Author: Howard Law

CRTC Chair Vicky Eatrides

May 13, 2023

Yesterday CRTC Chair Vicky Eatrides published Broadcasting Notice of Consultation (BNOC) 2023-138, the Commission’s roadmap to implementing Bill C-11.

Here are the highlights followed by some MediaPolicy commentary.

• The Commission is aiming to having the Bill operational by the Fall of 2024.
• Prior to then, there will be a downpayment by foreign online undertakings on making financial contributions to Canadian content; the MediaPolicy guesstimate is April 2024.
• Eatrides says she is not touching any regulation of user generated programs, but that commitment is subject to important caveats.
• She is spinning off the debate over the definition of a Canadian video program or song to another proceeding for which a timetable is yet to be announced.
• Participants (and industry players) have to file their submissions to the CRTC in a lightning quick six weeks, before a June 27th deadline. The first day of public hearings is November 20, 2023. That date might seem unreasonably delayed, but once you digest how many issues the Commission has to prepare for, you might not think so.

Here’s the commentary.

User Generated Programs

Let’s begin with the discoverability of user generated programs on YouTube and TikTok, as this is the issue that attracts us policy moths to the flame.

The vocabulary of BNOC 2023-138 is consistent with Eatrides’ earlier public statements: the Commission has ‘no intention’ of ‘regulating’ YouTube creators or their user-generated content.

Caveat #1. For now. Not in “this proceeding” (i.e. 2023-138):

41. Sections 2.1 and 4.1 of the current Broadcasting Act also provide for a rather complex set of exclusion provisions with respect to social media services and users who upload programs on these services. The Commission does not intend to regulate any aspect of a social media service, nor does it intend to “prescribe” user-uploaded content on social media services for the purpose of regulating such content, as part of this proceeding. The Commission is also cognizant that it should avoid imposing regulatory requirements on broadcasting undertakings if that imposition will not contribute in a material manner to the implementation of the broadcasting policy set out in subsection 3(1) of the current Broadcasting Act. 

Caveat #2: ‘Regulating’ programs can mean a lot of things, or not, under the Broadcasting Act.

Caveat #3: When Eatrides says she won’t regulate user generated content she doesn’t mean ‘discoverability’ obligations for Canadian programs. YouTube will have some kind of discoverability obligations, they just might not involve the algorithmic ranking of program recommendations:

As indicated above, the Commission intends to apply an approach that focuses on desired performance standards and measures of success without specifying the means or the method for achieving them. In this regard, the Commission does not intend, at this time, to prescribe or require an undertaking to use a certain method or tool in order to achieve desired promotion and discoverability outcomes. For example, the Commission would not require an undertaking to change marketing strategies or prescribe specific home page or search engine functions. Moreover, the current Broadcasting Act prohibits the Commission from making orders pursuant to paragraph 9.1(1)(e) that that would require the use of a specific algorithm or source code. It would be up to the undertakings to decide which tools are best suited to achieve the identified outcomes regarding promotion and discoverability. However, the Commission will need to understand how those tools are utilized and measured to assess whether the identified outcomes are being achieved.

Eatrides’ view (on many things in this BNOC) is that regulation should be ‘outcomes based,’ which is regulatory code for ‘give us a good result any way you choose.’ This is very similar to how former Chair Ian Scott envisioned the Commission’s approach to discoverability last June when testifying before the Heritage Committee.

You can probably read into these statements emanating from the Commission as the regulator wanting no part of the culture war that has been stirred up over the ranking of content recommendations.

A good guess about the shape of the Chair’s desired ‘outcome’ is that the Commission will leave it to online undertakings to figure out discoverability on their own and then present it to the Commission. How effectively these self-designed outcomes are measured and enforced by the Commission is something we will have to wait for.

***

The Money

There are three issues here.

How much should online undertakings contribute to Canadian content, in what manner, and where does the money go? Which content funds get the money?

How do those obligations, when imposed on a kaleidoscope of foreign media companies, get implemented in a way that is equitable and fair to our existing broadcasters who are licensed to provide a wide spectrum of Canadian content genres (such as unprofitable drama and local news)?

How do we rethink our existing content funds given the elevated expectations in C-11 for programming relevant to diverse communities and Indigenous Peoples? Or do we need to start up new ones governed by the communities themselves? How do we reinvent local news funding given its unravelling business model?

Eatrides wants a downpayment of sorts from the Californian streamers and other online giants.

So she has split up their future financial obligations into two pieces: the first is a basic initial contribution to a content fund (for example the Canada Media Fund or the Independent Local News Fund) as a common denominator shared by all broadcasting undertakings.

Whatever that contribution is, it is supposed to be in place in the first half of 2024.

The second, additional layer of financial contributions to CanCon will be more custom-fit to the nature of the online undertaking. It could just beef up its base contribution to a content fund or alternatively it might be an ‘expenditure’ obligation (for example, Netflix broadcasting Canadian programs it has made or purchased). As part of this additional contribution, there will be ‘intangible’ contributions expected such as the promotion and discoverability of Canadian programs on their platforms.

Another important point Eatrides makes about these additional expenditures beyond base is that they might be custom fit to the broadcasting undertaking’s favoured production fund or programming genre. The rules might even include getting credit for non-programming expenditures like training and internships. That will be catnip for corporate accountants who specialize in that kind of regulatory hokum.

The custom-fitting idea is not new: the Commission mooted it almost five years ago in its report on regulating online undertakings, Harnessing Change.

A Commission official interviewed yesterday by Cartt.ca suggested online undertakings might be regulated in very individualized ways:

“Someone might come and say…we would do it in thirds. We’ve assessed our contribution at a certain level — a third of it would be a contribution to a fund, a third of it would be our support for Canadian programming, a third of it might be what we’re calling the ‘intangibles,” a CRTC official said, adding the regulator would have to further figure out how to value those contributions.

