Last week MediaPolicy published two posts in anticipation of tomorrow’s commencement of CRTC proceedings to implement the Online Streaming Act Bill C-11.
The first post reviewed Heritage Minister Pascale St.-Onge’s final tweaks to the federal government’s broadly worded policy preferences it wants the Commission to follow. There was a surprise addition and perhaps a not so surprising omission.
The second post was a primer for the policy-curious who intend to follow this first of three rounds of CRTC hearings on C-11.
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The Parliamentary hearings for Bill C-11 in 2022-23 were dominated by the debate over regulating YouTuber videos.
The YouTuber advocacy group Digital First Canada opposed regulation of their user-uploaded videos and at least partly won that battle when both the CRTC and the Heritage Minister announced that for now the CRTC won’t regulate YouTuber videos to meet “discoverability” outcomes for Canadian content.
But it seems the Canada Media Fund thinks Canadian YouTubers are deserving of state support anyway and announced a pilot project (initially at a modest $500,000) to subsidize Canadian YouTubers. The Canada Media Fund typically funds Canadian content that winds up on regulated broadcast platforms so there is a bit of a YouTuber “have my cake and eat it too” going on here. The upside is that deserving Canadian artists and content will get support in the burgeoning “creator economy” platform.
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My neighbour, the late metallurgist, political thinker and peace activist Ursula Franklin, used to discourage what she called “awfulizing” about bad news.
Mea culpa, that happens regularly in this space when the latest metrics are published on the declining capacity in Canadian news journalism.
The Toronto Metropolitan University’s annual update to its news poverty survey produced these numbers of local news outlets, of all medias, that closed or opened since 2008:
Cutting the data to include increases or decreases in coverage by the newspaper outlets that didn’t close, TMU reported thus:
Chicago’s Medill School of Journalism (at Northwestern University) also released a report analyzing the socio-economic impact of the lost news coverage at the county level across the United States. The creeping news poverty skewed to a rural, older, lower income, and less educated demographic:
Research released by the American Pew Research Institute noted another important metric, this one concerning the regular consumption of news on social media.
The eye-catching statistic was the meteoric rise of news consumption on TikTok:
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Graphic illustration from cultural advocacy group Friends
November 17, 2023
On Monday the CRTC begins three weeks of public hearings on the key points of supporting Canadian content as Bill C-11 brings online platforms into the regulatory circle for the first time.
As typically happens, Parliament paints broadcasting legislation with the broad brushes of principle and ambiguity and then hands off the half-finished canvas to the CRTC. Having also received the Heritage Minister’s somewhat inscrutable policy preferences through last week’s Policy Direction, the CRTC is now tasked with completing the regulatory portrait.
It’s the first of three rounds of Commission hearings over the next year. The popular interest in C-11 normally creates its own cold fusion of energetic news reporting, so for those who will be following the proceeding here’s a basic primer of what is at stake in this first go around at the Commission.
The main task of the Commission’s “Step 1” hearings is to establish a “initial basic contribution” (IBC) to Canadian content to be levied on all broadcasting entities, especially the online streamers, but also licensed Canadian broadcasters, cable companies, and even social media platforms such as YouTube.
The Commission’s proposed IBC —“proposed” as in it’s not decided yet but it’s going to happen anyway— is a cash-only contribution to Canada’s various media funds that subsidize “Canadian” programs.
At the moment, only Canadian cable (and satellite) companies make such cash contributions, pegged since the 1990s at a robust five per cent of their annual revenues (the cable industry’s gross profit margin was 11.2% in 2021-22).
The lion’s share of the $390M in annual cable cash goes to the Canada Media Fund and a short list of bespoke Certified Production Funds (CIPF). After the CMF money is matched by the federal government, the CMF and CIPF cash becomes ten per cent of the financing for Canadian television shows, especially high-cost dramas and documentaries.
As for Canadian broadcasters —major networks as well as “indie” programmers like APTN, Wildbrain or OutTV— they don’t pay into media funds. Instead, they make their contributions to Canadian content in kind, not in cash, by programming Canadian shows, profitable or not. The usual in-kind programming contribution requires these broadcasters to spend about 30% of their revenues on Canadian shows that they either make in-house or commission from Canadian video producers. The Commission calls it Canadian Programming Expenditures (CPE).
(Radio operators also contribute cash, on a much smaller scale, to musician development media funds FACTOR and MusicAction).
As yet, the foreign streamers don’t contribute to Canadian content, neither in cash to media funds nor in kind within their own programming offerings. That’s about to change with Bill C-11.
The Commission wants to move quickly to get streamer cash into the broadcasting system to make up for the cable companies’ declining contributions to media funds, essentially reinflating the tires on the funding of Canadian programming.
