Discover by Sascha Kohlmann https://flic.kr/p/et5hca (CC BY-SA 2.0)

Discover by Sascha Kohlmann https://flic.kr/p/et5hca (CC BY-SA 2.0)

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The Broadcasting Act Blunder, Day 8: The Unnecessary Discoverability Requirements

Canadian Heritage Minister Steven Guilbeault has cited the need to improve the “discoverability” of Canadian content as a critical reason to support Bill C-10, his Broadcasting Act reform bill. Speaking of his daughter’s use of digital services, Guilbeault told the House of Commons that the bill “will allow her not only to take advantage of an international offering, but also to discover Canadian content.” While few would oppose ensuring that Canadian content is easy to find and well marketed, the Broadcasting Act blunder series continues today with a look at the evidence on the issue of discoverability, finding there is little to support claims that regulatory intervention for streaming services is needed.

Bill C-10 includes a new discoverability requirement, providing at Section 9.1(1):

The Commission may, in furtherance of its objects, make orders imposing conditions on the carrying on of broadcasting undertakings that the Commission considers appropriate for the implementation of the broadcasting policy set out in subsection 3(1), including conditions respecting

(b) the presentation of programs for selection by the public, including the discoverability of Canadian programs;

The term “discoverability” does not appear elsewhere in the bill and is not defined. It will therefore fall to the CRTC to decide what it means and what conditions are imposed on Internet services as a result. Based on the Canadian cultural debate of the past few years, it can be expected that the CRTC will be urged to require services such as Netflix or Disney+ to override their algorithms that identify what subscribers are likely to want to see by actively promoting Canadian content regardless of their preferred content.

The Broadcasting and Telecommunications Legislative Review panel, which recommended discoverability regulation. went looking for evidence of a discoverability problem and found very little. That report identified just two reports: a 2017 Price Waterhouse Cooper report called How Tech Will Transform Content Discovery and a 2016 report from Telefilm Canada titled Discoverability: Toward a Common Frame of Reference Part 2: The Audience Journey (the Telefilm Canada report is incorrectly cited as a 2018 report but actually dates to 2016).

The Price Waterhouse Coopers report involved a survey of 1,000 U.S. residents, had nothing to do with Canada, and said absolutely nothing about the ability to find or recognize Canadian content. The Telefilm Canada report was focused on Canada but did not find that Canadians have trouble finding Canadian content. Rather, it found a range of experiences and emphasized that “word-of-mouth is Canadians’ main discoverability method.” Two reports – one from the U.S. and the other four years old – does not make the case for new regulations requiring the CRTC to regulate the way online services make their content available to subscribers in Canada.

In fact, it is not hard to discover Canadian content on Netflix. Last year, I wrote specifically about this issue, creating a fresh Netflix account to see whether I could find Canadian programming and if the Netflix algorithm would adjust to my interests. The reality is that “discovering” Canadian content on Netflix only requires typing Canada into the search box. That immediately generates a Canadian Movies and TV section that features many shows and movies. Typing “Canadian” generates tabs for Canadian TV Shows, Canadian Movies, and Critically-acclaimed Canadian Movies, Canadian TV Comedies, and much more.

The government wants the CRTC to require Netflix and other services to place Canadian programs on the digital front page, but this is precisely what happens when users demonstrate an interest in Canadian programs as the algorithm recognizes the preference and suggests similar kinds of content. It wasn’t regulation that pushed Netflix to promote Canadian programs such as Schitt’s Creek or Workin’ Moms to a global audience. It was subscriber demand and it raises the question of why new regulations are needed.

Further, it is worth considering why discoverability has been such a focal point for the Canadian creative sector when much of the evidence suggests that users need do little more than put the term Canada in a search box. Canadian film and television production has long been a product of regulatory requirements with broadcasters required to air a certain percentage of Canadian content as a condition of licence. With a few notable exceptions, Canadian content has played second fiddle to more popular U.S. programming, which has meant that broadcasters are more likely to air the Canadian programs at less popular times. Moreover, given the reliance on simultaneous substitution, changes in U.S. programming times has had a spillover effect on Canada, with Canadian broadcasters forced to change their schedules in response to U.S. changes. That has meant that Canadian programs often lack a consistent time in the programming schedule.

Years of this experience may leave some fearing that their programs won’t be found unless efforts are made to make them more discoverable. Yet the reality of streaming services is that they have no reason to make it hard to discover programs that their subscribers want to watch. Indeed, in a very competitive market in which subscribers can cancel at any time, the opposite is true. For companies such as Netflix, they must ensure that subscribers find the content they want to watch or they risk losing them as customers.

For years, the Canadian cultural sector has claimed that Canadians want access to Canadian programming. If that is true, that provides Netflix and its competitors with all the incentive they need to ensure that they offer Canadian programming and that it is easy to find. With no long term commitment and plenty of competition, subscribers will leave if they do not find programming that appeals to them. If the culture sector is right, Netflix success in Canada is directly linked to offering Canadian programming and ensuring that their subscribers are able to find it. In this scenario, it is not regulation that drives access to Canadian content but rather subscriber demand. But in Bill C-10, neither the evidence nor the realities of the market seem to matter very much. Instead, the government is determined to force Netflix to prominently display Canadian content without regard for whether their subscribers want to see it.

(prior posts in the Broadcasting Act Blunder series include Day 1: Why there is no Canadian Content Crisis, Day 2: What the Government Doesn’t Say About Creating a “Level Playing Field”, Day 3: Minister Guilbeault Says Bill C-10 Contains Economic Thresholds That Limit Internet Regulation. It Doesn’t, Day 4: Why Many News Sites are Captured by Bill C-10), Day 5: Narrow Exclusion of User Generated Content Services, Day 6: The Beginning of the End of Canadian Broadcast Ownership and Control Requirements, Day 7: Beware Bill C-10’s Unintended Consequences)

2 Comments

  1. Pingback: ● NEWS ● #MichaelGeist #canada ☞ The Broadcasting Act Blunder, Day … | Dr. Roy Schestowitz (罗伊)

  2. Pingback: News of the Week; December 2, 2020 – Communications Law at Allard Hall

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