“You can see that mix, and it would be different for each player,” the official said, emphasizing that all players are required to contribute to the base amount.

All of this tells us that this is not your grandma’s regulatory scheme. There will be pricing of apples and oranges among various broadcasting undertakings making different —but equitable– contributions to Canadian content.

Perhaps that is why the Commission vocabulary is so chock full of regulatory zingers like ‘flexible,’ ‘adaptable,’ and ‘outcomes based.’ It’s a matter of pragmatism as much as deregulatory zeal.

***

Canadian content and Ownership of Intellectual Property

This is without a doubt the most difficult issue before the Commission. You will hear plenty about it over the next year.

The current definition of a ‘Canadian’ program eligible for the array of subsidies available in Canada provides that most of the key creative talent on a show, especially the producer who is quarterbacking the venture, must be Canadian. Those subsidies include ‘video production tax credits’ under the Income Tax Act, film and television financing from the Canada Media Fund, and broadcasters getting credit from the CRTC towards their target for ‘Canadian Programming Expenditures’ (CPE) for airing Canadian shows. If a show maxes out on Canadian talent, the show may be 50% subsidized.

Most of the subsidy programs —the Commission-administered CPE being the exception— also require the Canadian producer retain the copyright for the long term commercial exploitation of the show, in effect making it illegal for broadcasting undertakings to force the producer to surrender that copyright as a condition of putting the show on the air.

The most important thing to keep in mind to understand this complex issue is that broadcasting undertakings —soon to include Netflix and the other Hollywood streamers— could potentially be ordered by the CRTC to contribute to the Canada Media Fund (CMF) as the Canadian cable companies must.

Yet unlike our Canadian cable companies, the American-owned streamers would not be allowed to ‘draw upon’ the Canada Media Fund by purchasing CMF-subsidized films from a Canadian filmmaker unless the streamers are okay with the filmmaker denying them the long term copyright.

The streamers are not okay with that.

You have here the makings of a doozy trade complaint from Hollywood against the Canada for potentially violating the ‘National Treatment’ rules under our international trade deals. In a different context, MediaPolicy explained those issues as they arose 25 years ago during the notorious ‘split-run magazine’ dispute between Canada and the US.

This issue has been long anticipated from the very beginning of Parliamentary debate over Bill C-11 and its predecessor C-10. And you can Search ‘Bill C-11 CUSMA trade complaint‘ and come up with plenty of commentary on it. The most recent contribution from Douglas Barrett on Cartt.ca is a good place to start.

One last complexity to keep in mind: the CRTC only has jurisdiction over the definition of Canadian content for ‘CPE.’ The federal government has governance of the production tax credits and, ultimately, the CMF.

***

It seems only fair to sign off this commentary by allowing CRTC Chair Eatrides the last word:

A new and modernized framework should recognize the new perspectives and opportunities that online undertakings bring to the broadcasting system, and ensure flexibility and adaptability in the future. For these reasons, the Commission intends to apply an approach that recognizes that each broadcasting undertaking or group of undertakings is unique, and that focuses on desired performance standards and measures of success. At the same time, it is essential for the approach to ensure that the principles of regulatory fairness and equitability are upheld across all contributors. Further, by considering the possibility of a group-based approach to contributions (where applicable) the Commission aims to provide greater flexibility and a reduced administrative burden.…

…..the Commission recognizes that it continues to be appropriate for different types of broadcasters – whether traditional or online, Canadian or foreign – to support the audio and video elements of the Canadian broadcasting system in different, yet equitable ways. 

***

If you would like regular notifications of future posts from MediaPolicy.ca you can follow this site by signing up under the Follow button in the bottom right corner of the home page; 

or e-mail howard.law@bell.net to be added to the weekly update; 

or follow @howardalaw on Twitter.

May 12, 2023

The Senate Committee considering the government’s Online News Act is mostly a re-run of the House Heritage Committee’s deliberations on Bill C-18. But sometimes you get something new and intriguing.

Cathy Edwards from CACTUS (Canadian Association of Community Television Users and Stations) was on deck Wednesday night and took the opportunity to explain why the House amended the Bill back in November to ensure that CRTC-licensed community news broadcasters automatically qualify as eligible news businesses, which gets them to the table with Google and Facebook.

The explanation, said Edwards, is that community news stations often employ only a single journalist, south of the ‘two-employed journalists’ cut-off for automatic bargaining rights under section 27(1)(a) of the Act. But those stations frequently employ many technical staff for newsgathering as well as volunteer journalists. Hence the logic for making them another exception to the two-journalist rule, pre-qualifying them as eligible news businesses for negotiations under C-18. The Bill also prequalifies online daily newspapers if already vetted by the federal government under the QCJO federal subsidy program.

That was a delightful rebuff to Google spokespersons and Michael Geist (“Money for Nothing”) who were grouching publicly that Parliamentarians had conferred compensation on licensed broadcasters that “may” produce no online news. (That’s incorrect: an eligible news business must produce news in order to obtain compensation for it. But why be a stickler?).

The reason that CACTUS was back in the legislative fray Wednesday night, pitching to the Senate Committee, is that only eight of 67 community stations are licensed by the CRTC —which explicitly commands them to broadcast news— the rest are either license-exempt or online only. That’s why CACTUS is seeking a further amendment to the Bill in section 27(1)(b). Different from the pre-qualifying section 27(1)(a), this clause explicitly requires the production of news to get to the negotiating table with Big Tech.

As for the provision of news by community stations, the Broadcasting Act commands community stations to provide community news:

As well, the CACTUS brief states:

Our members produce an average of 6 hours of local content per week, 2 of which would be considered civic local news (of the kind funded by the Local Journalism Initiative) with an additional 2 hours of news coverage of non-civic topics including the cultural sector and sports. As such, we are significant producers of information in small communities across the country, in underserved neighbourhoods surrounding large urban areas, and underserved minorities in large urban areas. We produce local content for ~500 cities and villages and are often the only source of truly local news for them. 