So the question is not if the Commission will establish an IBC, but what the tariff will be and whether any broadcasting entities will be exempted.
Some of the regulatory filings submitted to the Commission in advance of the hearings don’t signal a harmonious atmosphere over the next three weeks. The large Canadian media companies are cranky and they have proposed that the US streamers pay in cash at a tariff set at twenty per cent of their annual revenues. That’s a non-starter, and they know it.
The streamers are not cranky, but they are arrogant. In an act of collaborative defiance, the Californian cartel of the Motion Pictures Association of America, Netflix, Apple, Amazon, and Disney —also Spotify on the music side of the streaming ledger— oppose any cash contributions to Canadian media funds and have refused to name a price they would pay. In other words, a tariff set at zero. That’s also a non-starter, and they know it.
The IBC will be the number one focus of these upcoming “Step 1” hearings.
But it won’t be the Commission’s exclusive focus. Later this year in Step 2, the Commission will look at Canadian programming obligations beyond the IBC. Those will be the Canadian Programming Expenditures, the “in kind” programming of Canadian content. Also in Step 2, the Commission will set expectations of “discoverability,” meaning the priority and promotion given to Canadian programming. Finally, the Commission will review the definition of a Canadian program, a perennially contentious set of criteria determining what Canadian programming is eligible for subsidies from the CMF and government tax credits and also what programming expenditures count towards fulfilling CPE obligations.
All of these Step 1 and Step 2 issues weave together into an overall broadcasting policy for Canadian content. So the Commission is expecting Step 2 considerations of Canadian Programming Expenditures, discoverability and Canadian programs to bleed into the Step 1 debate over the IBC over the next three weeks.
Beyond the tariff-setting for the IBC, expect to hear a lot about to whom the media fund cash ultimately flows.
The CMF and CIPFs currently subsidize Canadian television producers to make shows that they license for broadcasting to Canadian networks and indie channels. As well, there is a tiny $19M Independent Local News Fund that bankrolls local news, but only at 18 independent stations not owned by the CBC or the Canadian news networks.
The list of worthy recipients is going to proliferate, the only question is how far.
The Indigenous Screen Office is staking out its claim as a new media fund, making the pitch to be its own CMF for funding Indigenous video content. A similar request for music development has been submitted by a little known group, the Indigenous Music Office.
The Heritage Minister has asked the Commission to consider a more comprehensive local news fund, available to some or all of the 70 local stations operated by the CBC and private TV networks.
Another candidate for a possible media fund is what you might call “the public service channels,” or what the Minister has called programming “of exceptional importance.” That might include programming that is licensed by the Aboriginal Peoples Television Network, Accessible Media, the Weather Network, the gay and lesbian-focussed OutTV or the multi-ethnic channel OMNI. The Black Screen Office has just been recognized by the Commission as a CIPF, so that will also be part of the funding discussion too.
Despite their refusal to name a price for the IBC tariff, the American streamers are talking up the creation of bespoke media funds owned and operated by each streamer as a way of sending cash to, for example, Indigenous producers who would sell their programs directly back to their Hollywood patron: a Netflix Production Fund or a Disney Production Fund is what they have in mind.
That’s enough of a primer to get you started. The Commission’s official notice of consultation will take you a layer deeper. More to come over the next three weeks.
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The Minister’s amendments to the Policy Direction, first issued in draft by her predecessor Pablo Rodriguez in June, were few and subtle.
The two most meaningful changes were made to paragraph 8 of the Direction, listing the ways in which the Commission ought to impose regulatory obligations upon Canadian and foreign broadcasters, in a “flexible and adaptable framework.” That’s regulatory semaphore for “don’t overdo it.”
St.-Onge’s first tweak was to add the simple words “where appropriate” to the existing requirement to “minimize the regulatory burden on the Canadian broadcasting system” in paragraph 8(a).
The original text from last June had been seized upon by both foreign streamers and Canadian broadcasters as the Minister telling the Commission to reduce the costs of Canadian content obligations. A chorus of cultural groups responded that Rodriguez’s Policy Direction said no such thing —and there were no amendments to Bill C-11 suggesting that the reduction of costs is part of the Commission’s mandate— and the Minister’s Direction was only referring to administrative burdens, i.e. paperwork.
St.-Onge’s “where appropriate” doesn’t necessarily resolve that argument, but it does appear to soften whatever section 8(a) means.
Her second tweak was to add a new paragraph 8(g) stating the CRTC should “where appropriate, foster collaboration between Canadian and foreign broadcasting undertakings.”
