The great consumer sellout

Michael Geist raises a good point about the lack of discussion of digital issues in Ontario's provincial election. But it's worth wondering whether Canada's Western provinces are even able to have the debate which Geist rightly sees as vital:

Copyright is also a federal matter, but if the government moves forward with the digital lock rules discussed in the recently uncovered Wikileaks cables, the provincial governments should consider the significant consumer protection issues that are likely to follow.

Most consumers know little if anything about digital locks and the limitations that may be placed on consumer entertainment products such as CDs, DVDs, video games, or ebooks. For many consumers, these digitally locked products are simply not fit for purpose - they may not play on their DVD player or permit usage that most would expect is permissible. Moreover, consumers frequently can’t obtain a refund for their purchases as many retailers won’t accept returns on opened CDs and DVDs and digital download services do not offer refunds to disgruntled downloaders. Other countries have established specific consumer protections on digital lock use and it falls to the Canadian provinces to do the same.

So how might Western Canada be limited in what it can do if that exact issue arises? Let's take a spin in the wayback machine for a reminder as to what B.C., Alberta and Saskatchewan have signed onto in the form of the TILMA (if by another name in Saskatchewan's case):

Parties shall not establish new standards or regulations that operate to restrict or impair trade, investment or labour mobility.

With that blanket prohibition in mind, let's look at regulating digital locks as a case study as to the kind of regulatory authority the provinces have signed away.

After all, there can't be much doubt that any provincial legislation which creates consumer protections by limiting the use of digital locks would have a direct effect on trade by limiting the ability of media distributors to sell their product in the same form in different provinces. Which means that any such law passed in any of the Western provinces will be deemed presumptively illegitimate under the TILMA - subject to justification only if a particular law is ruled to do as little as possible to affect the interests of the corporations involved.

In other words, never mind striking a balance between the rights of consumers and the interests of big media. Thanks to the anti-government agreement entered into by the three westernmost provinces, we can count on consumers being protected by either nothing at all, or the bare minimum which big business is prepared to accept.

So if Ontario has reason to be concerned about the lack of discussion about consumer protections now, it can at least take heart in that it hasn't yet committed never to have that debate in the future. And voters there and elsewhere may want to make sure not to elect a government which will want to change that.

[Edit: fixed wording.]