***

If you would like regular notifications of future posts from MediaPolicy.ca you can follow this site by signing up under the Follow button in the bottom right corner of the home page; 

or e-mail howard.law@bell.net to be added to the weekly update; 

or follow @howardalaw on Twitter.

May 7, 2023

A quick and sentimental word on the passing of Gordon Lightfoot. If you are under sixty years of age you may not appreciate how important the great Canadian folksinger was during his prime songwriting years in the 60s and 70s. The world of Canadian music –or just the world in general– was so much smaller then and he was so big. And his lyrics so iconic and his music so powerful. Rest in peace.

***

This week MediaPolicy published two posts.

The first was a watchdog piece. During the Senate hearings on the Online Streaming Act late last year, it came out that YouTube had commissioned a public opinion poll on C-11 but elected not to publish it. I discovered belatedly that the Abacus poll was nonetheless posted on the Senate website because the chair of the Transportation and Communications Committee had asked for it. The post is about the frailties of public opinion polling, especially when the questions are torqued.

The second post is another instalment in the ongoing story of Google and Facebook playing hardball with Canadian Parliamentarians over the Online News Act, Bill C-18, now in the Senate. MediaPolicy makes yet another suggestion of how we might stop playing tee-ball with Big Tech when they are playing hardball with us.

***

On the subject of Big Tech tactics, NBC reported on Facebook’s significant funding of a US lobby group aligned with Mark Zuckerberg’s opposition to anti-trust legislation before US Congress.

Companies fighting regulation through bearded lobby groups is nothing new, anywhere. But given Big Tech’s extraordinary efforts in Canada, it’s worth tracking what they do.

***

Back on C-11. Hugh Stephens has a helpful set-up piece in anticipation of Bill C-11’s journey through the Canada Gazette consultation and CRTC hearings.

Meanwhile, the Canadian Media Producers Association (CMPA) released its annual industry report (year ending August 31, 2022). It was a bumper year for TV production and film making in Canada with some eye-popping results on the ‘foreign location service’ side (i.e. Canadians making shows for American media companies). Results on the CanCon production side were great as well.

The outcomes moved C-11 opponent Michael Geist to conclude that the political narrative in support of the Bill was a hoax. Or as he put it:

There is no Cancon emergency and no risk to film and TV production in Canada. The Bill C-11 panic over the viability of the sector was little more than a fraudulent lobbyist-inspired talking point with little basis in reality.

On the other hand, CMPA’s report pointed out what industry insiders knew was coming:

But that kind of growth also reflects a number of unique variables, each of them contributing to the significant increases in production activity in 2021/22. Coming out of the COVID-19 pandemic, the industry reversed recent trends and experienced a robust rebound in production activity. That increase was further fueled by general inflationary pressures on productions costs, as it was across much of the Canadian economy. Results for Canadian television production were impacted by Canadian broadcasters restoring their levels of licence fee funding in 2021/22 (even catching up for underspends in prior pandemic years), as well as the continued injection of additional government funding resources made available during the pandemic.

The challenge will be to sustain that level of production activity. The general economy is facing significant economic headwinds, with real concerns about lingering inflation and a possible recession. The prospect of such an economic downturn may impact the general level of economic activity in Canada, including film and television production. Canadian content levels from Canadian broadcasters may be readjusted going forward, as shortfalls from prior years may have been fulfilled.

The following chart reveals the 10-year trend (finally exceeding stagnation levels for CanCon), the temporary suppression of production during the pandemic and the spectacular rebound in 2021-22. Long may it continue:

***

Two weekend reads on the recommendation list are:

If you aren’t saturated already with commentary on ChatGPT and AI, the Globe’s Tony Geller wrote an excellent reflection on whether and how governments ought to respond to what’s happening.

Back on C-11, Josh O’Kane interviewed a series of Canadian artists and crew members from the film production and YouTuber industries on their views of C-11. Really well done.

***

If you would like regular notifications of future posts from MediaPolicy.ca you can follow this site by signing up under the Follow button in the bottom right corner of the home page; 

or e-mail howard.law@bell.net to be added to the weekly update; 

or follow @howardalaw on Twitter.

May 4, 2023

Google and Facebook made their big play at a Senate committee on Wednesday night. That play was hardball, as expected. Facebook says it will block Canadian news if the Online News Act becomes law. Google says it might do the same. 

We must acknowledge that Big Tech has ratcheted up the stakes. The government’s winning strategy on C-18 is in disarray. 

Google and Facebook tabled a raft of amendments gutting the Bill with a rewrite that would narrow the scope of the legislation to full-text news content, effectively eliminating application of the scheme to 99% of the written, audio and video news currently on their platforms.

Big Tech’s real proposal is to create a voluntary news fund to which Google and Facebook would contribute and let Fund administrators sort out which news outlets get access. 

The Fund idea works for Big Tech because the companies harbour dreams of being limited to the minimal contributions that Google is making to news outlets in Taiwan, approximately three per cent of the value they paid under the Australian New Media Bargaining Code, the forerunner of Bill C-18.

In the face of this corporate hubris, Parliamentarians must acknowledge that Big Tech is not offering a face-saving solution. They are offering a humiliating defeat to a sovereign government.

It seems the power game must be played out before a solution can be found. 

Last week MediaPolicy suggested the government amend the Bill to strengthen penalties if Google or Facebook throttle news in avoidance of C-18.

On that point, it is interesting that Heritage officials seemed to concede last week that, under the current wording of C-18, Google and Facebook can deindex Canadian news stories or block posts by Canadian news outlets even though those actions might violate section 53 as inconsistent with the purpose of the Act.