This new text in the Policy Direction appears to come out of left field but is in fact directly responsive to Bell’s previously unsuccessful efforts to amend the legislation in a way that would empower the Commission to incentivize Netflix (and other streamers) to retail premium content through co-production or joint venture with Canadian broadcasters like Bell. MediaPolicy wrote about that proposal last year here and here.
The most notable omission among the St.-Onge’s amendments to the Policy Direction was a revised guideline on the discoverability of Canadian content in Paragraph 6. As discussed previously in this space, Rodriguez’s Policy Direction ignored the clear mandate in section 3(1)(r) of Bill C-11 for the CRTC to instruct streamers to “make recommendations” of Canadian content on their platforms to subscribers. This is of special importance to the availability of French language music, significantly under represented in the consumption of audio content distributed by Spotify and other major streamers.
St.-Onge has left Paragraph 6 untouched. On the other hand —and it’s difficult to discern whether this is connected to the Direction’s silence on content recommendations— St.-Onge added a new subparagraph 12(f) telling the Commission to “ensure that expenditure requirements [for broadcasters and streamers] support the creation and availability of programming in French, in recognition of the minority context of French in Canada and North America and the specific challenges involved with creating and making available original French language programming.”
One last notable change in the Policy Direction is that any reference to strengthening programming for Black and racialized Canadians has been broadened to include all “equity-seeking and ethnocultural groups.”
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ISED Minister François-Philippe Champagne is overseeing a public consultation on copyright
November 12, 2023
Yesterday MediaPolicy posted an update on the political trouble brewing in Québec for federal Heritage Minister Pascale St.-Onge over regulatory support for French-language music streaming on Spotify and the other global platforms.
In my view, French language music is a test case for whether the mandate given to the CRTC under the Online Streaming Act is going to be taken seriously where the discoverability of Canadian content is at a severe disadvantage in the Internet media environment.
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The 118-day Hollywood actors’ strike is over. SAG-AFTRA is claiming victory and Netflix’s Ted Sarandos doesn’t disagree, publicly commenting “we didn’t just come toward you, we came all the way to you.”
Major issues were compensation, health benefits and the studios’ use of AI. The settlement follows resolution of the 146-day Writers’ strike in September.
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The federal Department of Innovation, Science and Economic Development’s December 4th deadline is approaching for public submissions on the copyright issues raised by AI large language model products that scrape the Internet to ingest media content.
Here is a brief summary of the issues from a Bay Street law firm. Here is the ISED consultation document:
The US is in the midst of a similar public consultation and The Verge published a handy summary of the arguments made by Big Tech and the AI industry. Those arguments could be boiled down to this: our AI products ought to be protected by copyright and the content we scrape to make them should not.
There is of course more nuance than that. Meta says it’s ingesting so much content, from so many creators, that individual payments for content would be trivial, so why bother (tell that to Getty Images, which is suing for unlicensed copying of its enormous photo library).
Google says that unlicensed ingesting of text and images is like “reading” or “studying” the scraped content but not “copying.” Other less risible submissions from Anthropic and Adobe get to the heart of copyright theory: where is the line between imitating an idea and copying the corporeal expression of an idea?
Still other submissions put the issue even more starkly: do society’s interest in the productivity gains from AI outweigh the property rights of creators? However these tech companies then want to claim copyright for their AI products, once the copyright holiday on content scraping is over.
The Copyright Office should clarify publicly that use of publishers’ expressive content for commercial generative AI training and development is likely to compete with and harm publisher businesses, which is disfavored as a fair use.
Substantial transparency measures should develop around the ingestion of copyrighted materials for uses in generative AI technologies.
Further development of relevant licensing models should be encouraged, including by acknowledging the potential feasibility of voluntary collective licensing to facilitate licensing for ingestion of news and media materials for generative AI purposes.
The Copyright Office should swiftly promulgate an updated registration option to enable online news publishers to register groups of news articles published online.
Considering the large bargaining power disparity between media publishers and very large online platforms, measures to correct this negotiating disparity, such as the Journalism Competition and Preservation Act, should be supported.
Measures to address the scraping of protected content from third-party pirate websites should be adopted.
In both the US and Canada, the ingesting of these policy recommendations (to indulge in a little copyright humour) may lead to legislative action or, possibly, remain a public discussion while lawsuits make their way through the courts under current copyright legislation.
The copyright issues raised by AI are just one piece of a much larger political-technological phenomenon. The issues of public safety, national security, spreading deep fakes and disinformation, job loss, and harm to children are already obvious. On these, Columbia University professor Tim Wu has a thoughtful piece in the New York Times.
