks and cable television channels
(including Canada's TSN and Rogers Sportsnet) already deliver some
high-definition digital content to subscribers, all without broadcast
flag protection.
Even more troubling are the serious copyright, privacy, consumer, and
marketplace concerns raised by the broadcast flag proposal. By
providing broadcasters with increased control over the copying of their
broadcasts, the rules may eliminate many rights users take for granted,
such as the ability to "time shift" a program by copying a broadcast
for future, personal viewing. Moreover, the rules do not account for
public domain or political broadcasts. While fair dealing (or fair use
in the United States) might allow use of this content under certain
circumstances, the broadcast flag will enable broadcasters to restrict
all manner of uses, even those to which users are entitled under the
law.
Opponents of the broadcast flag have also pointed to worrisome
possibilities with regard to personal privacy. Since digital copies
would now be limited to a particular device, the broadcast flag could
easily be used to facilitate monitoring of individual viewing habits.
In fact, one company, MyDTV, has already proposed pop-up style
advertisements based on viewer profiles.
The implementation of the broadcast flag has also generated consumer
interest concerns. Starting in 2005, the ability to watch
over-the-airwaves digital television will be premised on owning a
"compliant" device, forcing millions of consumers to incur hundreds of
dollars in switching costs.
Finally, the broadcast flag raises serious questions about innovation
and the marketplace. Rather than allowing the market to develop on its
own, the broadcast flag creates a precedent where government
authorities directly regulate the technology that may be made available
to ordinary consumers.
Given the controversy associated with the broadcast flag in the U.S.,
one would think that Canada would be wary about embarking on the same
route. Accordingly, it came as a shock to many when an Industry Canada
official recently indicated that Canada was likely to follow the U.S.
lead by quickly implementing a similar system by July 2005. The
official suggested that there was broadcaster support for the measure
and that since the U.S. had adopted it, Canadians had little
alternative but to follow suit.
While Canadian broadcasters may or may not support the broadcast flag
(they have in fact been rather publicly silent on the matter), it is
essential Canada craft its own policy by considering the privacy and
copyright policies associated with the proposal.
Pre-judging the issue, as some in Minister Emerson's department appear
to have done, is a dangerous course of action, that should be replaced
immediately by a working group of all stakeholders, including the
broader public interest, intent on studying the Canadian options. The
suggestion Canada faces a Y2K-like deadline with respect to the
broadcast flag appears as overblown as was the Y2K threat itself.
In light of the importance of the issues raised by the broadcast flag,
it is heartening that Canada's new Industry Minister is a veteran of
supporting Canadian interests in the face of U.S. pressure. When David
Emerson salutes the flag on Canada Day 2005, one hopes that it is one
with a maple leaf, not a broadcast flag emblazoned with red, white, and
blue.
--
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
Technology Counsel, Osler, Hoskin & Harcourt LLP
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319 Fax: 613-562-5124
mgeist@xxxxxxxxx http://www.michaelgeist.ca
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