The time shifting provision in C-61 also contains time and copy limits - Canadians may keep "the recording no longer than necessary in order to listen to or watch the program at a more convenient time" and may not make more than one recording of the program. While it is understandable that the government is seeking to set some parameters around time shifting, the U.S. "fair use" provision has worked well for more than two decades without this degree of specificity. In the case of time limits, it is not entirely clear what this means - a day, a week, a month, or a year? A reasonableness standard will presumably emerge, but in the meantime this particular provision is a bit of a guessing game. The copy limits makes intuitive sense, yet what about the person who sets their PVR to record each episode of a program and proceeds to copy a repeat episode that technically violates the provision?
While these are admittedly small details, they hightlight two concerns. The first is that the government has taken a good general principle - time shifting is widely accepted - and rendered the legal provision overly complex and uncertain. The second, potentially more important concern, stems from how this provision might be enforced. At first blush, the provision seems entirely unenforceable as there is little chance of police spending time inspecting the television program recording habits of individual Canadians. Yet given the inability to enforce the provision in that manner, how long might it be before broadcasters demand that the PVR providers (both cable companies and equipment manufacturers) build in these legal limits into their products so that the PVR automatically deletes a recording after a certain period of time or stops recording a duplicate show? Once the legal principle is established, past precedent demonstrates that demands on intermediaries to enforce the law quickly follow.
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