Another card the government is holding is the delayed implementation of the Digital Services Tax. Federal Finance Minister Chrystia Freeland has suspended that three per cent tax on the revenue of offshore digital platforms until 2025 as a fallback option to an international agreement on minimum corporate taxes.

When it was introduced, the DST was described by the government as an ‘audience tax’ on Big Tech for monetizing the personal data of Canadian citizens without compensation. All major Canadian political parties endorsed this tax (in fact it was the centrepiece of the Conservative election platform on Bill C-11).

An announcement to implement the DST early would put the current impasse between the government and Big Tech on a different footing.  

Then perhaps we will find a solution to this mess. When Google and Facebook began making their news throttling threats last year while C-18 was before the House of Commons, MediaPolicy published a post entitled “Must it be War? A Peace Proposal for C-18.” The post canvassed the different amendments available to House and Big Tech that might cool tempers.

It’s not that Facebook and Google haven’t made reasonable policy arguments.

Heading Big Tech’s list of arguments is that the Bill creates uncertainty about the amount Google and Facebook will have to pay to news outlets.

But there are tools within Bill C-18 to deal with that. Michael Geist put his finger on that during his Senate testimony on Tuesday morning when he suggested the Big Tech companies go into negotiations with Canadian news outlets and propose a single fund for the news industry with fixed contributions from Google and Facebook. 

If a deal can be reached including an acceptable amount of funding, and access for all legitimate news organizations willing to accept their fair share of it, the CRTC would likely grant the companies the exemption from further liability contemplated by section 11 of the Bill.

Whatever the solution, it ought to be conceded by Google and Facebook that most capitalists live with uncertainty. It’s known as the free market economy. Possibly the Big Tech monopolists thought they had risen above that inconvenience.

The sleeper issue however is not uncertainty. It’s the Bill’s ‘undue preference’ provisions. That provision in the Act —not included in the Australian legislation— contemplates a CRTC complaint being filed by a Canadian news outlet against Google or Facebook for unreasonably downranking (or blocking) their journalism.

That puts the onus on the digital platforms to defend themselves. That defense necessarily requires them to divulge their deepest commercial secret, their ranking algorithms.

The government acknowledged this concern in November by amending C-18 in the House to narrow the undue preference test to either (a) Google and Facebook preferencing their own news services or (b) punishing news outlets as a bargaining ploy. Importantly, ranking news stories ‘in the normal course of business for the operator’ is a complete defense to undue preference. 

If making the ‘normal course of business’ defense even more airtight is the only thing standing in the way of a peaceful resolution of this political scrap over C-18, it seems hopeful that compromise could be reached.

Whatever path we can find to a resolution, one thing Google’s Richard Gingras told Senators remains compelling: the politics around C-18 are setting up an unrealistic expectation that Big Tech can foot the full bill for journalism in this country.

To be fair to the government, they never made this claim but the expectation is out there in the public debate regardless.

We shouldn’t need Google to remind us that as Canadians we have to come to terms with the options available to us.

Those options are either agreeing upon a coherent public policy in which our new outlets’ loss of advertising revenue is mitigated by private and public subsidies or reject those subsidies and let the market take its course. 

***

***

If you would like regular notifications of future posts from MediaPolicy.ca you can follow this site by signing up under the Follow button in the bottom right corner of the home page; 

or e-mail howard.law@bell.net to be added to the weekly update; 

or follow @howardalaw on Twitter.

Conservative Senator Leo Housakos asked Abacus Data to disclose a YouTube sponsored public opinion poll

May 2, 2023

It can’t be easy being a public opinion pollster. That’s especially true when it comes to taking soundings on detailed government legislation.

Polls are good at capturing the public mood, our gut instincts if you will. In May 2022 Nanos released a poll showing broad support for the federal government’s intentions to pass three “Internet” bills: the Online Streaming Act C-11, the Online News Act C-18 and an as yet untabled Online Safety Act. But it would be foolish to mistake that broad support for specific endorsements of the Bills as drafted.

Then there is the fraught relationship between pollster and client. The political actor that commissions a poll hopes for a particular outcome while the pollster must maintain its professional standards without alienating its client.

That is why we, the consumers of these polls, need to scrutinize very closely what questions have been asked and contemplate the environment in which answers are given.

On October 14, 2022 while the Online News Act C-18 was before the House of Commons, Google published a poll conducted by Abacus Polling that appeared to replicate its criticisms of the Bill through polling results. In a blog post, MediaPolicy.ca suggested the questions were so leading and torqued that the answers were unreliable.

On October 25th, Abacus Polling CEO David Coletto appeared at the Senate hearings on Bill C-11, the Online Streaming Act.

Lead Conservative Party critic Leo Housakos asked Coletto if he had done any polling on the controversial elements of the Bill, in particular the CRTC’s powers to compel social media platforms to recommend more Canadian content. Coletto admitted there was a poll that he had conducted on behalf of Google-owned YouTube but he was not authorized to release it.

In fact, the poll was never publicly released but Housakos asked YouTube to submit a copy to the Senate, now duly posted on the Transportation and Communications Committee’s website.

Here is how Abacus described findings that bolstered YouTube’s case against C-11:

Our research found that video and music have become ubiquitous and essential in the lives of Canadians. Users are overwhelmingly satisfied with the services they use. This positive attitude is driven by several factors, including the content, choice, convenience, and value-for-money offered by today’s streaming services. Access to Canadian content was rated far less important a factor to the experience.

The survey included a section where respondents were asked to react to different scenarios. Each scenario presented a hypothetical change to today’s streaming experience (e.g. Canadian content prioritized in video queries or in content recommendations). Many respondents had negative reactions to the changes. In some cases, their reaction was so strong that users indicated they would cancel the service or go as far as using a VPN to get around the changes.

