Last December, I appeared before the CRTC as part of Bill C-11 hearings, where I emphasized the need for the Commission to pay attention to competition, consumer choice, and affordability. My takeaway from that appearance was that “my intervention met with skepticism from some Commissioners who see their role as guardians of the broadcasting system on behalf of longstanding beneficiaries with little regard for the impact on consumers or the risks to competition.” It turns out that was a pretty good read of the situation as this week’s Bill C-11 streaming ruling acts as if consumers, competition, and affordability are irrelevant issues that are at best someone else’s concern. The result is that Canadians has been largely removed from broadcasting and Internet policy at the regulator, expected to pay up and shut up.
News
CRTC Bill C-11 Ruling “Makes Web Giants Pay” But it is Canadian Consumers That Will Get the Bill
The CRTC has released its much-anticipated Bill C-11 ruling on the initial mandated contributions from Internet streaming services. The headline the Commission and government will promote is that the services will be required to contribute 5% of their Canadian revenues to support various Canadian funding programs that support film and TV production, news, and music. The decision is a perfect illustration of a sector that is too often focused on regulatory payments rather than market-based success with incredible micromanagement of funding in which the CRTC is turned into a policy funding machine of the government (no surprise that government officials spent last week calling stakeholders for advance supportive comments). For the moment, the actual contributions from Internet streaming services are ignored, an updated definition of Canadian content doesn’t exist, commercial success is irrelevant, and subsidies for the news operations of companies such as Bell and Rogers are encouraged. To top it off, the streaming services are required to pay but are unable to access the funds even as they invest in production in Canada. Bill C-11 was about “making web giants pay” and that is what the CRTC was determined to do even if it is consumers that will ultimately get the bill.
Huge Win for Copyright User Rights in Canada: Federal Court Rules Digital Lock Rules Do Not Trump Fair Dealing
The Federal Court has issued a landmark decision (Blacklock’s Reports v. Attorney General of Canada) on copyright’s anti-circumvention rules which concludes that digital locks should not trump fair dealing. Rather, the two must co-exist in harmony, leading to an interpretation that users can still rely on fair dealing even in cases involving those digital locks. The decision could have enormous implications for libraries, education, and users more broadly as it seeks to restore the copyright balance in the digital world. The decision also importantly concludes that merely requiring a password does not meet the standard needed to qualify for copyright rules involving technological protection measures. If this all sounds technical, this post provides the necessary background and then reviews the decision.
This is Who We Are Now
There was another shooting at a Jewish school in Montreal yesterday, which led to what has become the Canadian version of “thoughts and prayers”, namely a politician lamenting that “this isn’t who we are.” But months of escalating antisemitism make it clear that this is exactly who we are. Just this week, there were shootings at two Jewish schools in Canada, testimony at an Ottawa school board hearing on appalling antisemitism, a mother pulled her child out of a Burlington school due to antisemitism, a lawsuit was filed against OCAD, an Ontario university, for failing to provide Jewish students with a safe environment, and four university presidents told a Commons committee that antisemitism is a problem on campus and that the messaging coming out of the encampments are antisemitic. And it’s only Thursday.
Curb Your Enthusiasm: Why Bill S-210 Could Mandate CRTC-Backed Age Verification For Streaming Services Like Netflix, Crave and CBC Gem
There are many reasons to be concerned about Bill S-210, the mandated age verification bill that raises significant privacy and freedom of expression risks and which is being improbably backed by Conservative MPs. The bill would mandate age verification technologies that the Privacy Commissioner of Canada says creates concern given missing safeguards, it establishes website blocking that government officials warn could undermine net neutrality and an open Internet, and its broad scope goes beyond pornography websites to include search and social media. But beyond those concerns, government officials have now zeroed in another problem: the definition of “sexually explicit material” used in the bill effectively captures streaming services such as Netflix, Crave, Prime, and CBC Gem. As a result, watching a show such as Game of Thrones or some episodes of Curb Your Enthusiasm on a cable or satellite package comes only with a rating and warning, whereas streaming it via Crave would involve a mandated age verification process.
Recent Posts
The Law Bytes Podcast, Episode 210: Meredith Lilly on the Trade Risks Behind Canada’s Digital Services Tax and Mandated Streaming Payments 
Abandoning Institutional Neutrality: Why the University of Windsor Encampment Agreements Constrain Academic Freedom and Freedom of Expression 
The Law Bytes Podcast, Episode 209: Peter Menzies on Why the Canadian News Sector is Broken and How to Fix It 
Why the University of Windsor Encampment Agreement Violates Antisemitism and Academic Freedom Standards 
Know When to Fold Em: The Big Risk Behind Canada’s Digital Services Tax Bet
