When Canada’s broadcast regulator embarked on the third and final phase of its consultations on the future of television regulation earlier this year, it left little doubt that a total overhaul was on the table. The Canadian Radio-television and Telecommunications Commission (CRTC) raised the possibility of eliminating longstanding pillars of broadcast regulation by creating mandatory channel choice for consumers, dropping simultaneous substitution and genre protection, as well as allowing virtually any non-Canadian service into the market.
For the growing number of Canadians hooked on Netflix or accustomed to watching their favourite programs whenever they want from the device of their choosing, none of this seems particularly revolutionary. Indeed, policies that reduce options, increase costs, or add regulation run counter to a marketplace in which public choice determines winners and losers.
My weekly technology law column (Toronto Star version, homepage version) notes the CRTC seems to understand that this is a make-or-break moment since policies that worked in a world of scarcity no longer make sense in a marketplace of abundance. Yet the first batch of responses from Canada’s broadcasters, broadcast distributors, and creator community suggests that most see the changing environment as a dire threat to their existence and hope to use regulation to delay future change.
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The Canadian Association of Broadcasters has applied to the Copyright Board of Canada for a radical overhaul of the current fees paid by radio stations for commercial radio reproduction of music. The CAB argues that in light of copyright reforms in Bill C-11 and the Supreme Court of Canada’s rulings on fair dealing, there is no legal basis for several tariffs proposed by CMRRA-SODRAC (CSI), AVLA, and ACTRA and that the rate on earlier approved tariffs should be significantly reduced.
The CAB position on the impact of the law is that:
The result of the changes to the Copyright Act made by the Copyright Modernization Act, when combined with the fair dealing right as applied in ESA, is to eliminate or significantly reduce the liability of radio broadcasters for the reproductions made by them in the course of their broadcasting activities. Even the reproduction collectives agree that the legislative changes alone will eliminate most liability of radio broadcasters for reproductions of music.
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Earlier this month, Bell and Quebecor, two giants in the Canadian broadcasting and telecom landscape, became embroiled in a dispute over Sun News Network, the recently launched all-news network. At first glance, the dispute appeared to be little more than a typical commercial fight over how much Bell should pay to Quebecor to carry the Sun News Network on its satellite television package. When the parties were unable to reach agreement, Bell removed Sun News Network, leaving a placeholder message indicating “the channel has been taken down at the request of the owners of Sun News Network.”
While the dispute is now before the Canadian Radio-television and Telecommunications Commission – Quebecor claims Bell is violating the legal requirement against “undue preferences”- more interesting is Bell’s claim about the value of Sun News Network signal.
According to Mirko Bibic, senior vice-president of regulatory affairs at Bell Canada, the market value of Sun News Network is zero because Quebecor makes the signal available free over-the-air in Toronto and is currently streaming it free on the Internet. Given the free access, Bell maintains that the signal no longer has a market value.
My weekly technology law column (Toronto Star version, homepage version) notes Bibic’s comment may be posturing for negotiation purposes, but it highlights the larger problem for Canadian broadcasters and broadcast distributors such as cable and satellite providers.
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Appeared in the Toronto Star on May 21, 2011 as Can Canadian Broadcasters Compete With Free? Earlier this month, Bell and Quebecor, two giants in the Canadian broadcasting and telecom landscape, became embroiled in a dispute over Sun News Network, the recently launched all-news network. At first glance, the dispute […]
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Last year, Canadian broadcasters launched a major public campaign to “Save Local TV”, which was their effort to rally support for new fees for retransmission of local television signals. The Federal Court of Appeal ruled this week that the CRTC has the legal power to authorize networks to negotiate to […]
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