The study also found that most Canadians are concerned about Bill C-11, the Online Streaming Act. They think it should be up to users to determine what content they see. They feel the Bill’s interventions could negatively impact their access to music and video streaming services.

The poll found that 89% of Canadians stream music or video (not just on social media), compared to 66% consuming content on cable TV, 68% over YouTube itself, and 75% on streaming services other than YouTube. Not surprisingly, 81% of poll respondents described access to streaming as “essential or somewhat essential.”

So far, so expected.

Then the poll jumps straight in to some questionable questions.

• First: How willing would you be to provide information about your residency or nationality in order to upload content to platforms like TikTok or YouTube. [Result: 35% willing, 58% hesitant].

Here’s MediaPolicy.ca’s take on that. The question is aimed at measuring public opinion on the wisdom of requiring Canadian YouTuber creators to declare their Canadian nationality for the purpose of recommending Canadian videos or music. That’s not explained by the question. In addition, the question was asked of all respondents, not the one per cent of Canadians who are YouTube ‘creators.’

• Second: When it comes to which content appears in streaming services, playlists and recommendations, would you rather that content be determined by:

What the streaming service algorithm determines is most relevant and accurate;

or, Government legislation and regulations first, followed by what’s the most relevant content.

Framed this way, the invitation is to choose between YouTube’s unregulated curation versus unspecified government-sponsored content as the top recommendations —relevant or not— before accessing YouTube’s relevant search results. Why anyone, let alone 15% of respondents voted for that Orwellian nightmare is unclear, but to suggest that’s an outcome of Bill C-11 is highly argumentative.

***

Next up in the poll are hypothetical scenarios of how the social media audience might react to YouTube altering their search recommendations as a result of CRTC demands for discoverability of Canadian content.

The question is framed as how likely is it that the respondent would ‘cancel the social media service’ —how does that apply to free service like YouTube and TikTok?— or use a VPN to view unregulated platforms from an American IP address?

• Scenario #1: MUSIC SEARCH: Imagine you were searching for a specific artist or type of music on a streaming service. When the search was complete, 25% of the results appeared primarily because the streaming provider was required to show you other search results.

The MediaPolicy.ca comment: a properly framed question should have specified either “….show you other search results relevant to your inquiry from Canadian artists” or “…show you other search results regardless of relevance because they are Canadian?” Many poll respondents may have assumed the latter.

• Scenario #2: PLAYLIST RECOMMENDATIONS: Imagine you are listening to a playlist of songs or a channel of music dedicated to a particular genre. During your listening experience, 35% of the songs are played primarily because the streaming provider was required to play you certain content.

MediaPolicy.ca: Again, the question fails to distinguish between relevance or non relevance of search results.

• Scenario #3: USER-GENERATED CONTENT #1: Imagine you are on a site that shows user-generated content like YouTube, TikTok, or Instagram and you are searching for something related to an international event or cultural practice. When the search came back 25% of the results and many of the top results appeared primarily because they were Canadian content.

MediaPolicy.ca: Again, the question assumes YouTube would include government-mandated irrelevant recommendations to this search inquiry. The question assumes that YouTube, which need only demonstrate to the CRTC an overall compliance with discoverability, would choose to provide exactly the opposite of the search inquiry. 

• Scenario #4: USER-GENERATED CONTENT #2: Imagine you are on a site that shows user-generated content like YouTube, TikTok, or Instagram and you are searching for something related to a do-it-yourself project. When the search came back 25% of the results and many of the top results appeared primarily because they were Canadian content.

MediaPolicy.ca: Again, the question assumes YouTube will provide Canadian results that lack relevance to the search inquiry. The other issue to consider here is whether ‘DIY’ is a cultural area where CRTC would expect more effort at discoverability. 

***

At this point in the poll, the working assumption embedded in the questions has been over-regulation of content through more (how much more is undetermined) and irrelevant recommendations of Canadian videos.

So Abacus’ next question is very interesting: 

To what extent do you agree or disagree with the following statements?

• It should be up to users to determine what content they want to see (Results: 93% agree or somewhat agree)

• I do not think government should decide what content aligns with Canadian values (84% agree or somewhat agree)

• I am not confident that the government has the capacity to determine what content aligns with Canadian values (80% agree or somewhat agree)

Would the results have been different if the question specified “government” was “the arm’s length regulator, the CRTC?” Maybe, maybe not.

But what the second and third questions inadvertently demonstrate is that the many calls to change CanCon certification to a subjective “Canadian” test may provoke a negative public reaction, which is exactly what defenders of the current ‘nationality of creator” point system say, that the current certification system for Canadian content avoids the thorny issue of state-regulated cultural content.

***

And finally the poll’s headliner question, the one calculated to put a stake through the heart of regulating user generated content:

As you may have heard, Bill C-11, the Online Streaming Act, has passed in the House of Commons and is now pending Senate approval. The Act will extend the powers of the CRTC to regulate online streaming content. This will include regulating Canadian content, including how playlists and recommendations are provided to users.

How concerned are you that these changes will erode the streaming services Canadians can access?

The question makes no distinction between policing content (out of bounds in C-11) and asking YouTube to promote it, let alone how aggressively Canadian programs would be promoted and what actual interference there would be on recommendations relevant to search inquires.

***

Was this unpublished poll buried by YouTube after commissioning and paying for it? We don’t know why it was kept so quiet.

Still the question lingers: after two years of opponents publicly describing C-11 as the kind of ‘censorship’ bill you might find in North Korea, is it possible to solicit public opinion based on questions that aren’t calibrated to what is actually in the Act, or what is practically likely in its application?

Perhaps it’s all moot. The latest government messaging leans towards exempting YouTuber programs from discoverability regulation (mostly a good thing in the estimation of MediaPolicy.ca). Stay tuned.

