Raising the Broadcast Flag on Fair Dealing and Privacy

If proponents of the so-called "broadcast flag" get their way, Canadians may no longer be able to record a hockey game on television for later viewing. A broadcast flag is a piece of code embedded in digital broadcasts that instructs flag-enabled devices on how the broadcast can be subsequently used. An Industry Canada official has suggested that Canada should be quick to follow the lead of the United States in urging a legal requirement that all devices capable of receiving broadcast be flag-enabled. However, as with rights management for other types of digital content, the broadcast flag proposal raises concerns for fair dealing, privacy and technology innovation. Unlike content published under statutory copyright, developers of technological protection measures (TPMs), such as the broadcast flag, are under no obligation to recognize fair dealing exceptions. Indeed, some copyright collectives have referred to TPMs as the "holy grail" of copyright, because it would allow copyright owners to perfectly correlate use with remuneration, and maximize control over all uses of a protected work, regardless of statutory exceptions. Opponents of the broadcast flag have raised privacy concerns. Flag-enabled devices could be used to meter use and to report to marketers on individual viewing patterns. Hockey fans might be subjected to more beer advertisements, for example, even if they are not watching a game. Some critics fear that mandating broadcast flag-enabled devices could also slow technology innovation, by replacing discretionary markets with government determinations of what technologies will be made available to consumers. For an article from the Toronto Star on the broadcast flag in Canada, see: http://tinyurl.com/49x52. For the US Federal Communications Commission's Proposed Rulemaking on the broadcast flag, visit: http://www.eff.org/IP/Video/HDTV/20031104_fcc_order.pdf. Summary by: Jason Young