The Liberals have vowed to quickly reintroduce legislation to reform the Broadcasting Act, which warns media experts against subjecting new media platforms to an old regulatory framework.
âI think everyone agrees that this is an older law that does not fully reflect the environment in which we live,â said Michael Geist, professor of law at the University of Ottawa and holder of the Canada Research Chair in Internet and Electronic Commerce Law.
The Liberal government introduced a bill, known as C-10, in November 2020 that would subject global online streaming companies, such as Netflix and YouTube, to the Broadcasting Act. It has come under heavy criticism as to whether it will regulate user-generated content. The bill died in the Senate when Parliament was dissolved for the September election.
While its risks to the freedom of expression of Canadians are receiving the most attention, if the promised new law resembles Bill C-10, then several of its features would have a significant effect on Canada’s cultural industries.
On-demand streaming services – for music, television, and movie streaming – would be required to fund and actively promote Canadian content, including the work of marginalized and under-represented groups, through what are called discoverability requirements.
This could include requiring a streaming service to showcase Canadian content through its recommendation tools, such as personalized music playlists or curated movie selections.
The Canadian Radio-television and Telecommunications Commission (CRTC) oversees traditional broadcasters and enforces federal policies. This new law would empower the CRTC to do the same for online media services, but is vague as to how the regulator would perform this function. Critics called this an unrealistic overshoot, wondering how the CRTC could monitor all content posted on the Internet.
Gerry Wall, president of consulting firm Wall Communications, completed a study on the economic effects of music streaming for the federal government in 2018, and recently completed a second study which is forthcoming.
Wall and Geist both said that setting discoverability requirements on streaming services was not easy for several reasons.
Geist said the notion of discoverability in Canada emerged at a time when traditional broadcasters prioritized US content over Canadian content because it was more profitable. Today, on-demand streaming services operate under a different business model and are encouraged to tailor their catalog to the preferences of the subscriber.
Media experts agree action is needed, but urge caution on how #streaming is regulated. #CDNPoli
Using Netflix as an example, Geist said, “If people are interested in Canadian contentâ¦ it’s clearly in Netflix’s best interest to provide them with that Canadian content to keep them subscribed.”
He added that Canadian content is not hard to find as anyone can type “Canada” into the streaming platform’s search bar and will find a suite of Canadian documents.
Both Geist and Wall have said that the possibility of discovering streaming services triggers a thorny debate over the current definition of Canadian content. âThis is a fundamental problem, I think, that needs to be resolved,â Wall said.
The Broadcasting Act establishes criteria for defining what makes a cultural work Canadian. For music, the so-called MAPL system determines whether a musical work is Canadian if it meets sufficient conditions, such as if a song is performed by a Canadian or if the work has been recorded in Canada.
Geist called this a “checkbox exercise” which may not be equipped to fully capture the complexity of a television production involving primarily Canadians, but not meeting the criteria because a funder was not. not Canadian.
âI think any sort of honest assessment of what certified Canadian content means is that it’s just as likely to offer a crime show where Toronto is designed to look like New York, as it is to offer something that people would consider. as genuinely Canadian, âGeist said.
The way listeners access music through on-demand streaming is different from radio’s one-to-many distribution method, where there was a single linear program of programming, Wall said. On a streaming service, the music catalog is accessible by users on demand and simultaneously.
âYou could break the 24-hour day and say, ‘This a lot of your time has to be spent providing Canadian content on this.’ But how would that work in the streaming world? âHe said.
Music streaming services can deliver music to a user through personalized and curated playlists, a process driven largely by platform proprietary algorithms. Making Canadian artists easier to find by giving the CRTC access to a streaming service’s algorithms is a “very ill-conceived notion,” Wall said.
Andrew Forsyth is a consultant for MRC Data, formerly Nielsen Canada, a marketing data and audience analysis company. He said the government must figure out how it can properly regulate this new media environment – a difficult task.
Wall and Geist both agree that while the Broadcasting Act needs updating, the tension lies in how it is accomplished.
Wall said he didn’t think it was a good idea to try to fit new services and technologies into a framework designed for older means of communication that are fundamentally different.
This sentiment was shared by Peter Menzies, senior researcher at the Macdonald-Laurier Institute and former vice-chair of the CRTC.
âThe idea behind the broadcasting industry is that the government allows people to use Crown property,â he said. âIt’s something the Crown has; it can establish the rules for its use. The Crown does not own the Internet, but it claims it is. “
In the radio world, the CRTC has been able to get stations to help subsidize Canadian content by raising prescribed amounts and transferring them to funding and granting organizations like the Foundation to Help Canadian Talent on Record (FACTOR ) and the Canadian Music Fund.
âIt all depended on a licensing system,â Wall said. âWell, are you going to license Spotify? How are you going to do this? “
If the goal is to ensure that streaming companies contribute to these subsidies, Menzies said it could be done in other ways “without claiming that the internet is broadcasting.”
Menzies and Forsyth both said that creating a level playing field between on-demand streaming services and traditional broadcasters can be best done by imposing a tax on streaming services.
âYou don’t have to regulate the Internet. Mark off the companies you want to get money from,â Menzies said.
Forsyth said the entire Canadian music industry exists because the Broadcasting Act allowed it to thrive. âI think the problem is the beast was built,â he said, referring to the act and all of the business generated by it. The revised law will in turn affect the country’s funding, support and exposure system for Canadian entities, he said.
âFor starters, user-generated content needs to get out there,â Geist said, because it fundamentally involves regulating the speech of Canadians.
He added that the legislation in its previous form was too vague and left too many details for the CRTC to decide.
Wall said he believes the heritage committee’s witness list should be opened up so digitally-focused creators can make their voices heard in the discussion. âI don’t think they ever contributed to this act, and they are the future,â he said.
Menzies said, âThe hope is that they take a deep breath, take a long, hard look at things, and understand what you really want to take out of things and what’s the best way to get there? Because Bill C-10 was definitely not that. “
This report by The Canadian Press was first published on November 27, 2021.
This story was produced with the financial assistance of Facebook and the Canadian Press News Fellowship.