***

If you would like regular notifications of future posts from MediaPolicy.ca you can follow this site by signing up under the Follow button in the bottom right corner of the home page; 

or e-mail howard.law@bell.net to be added to the weekly update; 

or follow @howardalaw on Twitter.

Graphic from Irene Berkowitz’s 2019 report ‘Watchtime Canada’

April 29, 2023

Yesterday MediaPolicy.ca published some thoughts on the final Parliamentary approval of the Online Streaming Act, Bill C-11.

The sound and fury over the Bill continues to revolve around whether the CRTC will require algorithm-driven recommendations of Canadian videos and music on social media platforms.

It’s been well established that social media users — ranging from major movie studios to individual YouTubers— won’t be directly regulated as businesses, only YouTube will be. But their programs might be if they are sufficiently ‘commercial,’ a line drawing exercise delegated to the CRTC.

The point of our post is that the uncertainty over the eventual CRTC outcome is driving all the political noise and that more certainty might calm things down.

***

The Australian government’s 2021 News Media Bargaining Fund set the precedent for Canada’s Online News Act, Bill C-18. Now the Australians are following Canada’s lead on Bill C-11 with their own version of a Netflix Bill.

Still in policy development, the Australians are tossing around ideas of how the global streamers should contribute to local Australian content.

One of the settled issues is that global streamers won’t be invited to pay their fair share by purchasing programming rights for sports (Time Warner’s Paramount Plus just acquired rights to Australian football). The same with news.

An unsettled issue is how the streamers should meet Australian-content targets: by making their own dramas, documentaries and children’s programming, or by funding Australian media companies to do it?

The film production community wants the big streamers to commission their own made-in-Australia content, but the broadcasters just want the streamers to write a cheque and have no interest in having to bid against the web giants for broadcast rights to Australian shows.

***

If you would like regular notifications of future posts from MediaPolicy.ca you can follow this site by signing up under the Follow button in the bottom right corner of the home page; 

or e-mail howard.law@bell.net to be added to the weekly update; 

or follow @howardalaw on Twitter.

April 28, 2023

Last night the Governor-General conferred Royal Assent upon the Online Streaming Act minutes after the Senate approved it and so public commentary on the Bill has crested in mainstream and social media. Mind you, commentary has been cresting for some time now. And given that we are expecting a cabinet Policy Directive to the CRTC to begin implementation hearings, the wave will roll on for some months yet.

Media coverage —including the Globe and Mail‘s excellent summary— has identified the fuel source for the never-ending flame of controversy.

It’s ‘ambiguity,’ ambiguity about the detailed outcome of whatever discoverability measures the CRTC will take with respect to algorithm-driven recommendations of Canadian content on social media platforms, i.e. YouTube and TikTok.

Specifically which Canadian ‘user-generated’ programs will be included or exempted from the scheme to push Canadian programs to Canadian viewers and listeners on those platforms?

It’s the uncertainty that’s making everyone mad, and I don’t mean ‘angry’ mad either.

For two years now, the opponents of Bill C-11 have been filling the void of uncertainty with worst-case scenarios. The Conservatives have injected a conspiracy theory: that the CRTC will impose pro-government ranking priorities on YouTube and flood the zone with Liberal propaganda.

Even journalists get carried away. Veteran (and Canadian) reporter Paul Vieira told his American audience in the Wall Street Journal yesterday that under Bill C-11 ‘if a person in Canada searched on YouTube, the results would display videos mostly from Canadian artists ahead of foreign or U.S.-made content.’

Mostly?

Ahead of foreign or US-made content?

There is no evidence that will be the outcome. The Heritage Minister Pablo Rodriguez has never suggested it.

On the other hand the Minister insists on repeating the nostrum that ‘platforms are in, users are out.’ That means citizen uploaders won’t be regulated as broadcasters and be required to make ‘Canadian’ videos. But the recommendation ranking of a YouTubers’ video might be regulated. We’ll have to see what the arm’s length regulator CRTC decides and whether it impacts Canadian YouTubers. That’s a lot of ambiguity to live with.

We are probably looking at a high and low water mark for CRTC outcomes.

On one hand, former CRTC chair Ian Scott opined to the Heritage Committee last year that social media platforms could satisfy demands for promoting Canadian content without ever touching their recommendation algorithms.

At the other end of the spectrum of outcomes, representatives of the music industry in Québec want a dramatic increase in the rock-bottom consumption of French-language songs on Spotify and YouTube. That seems difficult to achieve without a major tweak to recommendation algorithms for IP addresses in Québec and minority language communities.

Here are some comforting thoughts.

First, the blank canvass of unknown regulatory outcomes will get filled in fairly quickly. The CRTC may set some parameters in its Notice of Consultation for public hearings. Also, when participants in the CRTC’s public hearings file their initial representations, the focus may narrow further.

Second, the legislation gives the CRTC the authority to make YouTube tweak its algorithms in order to get quantifiable results on promoting Canadian programs. But the legislation denies the CRTC the authority to dictate any particular change to algorithms. That leaves the algorithm design in the hands of the platforms.

Third, the CRTC may choose not to pursue a ‘one-size fits all’ policy on discoverability. There may be more intrusive expectations for French language music and none at all for news commentary or home renovation videos.

Expect the CRTC to make generous use of its well-used exemption authority to leave the vast majority of citizen and solo artist videos untouched for the foreseeable future.

***

If you would like regular notifications of future posts from MediaPolicy.ca you can follow this site by signing up under the Follow button in the bottom right corner of the home page; 

or e-mail howard.law@bell.net to be added to the weekly update; 

or follow @howardalaw on Twitter.

Abacus Poll on Defunding the CBC

April 23, 2023

On Friday morning MediaPolicy published its recommendation to the Prime Minister that he concede that Pierre Poilievre has succeeded in making the CBC into a wedge issue, and to meet that challenge.