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Pressure is mounting on Heritage Minister Pascale St.-Onge to amend the federal government’s Policy Direction to the CRTC to require music streamers to push French-language songs on their platforms. It’s expected that the Minister will finalize the Policy Direction prior to the CRTC’s public consultation on the implementation of Bill C-11, commencing November 20th.
This past week Québec’s National Assembly passed an unanimous motion asking the major music platforms to “adapt their algorithms in order to promote the discoverability of Quebec music.”
The motion was in response to the dramatic underconsumption and lack of promotion of French language music on Spotify and other global streaming platforms in Québec, especially by younger Québécois. The statistic frequently cited is that French language songs constitute only eight per cent of streamed music in Québec. This is attributed to a lack of promotion, algorithmic or otherwise, by the streamers.
The problem was raised in the Parliamentary process for the Online Streaming Act, as early as March 2021 when it was debated as Bill C-10, by the leading advocates for the French language music community, ASDIQ and APEM (although it ought to be noted that their English Canadian counterpart, CIMA, opposes regulatory intervention into algorithm recommendations).
In response, Bloc Québécois MP Martin Champoux won support of the NDP and the Conservatives to amend C-10 to provide that streamers “must clearly promote and recommend Canadian programming, in both official languages as well as Indigenous languages, and ensure that any means of control of the programming generates results allowing its discovery.”
The emphasized legal text leaves no doubt that the streamers “must” push French language music by “any means of control” —an allusion to algorithmic-driven “recommendations”— to attain “results.” As Champoux told his fellow MPs at the time, “c’est l’intention derrière cet amendement. Je veux que Spotify et Apple Music envoient des recommandations de contenu de nos artistes canadiens et québécois.”
But two years later when then-Heritage Minister Pablo Rodriguez unveiled his C-11 Policy Direction to the CRTC in June 2023, the mandate spelled out in Champoux’s amendment was conspicuous by its absence. The word “recommendation” did not appear and, to the contrary, the CRTC was directed to minimize interventions with streamer algorithms. Rodriguez’s view was already anticipated by the Commission in its Notice of Public Consultation which signalled its deference to the streamers’ well known opposition to algorithmic changes.
Not every “must” in the Broadcasting Act gets implemented by the CRTC, but Rodriguez’s Policy Direction and the Commission’s Notice of Consultation look very much like flouting Parliament’s specific instructions.
All of this fits into the broader context of Québec’s cultural politics in response to Bill C-11. After the legislation passed the Senate in February 2023, Québec’s CAQ government suddenly demanded a special right of consultation in federal broadcasting matters affecting Québec.
The substance of the demand was not a surprise. Québec has never relinquished its constitutional claim to jurisdiction over broadcasting (despite a Supreme Court ruling against it) and a special ‘right of consultation’ for official language minority communities (OLMCs) had been inserted into Bill C-10 by the Liberals.
What was surprising was the timing of the CAQ demand: eighteen months had elapsed since the Liberals’ amendment favouring OLMCs and the Bill was almost in the Governor General’s hands for Royal Assent.
CAQ is now saying it’s ready to make a political fight of it. Citing the lack of a special consultation right or federal action on music streaming recommendations, the Legault government is promising a yet to be defined provincial foray into broadcasting in 2024. Perhaps cognizant of the constitutional hurdle of federal jurisdiction over broadcasting, Québec’s language Minister Jean-Francois Roberge said the province “will go as far as the areas of jurisdiction, laws and taxation allow it to do.”
For good measure, the federal Bloc Québécois has introduced a one paragraph private-member’s Bill in the House of Commons that would deal with the consultation issue.
This puts the Minister in a prickly situation. St.-Onge became an MP in the 2021 election, winning her Brome-Missisquoi riding by a margin of 196 votes over the Bloc.
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This week The Logicbroke the story that the Liberals’ long promised and studied Online Safety Bill has been handed over for Parliamentary sponsorship from Heritage to Justice. The legislation would be the third in the federal government’s Internet trilogy, following the Online Streaming Act Bill C-11 and the Online News Act Bill C-18.
The story suggested that responsibility had been transferred, but not the actual file, citing terse statements from Heritage and Justice communications officials. The take-away may be that the Liberals have bumped the legislation to the back of the Parliamentary queue.
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English-reading Canadians may not be aware that it was a disastrous week for mainstream media in Québec.
The Québecor-owned television network TVA laid off 547 employees, one-third of its staff. Of those, 98 jobs are being cut from its regional stations in Trois Rivières, Lac St.Jean/Saguenay, Rimouski/South Shore and Sherbrooke. Announcements suggest those stations will move to a central casting model with one news broadcasting studio in Québec City servicing the regional bureaus. Also, TVA is eliminating its in-house produced entertainment programming and will acquire independent productions instead. The Montréal studio will be sold and rehoused in Québecor’s Journal de Montréal building. The real estate housing the regional studios may also go on the market. Broadcast Dialogue has a thorough report.
