Another new copyright exception that does not require the fair dealing analysis is contained in Section 29.23 of the amended Copyright Act. This exception legalizes unauthorized reproduction of broadcast copyrighted works for the purpose of “listening to or viewing” them later. This exception is normally referred to as the “time shifting” exception.

Again, it sounds like a good idea, but I see three issues with it.

First of all, this is an attempt to legislate a business model. Granted, today it seems that time-shifting is as natural as using a library to read a book. But really, just because most viewers and listeners expect to be able to time-shift and because most broadcasters recognize the value of this business model, it does not mean that everyone should be forced into it. My solution would be, as in the case of libraries and most other exceptions, to craft the exception in the form of a rebuttable presumption. Unless a broadcaster expressly states that they do not agree to their broadcasts being recorded for time-shifting purposes, time-shifting should be allowed. Indeed, this is the purpose of all presumptions – to establish what the default behaviour is and to allow all those who disagree to craft their own rules. The presumption would be justified simply because otherwise a generally accepted practice results in mass copyright infringement, and it does not make sense to force the majority of broadcasters who agree with this practice to have to explicitly ALLOW time-shifting in order not to criminalize their listeners and viewers.

The section does contain a provision that removes from the scope of its application broadcasts protected by technological protection measures (TPMs). But this, in turn, puts the burden on the broadcasters not simply to clearly state that they do not wish their broadcasts to be recorded for the purpose of time-shifting, but to actually integrate the TPMs into their broadcasts.

The second problem is with the wording of the section where it lists the conditions that trigger the exception. One of the conditions is set forth in paragraph 29.23(1)(d), which states that the exception only applies if the individual who makes the recording “keeps the recording no longer than is reasonably necessary in order to listen to or view the program at a more convenient time.” What it does not say is whether “a more convenient time” refers to one time only. The exception does not expressly require that the individual destroy the recording immediately after he listened to or viewed the recording. For some, “a more convenient time” would be “once a year, every year”.

One other thing to note here is that the exception will not apply in respect of on-demand services. In fairness, I don’t understand this limitation. Why is it OK to record something that is being broadcast without any interaction with the viewer or listener, but it is not OK to record something for which the viewer or listener has likely paid but is then unable to fully enjoy the purchase for some reason?

BOTTOM LINE: Generally, this exception seems to make sense – but only because it is a generally accepted business model today. It would have been a perfectly acceptable clause if it were drafted in the form of a presumption, and if it was polished a little to deal with the issue of the number of times the recorded broadcasts can be viewed or listened to. Conceptually, there is no reason to punish general broadcasters with the exception while letting the on-demand services off the hook.