An hour later, Twitter’s Elon Musk repealed his ‘government funded’ label for CBC, walking back the calculated insult to CBC’s editorial independence as encouraged by Poilievre.

An hour after that, Abacus published a poll suggesting that public opinion supportive of ‘defund the CBC’ has broken out from the Conservative base and sits at 45%.

***

On April 20th Google’s senior American executives Kent Walker and Richard Gingras appeared before Heritage Committee MPs after ignoring their previous summons in March to explain their news blocking activity (the Globe and Mail story is here).

Walker and Gingras were exceedingly polite, which just goes to show you they do understand Canada after all. Although they never said ‘sorry.’

Heritage MPs wanted a number of questions answered and confessions made about Google’s five-week news blocking demonstration, fired as a warning shot across Parliament’s bow over Bill C-18, the Online News Act. It was unusual to see the happy warriors Conservative Rachael Thomas and Liberal Chris Bittle team up for a little hazing.

For their part, Walker and Gingras delivered a polished performance trying to turn the meeting into a discussion of why Canadian MPs ought to walk away from the legislation they approved in December.

To summarize Google’s position:

• Yes, they could confirm that as the Search Engine for 95% of Canadians, Google blocked news to 1.1 million Canadians as a ‘test’ for a permanent block of 34 million Canadians should Bill C-18 become law.

• Yes, they might follow through on the threat.

• No, they won’t say how much money they would put behind their proposal to fund Canadian journalism on a voluntary basis if C-18 was withdrawn. (On this point Alberta MP Martin Shields stole the show).

• No, they won’t disclose the Canadian activist groups they are secretly funding in an alliance against Bills C-11 and C-18 (to their credit, some organizations have always acknowledged the funding).

• Yes, Google says they believe that C-18 will shortchange the small Canadian news outlets that Google itself has ignored in a series of voluntary compensation arrangements made mostly with larger newsrooms.

• Yes, Google played ball in Australia when it introduced the forerunner of Bill C-18 and made approximately $130 million worth of voluntary agreements with almost all Australian news outlets, large and small, but Google says Australian News Media Bargaining Code was different than Canada’s C-18 (it’s not, but that’s another blog). Correction: an earlier version of this post included Facebook’s share of the Australian settlements.

Now that Bill C-18 has passed the House of Commons —it goes to the Senate’s Communications Committee very shortly— the question arises why Google has stepped up its threats to block news even though the horse is out of the barn.

One reason: Google still frets about preventing the Australian-Canadian contagion that C-18 represents from spreading to United States Congress. An American version of Bill C-18 almost made it through Congress in December, only to fall off the table at the last moment. It appears stalled for now. If it revives, Google might pull the trigger on news blocking in Canada as an offshore demo.

The other reason for the threats is a classic bargaining stratagem.

It’s not just Canadian Parliamentarians who were supposed to notice Google’s news block. The target audience included every Canadian news outlet with whom Google will be negotiating as soon as the Senate approves Bill C-18.

Google has now made the proverbial capitalist threat ‘accept our terms or we will close the plant.’ You can’t un-say that kind of threat.

That kind of threat is not illegal in a conventional labour impasse where employers have the right to lockout and workers have the right to strike.

But a capital strike is not permitted in Bill C-18: the legislation mandates dispute resolution by binding arbitration, not the withdrawal of services. Parliament made it so because Google has a near monopoly on Search Engine distribution of news. In short, Google is obliged to play ball.

Parliamentarians pay attention: if Google figures it’s going to play hardball, we better not be playing tee-ball.

The Heritage Minister ought to have one last look at section 51 of the Act (which deals with blocking or throttling news content) and section 61 (which caps the daily fine for violating the Act at $15 million) in case a Senate amendment is in order.

***

Last weekend I hyped the Canada Screen Awards broadcast on CBC on the Sunday night. This was the first year of an experimental format: a taped and curated one-hour show instead of the traditional live, two-hour award ceremony.

The next morning, the Globe’s Barry Hertz panned it. I mean, he hated it.

In some ways, it was deserved. The show was not subtle in asking Canadians to support the Canadian film and TV industry as our patriotic duty: yet host Samantha Bee anchored the show from…her home in New York City.

On the other hand, the show did a lot of things right, beginning with showering honorary awards on Hollywood-made-it Canadian talent like Simu Liu, Ryan Reynolds, and Catherine O’Hara. People watch award shows to see the stars, so you might as well include the best.

Hertz frowned on the lack of trailers from nominated films, another reason why people watch. Perhaps he gave up before the 53 minute mark (of a 62-minute show) when we finally got trailers from the films nominated for the ‘Audience Choice’ award. Three minutes of them.

A brave attempt at changing the show’s format. The old format is dying (even the Oscars’ numbers are diving, and look at the money they spend). Next year, should be better right?

By the way, here are CBC reviewer Jackson Weaver’s recommendations for new CanCon being released.

***

The recommended weekend read is Tim Wu‘s mildly dystopian vision of the future of work in the age of AI.

Wu speculates that as a productivity-enhancing technology, AI could put us out of work but the other thing to expect is that it will touch off a work-speed up for humans. Didn’t e-mail raise expectations of your availability and response time?

***

If you would like regular notifications of future posts from MediaPolicy.ca you can follow this site by signing up under the Follow button in the bottom right corner of the home page; 

or e-mail howard.law@bell.net to be added to the weekly update; 

or follow @howardalaw on Twitter.

April 21, 2023

Last week the Globe and Mail’s Lawrence Martin wrote a convincing piece suggesting Justin Trudeau might be past his best-before date and should pack it in.

Martin’s thinking is that the PM can take pride in his achievements in eight years of government and that it isn’t going to get any easier for him, or the Liberal Party, to win the next election with him as leader.