In print journalism, Transcontinental has terminated home delivery of its Publisac product —-flyer packs in plastic bags that piggyback free community newspapers— in response to Montréal’s ban on unsolicited mail and Canada Post’s competing Admail service (which is carrying on despite the municipal ban). News outlets may move to drop boxes.
The double-whammy has gripped political debate in Québec. Premier François Legault has promised unspecified provincial support for media in the Spring budget.
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The dwindling 2023 calendar means deadlines on a couple of big media files, the first being the threat of Google’s throttle of Canadian news in response to Bill C-18.
The other deadline is that Canada’s Digital Services Tax comes into effect at the new year. The DST is the $900 million corporate tax on Big Tech multinationals that are strategically evading nation-by-nation tax liabilities.
MediaPolicy.ca has been following this file off and on: the US has broken its agreement to adopt the comprehensive OECD agreement on minimum corporate taxes owing to implacable opposition from House Republicans. Most countries have agreed to suspend their plans for the national Digital Services taxes pending replacement by an OECD deal. Canada has not (and Britain and France refuse to repeal their own).
The US Ambassador to Canada David Cohen has been dutifully shaking his fist at Canada, promising trade retaliation and a “big fight” in spite of the US failing to ratify the original OECD agreement. Recently, he more temperately conceded that Canada’s tax was “not crazy.”
Finance Minister Chrystia Freeland is being temperate as well, quoted by Reuters as saying she is “cautiously optimistic” that a deal can be reached.
According to news reports there have been attempts to re-negotiate the OECD deal —-presumably to give US President Biden another chance to win Republican support—- described by The Logic as “grinding along slowly.” In any event, it’s difficult to image House Republicans agreeing to accommodate Biden on anything over the next twelve months running up to the November 2024 elections, so hold on to your hat.
The Digital Services Tax has been endorsed by the Conservative Party and was a central plank in its cultural platform in the 2021 federal election, “to make web giants pay their fair share.”
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If you are looking for new reading material on media, MediaPolicy just reviewed Hugh Stephens’ “In Defence of Copyright” here, which was unexpectedly fun reading.
Another compelling read is former WarnerMedia and Hulu CEO Jason Kilar’s speculation on what a successful streaming video business model might look like if US studios are to emerge from the disruption of the cable TV model.
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If ‘The Copyright Channel’ was a television show, no one would watch it. Too cerebral by half.
Yet the rights of media creators and sellers —contested by the public’s eager and unlicensed consumption of content— keep popping up in any number of the pressing media policy issues of the day. High-budget movies are pirated. Studio music is illicitly streamed or downloaded. Google can re-publish a portion of a book without the author’s consent. Universities provide free course materials to students after eluding the Copyright Act’s licensing framework to compensate individual authors. Even the Online News Act Bill C-18 involves copyright issues.
University of Calgary academic Hugh Stephens thinks this state of affairs is kind of nuts. “It is a sad commentary on today’s state of affairs,” he begins his new book In Defence of Copyright, “that there is a need for a book defending copyright.”
Stephens might not have written this book 15 years ago. But a lot has changed in the world of intellectual property. One thing is the technological capacity of content sharing software and the Internet trade in pirated digital goods. Another thing is the 2012 amendment to Canada’s Copyright Act that boosted the public’s opportunity to possess copyrighted works they don’t pay for, so long as it is claimed the works are being consumed for “private research and study.”
The origin of “intellectual property”—at least in the English-speaking world— goes back centuries in British common law and is thought to begin with John Locke’s concept of property, that humans mix their labour in nature and produce an inalienable invention (clear a forest, invent the telephone, write the great Canadian novel). But the “property” metaphor has never completely taken hold: perhaps it’s easier to prove a thief stole a goat rather than the expression of an idea.
At its roots, Stephens reminds us, copyright fosters the economic incentive of creators to come up with a good idea, express it in recognizable form, and spend the commercial winnings on the next invention. Unlike the goat, absolute ownership of intellectual property doesn’t exist: copyright expires after a century and even before that it can be lawfully purloined for “private research and study.” Free goat’s milk, as it were.
The fun thing about Stephens’ book is he’s a good writer and a better storyteller. You won’t be bored and your eyes won’t glaze over on the technical descriptions of copyright (he doesn’t dive too deep into the legal stuff, for that you might check out Lesley Harris’ Canadian Copyright Law.)
