ACIPA Conference - David Brennan and the Broadcast Flag

At the ACIPA conference, David Brennan discussed the operation of the Broadcast flag. He noted firstly that it was not a TPM, but was a “redistribution control descriptor”.

The flag requests that a digital receiver outputs a flagged broadcast only: (a) In analogue form; (b) In a form suitable for conventional cable or satellite retransmission provided flag is retained; © In digital form to an authorized digital output technology; (d) In encrypted digital form to a product controlled by the receiver; (e) In encrypted form to a recording device associated with the receiver; or (f) In low-definition digital format when receiver incorporated with computing equipment.

In Australia, work is being undertaken under the EU DVB standard - formulating the copy protection management system (CPCM). Existing powers under the Broadcast Services Act do not extend to mandating flag compliance, but new powers in Part 9A or 9B BSA allow ACMA to mandate technical or industry standards respectively.

ACMA will have the power to implement and require compatible devices under either 9A or 9B.

The broadcast flag is not a TPM, and does not form part of the recent AUSFTA. If the US were to export broadcast restrictions in the future, the technological infrastructure (through the development of the CPCM) and the legal infrastructure (through either Part 9A or Part 9B) is already in place in Australia.

Brennan sets up a choice between implementing a mandated flag and what he believes is the inevitable refusal of content owners to deal with uncontrollable digital free to air broadcasting.

Brennan criticises the EFF's response to the broadcasting flag. He notes that the EFF claim simultaneously that such a regime would: (a) leak like a sieve; and (b) prejudice fair use rights to copy and share.

Brennan argues that these propositions are mutually exclusive. I put it to him that these propositions are not exclusive, on the basis that the flag would be too weak to stop serious piracy, but could be too strong to prevent non-technologically-sophisticated users from dealing with audiovisual content in ways which they are entitled to under copyright law. Brennan responded that he believes that with universal broadband access, this would not be a problem - there would always be an unencumbered copy around.

I think that this answer is flawed on two levels. The first is factual - it relies on an assumption of widespread broadband access which is non existent at the moment, and fails to recognise that users should not be forced to download infringing copies of material in order to exercise fair use rights, particularly because this is most likely to harm both ordinary people and educational and other institutions which must abide by the rules.

The second level is that if Brennan admits that there will also be an unencumbered version accessible somewhere, then it follows that the broadcast flag is not useful. If, on the other hand, access to that unencumbered version is not easy, then it follows that the broadcast flag must interfere with fair use and fair dealing rights. Brennan may attack the EFF's responses for being mutually exclusive, but this is a matter of interpretation. Brennan cannot escape from the conclusion that at least one of the EFF's contentions must be correct; if this is the case, the proposition that we must inevitably adopt a broadcast flag must be very carefully considered.