That column was published just before Pierre Poilievre lit up the Canadian media universe by publicly inviting Twitter’s Elon Musk —-you had to wonder if the invitation was preceded by a private phone call— to disparage the CBC as ‘government funded.’

‘Government funded’ is an intended disparagement. Twitter editorial policy is to label publicly funded media as ‘government’ instead of ‘public’ if the newsrooms are not independent journalists, free from the funder’s interference.

You know what ensued. Musk gleefully complied with Poilievre’s request. In case anyone missed the point (and the bro solid to Poilievre), Musk tweeted ‘defund the CBC.’

And over the next week, the chattering class chattered, either to condemn the nuanced disparagement or soak in a bathtub of ‘whataboutism,’ pointing out of the ways in which English Canadian CBC-TV doesn’t measure up to our high expectations, or making the Prime Minister’s and the CBC’s reaction to the disparagement into the issue.

The truth is, it doesn’t matter what the chattering class thinks. After all, we are a tiny slice of the 95% of English Canadian television viewers not watching CBC or the 5% that are. It only matters what normal people think and that’s not us.

The Globe’s Konrad Yakabuski took a stab at putting his finger on CBC-TV’s reputation and opined with a little cheek:

English CBC has been consumed by questions around diversity, reconciliation and lived experience, sometimes at the risk of blurring the lines between journalism and activism. This may explain why so many Conservatives see it as being in cahoots with a Liberal government that, well, has been consumed by questions around diversity, reconciliation and lived experience.

You might dispute Yakabuski’s choice of the word ‘consumed:’ the term ‘journalistic courage’ also comes to mind. But point taken. He’s identified an important perception of CBC.

Still, CBC isn’t doing too badly in the court of public opinion of normal, non-chattering Canadians.

According to the last CBC public report, 77% of Canadians support the idea of a national public broadcaster. Seventy-six per cent say that CBC does a good job as a news provider. There was no metric for how many of Canada’s 17.2 million taxpayers approve of the job CBC is doing as a media organization, overall.

The report did say that CBC English TV captures only 4.4% of the national audience, below its 4.9% target. For French language Radio-Canada TV, the audience number is 22.6%.

Can we close that gap? No, not entirely so long as English language CBC-TV competes with American television and streaming services. But the gap between English CBC radio and the French service is much tighter: 14.1% and 23%.

What’s driving the meagre 4.4% television figure when the radio results are so much better? Too little funding for too much responsibility?Differences in regional loyalties ? Age cohorts ? Shifting CBC budget priorities for digital over legacy TV ? Programming choices ? Workplace culture ? Commercials or no commercials?

I have no idea. Neither do you unless you work there.

What we have here is a management problem. Or the shareholders’ perception that there might be one.

This is where you come in Mr. Prime Minister, assuming you are sticking around.

Take hold of this issue and be seen to do so. You gave your Heritage Minister a vaguely word mandate in 2021 to do something about the CBC. So do something.

When you hit the hustings in the next election and the Opposition is crowing ‘defund English CBC-TV and save $1 billion’ you will need a better response than you are only the landlord.

No, we don’t need a Royal Commission that takes three years to make recommendations destined to be ignored by the next government (exactly what occurred in the 1980s).

We need the landlord to take responsibility, now.

The CBC is independent of Parliament you say? Tell that to the voters at the ballot box.

So get on with it. To do the job, you will need someone who is you but isn’t you. With as much of a deadpan as I can muster for this suggestion, appoint a special rapporteur on the CBC, but one that will report back to both federal cabinet and Parliament.

And then you can be the guy who saved the CBC. Wouldn’t that be an achievement.

***

***

If you would like regular notifications of future posts from MediaPolicy.ca you can follow this site by signing up under the Follow button in the bottom right corner of the home page; 

or e-mail howard.law@bell.net to be added to the weekly update; 

or follow @howardalaw on Twitter.

April 16, 2023

Yesterday MediaPolicy.ca published our regular weekend blog post. It covered the Broadcasting Participation Fund’s approaching funding crisis.

The BPF is a non-profit organization that funds public interest advocates whom appear before the CRTC on files that are especially important to Canadian audiences and subscribers (consumer advocates for issues arising out of broadband and wireless regulation are covered by a parallel scheme under the Telecommunications Act).

The BPF issued a press release last week highlighting what has been known for a few years: its dwindling financing is captive to a series of ad hoc contributions from big media companies like Bell as a condition of the Commission approving their mergers and acquisitions. Otherwise, the BPF has no predictable source of income.

What the press release didn’t say —-and MediaPolicy.ca overlooked—- was that Bill C-11 has a fix for that situation as follows:

11.‍1 (1) The Commission may make regulations respecting expenditures to be made by persons carrying on broadcasting undertakings for the purposes of…

(c) supporting participation by persons, groups of persons or organizations representing the public interest in proceedings before the Commission under this Act.

That change had been recommended in January 2020 by the government’s blue-ribbon advisory panel, the Broadcasting and Telecommunications Legislative Review committee (sometimes known as the ‘Yale Committee’ in the name of its chair).

The government acted upon it in Bill C-11. Contrary to MediaPolicy.ca’s previous post, the recommendation did not fall on deaf ears.

The regulation contemplated in section 11.1 (1) (c) could result in a sustainable stream of income for the BPF, or any another public interest organization, financed by ‘broadcasting undertakings.’ Under C-11, those broadcasters include not only Bell and the other big Canadian media companies, but also Netflix, Disney, YouTube and other foreign online undertakings.

A companion recommendation made by the Yale Committee was for the CRTC to develop further transparency and reporting obligations for public interest groups receiving this broadcaster-originated funding.

***

If you would like regular notifications of future posts from MediaPolicy.ca you can follow this site by signing up under the Follow button in the bottom right corner of the home page; 

or e-mail howard.law@bell.net to be added to the weekly update; 

or follow @howardalaw on Twitter.