One story he tells with evident frustration is the successful dismantlement of the tariffed royalties that Canadian universities used to pay to authors for the licensed distribution of their educational materials to students. The Supreme Court of Canada allowed universities to withdraw from this collective licensing regime administered under the federal government’s copyright board, leaving hundreds of individual authors the option to hire lawyers to sue for copyright infringement. The universities, Stephens notes, now pay as much in administrative costs to manage their infringement liabilities as they did in royalties.
The university’s victory was celebrated by advocates of “users’ rights,” most volubly by the University of Ottawa’s Michael Geist. Stephens is miffed by academics who lean hard against copyright while drawing public salaries to support their own writing:
Many copyright holders are determined to protect their economic interests. After all, for many, it is their sole or primary livelihood…But for some authors, economic return is not their primary consideration. Many are academics who are paid to undertake and publish research. You might say that it is part of their day job. Many of these academics are also in the forefront of opposition to strong copyright laws from a philosophical perspective, arguing that copyright law gets in the way of the free sharing of knowledge. It is easy to argue for free information if your work is subsidized in some other way.
Stephens footnotes that paragraph to the Creative Commons project whose sponsors advocate for authors to pre-emptively license their work for free public distribution. That includes an endorsement from famed Canadian author Cory Doctorow:
As a writer, my problem is not piracy, it’s obscurity, and [Creative Commons] licenses turn my books into dandelion seeds, able to blow in the wind and find every crack in every sidewalk, sprouting up in unexpected places.
I would just note here that I paid full price for my copy of Mr. Doctorow’s last book.
Where next? The importance of copyright, and campaigns to limit it, is likely to intensify again with the surge of content-scraping Artificial Intelligence products made available on Tech platforms. Stephens’ book is a good preparation for that debate.
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The first was a take on the stand-off between Google and the federal government over the Online News Act Bill C-18 and the pending throttle of Canadian news on Google’s search engine. I had been saving up my thoughts about the Bill for several weeks and have spilled them in this longer article that was originally published by the Institute for Research on Public Policy.
The other post speculated on how Heritage Minister Pascale St.-Onge might edit the government’s policy guidelines to the CRTC on implementing the Online Streaming Act, Bill C-11. Practically speaking, the government can use a Policy Direction to nudge the CRTC towards outcomes such as equitable contributions by US streamers, regulatory relief for Canadian broadcasters, the definition of a Canadian program for the purpose of subsidies and regulatory obligations, and the discoverability of online Canadian content through platform “recommendations.”
Shortly after the latter MediaPolicy post, Heritage Canada published the public comments it received on its draft Policy Direction. The comments mostly reiterate points debated over the last three years, beginning with the tabling of Bill C-10 in November 2020 and continuing through written submissions to the CRTC this July. I counted 991 comments (not 1400 as I reported earlier) submitted by close to 400 organizations and individuals. So if you want to read them, knock yourself out.
This space has tracked most of these issues over the last three years, but there were at least two issues that I hadn’t noticed before.
The first is how the independent Canadian television producers who supply most of the Canadian programs to licensed broadcasters, especially the CBC, are under siege from all sides.
It is old news that Netflix and the other US studios and streamers are asking for radical changes to the current definition of a Canadian program. Their proposed changes would allow them to supplant Canadian creatives with Hollywood talent. They would also strip Canadian producers of the opportunity to retain the long term licensing rights to the shows they make for Canadian broadcasters but also in the future for US streamers commissioning their own Canadian content.
Now Canadian broadcasters Corus Entertainment and Blue Ant are looking for some kind of roll back of regulatory rules obliging them to commission independent producers to make 75% of their dramas and documentaries, instead of allowing the broadcasters to commission their own affiliated production divisions (for example, the Corus-owned Nelvana).
The Commission has yet to announce dates to consider the definition of Canadian programming but when it does it will be a historic debate.
Another issue that I fished out of the public comments was pointed out by ASDIQ (representing French language independent music labels) and the Montréal based Coalition for the Diversity of Cultural Expression (CDEC). They note that the government’s draft Policy Direction appears to ignore Parliament’s explicit mandate to the CRTC regarding streaming platforms making “recommendations” of Canadian content. The Policy Direction currently employs the softer terminology of “discoverability” and “showcasing.” The streamers argue that ought to be restricted to offline promotion and no changes to their current set up of online tabs and search tools. Michael Geist’s submission is that so far no other country has required streamers to use recommendation tools (although the extensive discoverability obligations in France include “programme recommendations.”)
We should see the Minister’s final version of the regulation before the Commission begins Phase One of public hearings on the implementation of C-11 beginning November 20th.
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Over the next few months (and years) we will hear more about Online Safety and Artificial Intelligence Large Language Models (for example, ChatGPT and its competitors).
The Liberals have promised an Online Safety Bill that will make the heated debates over Bills C-11 and C-18 look mild by comparison. We have the advantage of the British moving first with their own legislation which was recently passed into law and caused quite a stir. Here’s a brief BBC explainer.
The public policy issues for AI are just beginning to be identified and promise to be as endless as the Internet. Aside from the apocalyptic fears for public safety, there are the familiar issues around copyright. That includes the rights of countless content creators whose material is scraped by AI companies for profit. Lawsuits are proliferating.
AI companies themselves will push for copyright protection for their machine-made output, a challenge for copyright laws that only concede the protection of intellectual property to human beings.
Subject to public comment, the Commission may allow Corus to reduce its spending on generally unprofitable “Programs of National Interest” from 8.5% to 5% of television revenues. The 3.5% would be spent on more profitable Canadian shows it broadcasts on its family, lifestyle and unscripted drama channels.
CEO Doug Murphy was quoted in Cartt.ca as saying a favourable CRTC ruling would “provide the much-needed flexibility in our content planning and spending for the coming years by letting us focus more on producing the best content that drives our linear and digital businesses.”
Corus has been asking for a regulatory break for some time and is pointing to its steep decline in cash-flow as the justification (allowing the Commission to deflect the inevitable “me too” demands from Bell, Rogers and Québecor).
The context to this latest development is that the CRTC has parked multiple requests from Canadian broadcasters to immediately reduce their Canadian programming obligations. Those demands are going to be taken up by the Commission in its major public proceeding over implementation of Bill C-11. In fact the Commission imposed an “administrative” extension of broadcasting licences (and Canadian programming obligations) until August 2026 to maintain the status quo during that lengthy proceeding. That has Bell marching off to the Federal Court on the grounds that the Commission cannot do so without a public hearing.
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Big Tech’s news throttle looks headed to a December end game when the Online News Act, Bill C-18, comes into force. Facebook has already choked off Canadian news and now Google has reissued its list of demands.
Facebook’s blocking of Canadian news harms both news outlets and readers alike, although it should be seen in the global perspective: Axios reports that post-2020 Facebook and Twitter referrals of reader traffic to top global news sites are sinking like a stone.
Most people following Meta are convinced that Canadian news on Facebook isn’t coming back. We are therefore left with the blame game of whether CEO Mark Zuckerberg or Prime Minister Justin Trudeau ought to be held responsible.
What’s less debatable is the fact that Facebook will no longer balance its distribution of misinformation in Canada with reliable news and therefore will devolve into a platform – if you will excuse the hackneyed phrase – for fake news.
As for Google’s threats of a news throttle, it may come down to the wire: one gets the feeling from recent developments that December will see some deadline bargaining between the Canadian heritage minister, who is responsible for the Act, and the Google C-Suite.
Minister of Sport Pascale St-Onge rises during Question Period in the House of Commons on Parliament Hill in Ottawa on Tuesday, June 14, 2022. THE CANADIAN PRESS/ Patrick Doyle
October 24, 2023
The broadcasting community is still waiting for Heritage Minister Pascale St.Onge to finalize the terms of the federal cabinet’s Policy Direction to the CRTC on implementing the Online Streaming Act, Bill C-11.
Cabinet Policy Directives, authorized by the statute, provide an opportunity for the government of the day to send veiled hints to the CRTC in the guise of broad policy statements on the action points emerging from the new legislation.
St.Onge’s predecessor in the Heritage portfolio, Pablo Rodriguez, floated his draft Policy Directionon June 10th in the Canada Gazette and we are well beyond the minimum thirty day consultation period. With 1400 public submissions on record, it’s a safe bet that St.Onge has heard from all and sundry on what the final version of the Directive ought to say. The CRTC public hearings begin November 20th, so the final Policy Direction is likely to be issued before then.
In the Parliamentary session prior to the October 2021 election, before St.Onge was elected as a rookie MP from Brome-Missisquoi in a razor-thin win over the Bloc Québécois, she appeared before the Commons Heritage Committee. As the Chair of the Fédération nationale des communications et de la culture (FNCC-CSN), she was there to comment on then-Heritage Minister Steven Guilbeault’s draft Policy Direction on Bill C-10, the first version of the Online Streaming Act that died on the order table when Justin Trudeau called a federal election in August 2021.
The yet-to-be-MP St.Onge represented journalists and media workers in Quebec. In fact her job was similar to my own at Unifor —mostly for English Canada—- and we appeared before the Heritage Committee on the same day, March 22, 2021.
Guilbeault’s draft Policy Direction (download below) had been circulated ten days earlier and St.Onge, myself and a long list of participants had gone over it in detail in case it offered clues to where the government might, or might not, go with amendments to the First Reading version of Bill C-10.
We were on the same wavelength, as her opening comments revealed:
First, the appeal of deregulation and a race to the bottom to help integrate the digital giants is an illusion. In reality, our media and audiovisual ecosystem has been able to thrive because we’ve protected it from the hegemony of Hollywood and other wealthier and more powerful foreign competitors.
If we want to continue to stand out, not only for our Canadian productions but also for our social fabric, values and diversity, we must ensure that the modernization of our legislation will continue to protect our cultural sovereignty and enable our content to shine.
Nobody on the “Canadian content” side of the debate was very happy with Guilbeault’s first effort. The draft Directive was chock full of buzzwords such as “flexible,” “incentivize,” “dynamic marketplace,” and “streamlining.” It seemed like the Minister’s semaphore to the CRTC was signalling a light regulatory touch on Canadian content. St.Onge had the same criticism, and said so.
She also pointed out a raft of major issues in C-10 that were in fact addressed by amendments a month later. The issues concerned Canadian ownership, the exclusion of YouTube’s user generated content from regulations on the visibility of French language music, and the lack of emphasis on funding for original French language programming. With the exception of the Liberals’ change of heart on YouTube content, most of the amendments dealing with those issues came from Bloc MP Martin Champoux.
St.Onge also called out as “unacceptable” the Liberals’ gutting section 3(1)(f) of the Act. That section is the legal foundation for the 40-year definition of a Canadian “program” based on a headcount of Canadian producers, directors, writers, actors and other key roles. Amendments a month later from the NDP and the Bloc partly rehabilitated 3(1)(f) and they were confirmed when Bill C-11 was passed two years after that.
Now St.Onge-as-Minister has the opportunity to fine-tune her predecessor’s Policy Direction.
Pablo Rodriguez’s Policy Direction on C-11 is not identical to Guilbeault’s previous effort on C-10. For one, the resplendent use of deregulatory vocabulary is mostly gone. For two, Rodriguez signalled to the CRTC that the headcount approach to defining a Canadian program is still public policy and that broadcasters must continue to “maximize” the employment of Canadian creative leads. That appears to apply to both Canadian and Hollywood-made “Canadian” programs and would be a long way from where the Liberals started with their first draft of Bill C-10 in November 2020.
A hot potato that St.Onge-the-Minister might dare to grab is the issue of user generated programs. That could happen in a couple of different ways.
The first would be rethinking her predecessor’s surprisingly narrow ambit for regulating user uploaded videos and music. Rodriguez did the expected in asking the CRTC to exempt YouTuber videos from regulation, but he also limited regulation to the uploads posted by licensed broadcasters and streamers. In the gap between YouTuber videos and “rebroadcasting on YouTube,” copyrighted music remains unregulated. [Update: Heritage Canada has clarified that so long as a song has been previously distributed by any regulated streamer, it will be regulated if uploaded by any user to YouTube]. The French language music industry is extremely unhappy about this since Québécois music is disproportionately under promoted and under consumed on YouTube and other music streaming platforms.
We will see what the new Minister thinks about that.
The second issue she might grapple with is “online discoverability” of Canadian programs ——not just French language music—- on all streaming platforms, not just YouTube.
In 2021, the yet-to-be-politician St.Onge made a point of telling MPs considering Bill C-10 that effective efforts at discoverability of Canadian programs meant taking on the sensitive issue of the streamers’ algorithm-driven recommendations of content:
It’s a big problem, because the bill does not include specific instructions for improving content discoverability… People often say that content will be discovered if it’s good. However, we know that things don’t work that way on the platforms, since content is displayed based on algorithms that are not transparent and over which we have no control. So, to improve content discoverability, the policy direction or the act itself would need to specify obligations on content discoverability and accountability, and currently there are none.
When the Liberals returned from the 2021 election to table Bill C-11, there was stronger language on discoverability because of the Bloc amendments to C-10. But C-11 also included a new provision that restrained the CRTC from ordering a “specific” change to a recommendation algorithm. The political fury that ensued over any regulation of algorithms was so intense that Minister Rodriguez went out of his way in his draft Policy Direction to ask the CRTC to prioritize discoverability “outcomes” over instructions and to “minimize” any possibility of ordering an underperforming streamer to tweak its algorithm.
Again, the very considerable lack of visibility and availability of French language music on YouTube and Spotify can probably only be addressed by algorithm changes.
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