Canada and the U.S. reached agreement late yesterday on a new NAFTA (now renamed the U.S.-Mexico-Canada Agreement or USMCA). While much of the focus is on the dairy industry, dispute resolution, and the auto sector, the agreement will have significant implications for intellectual property, digital policy, and broadcasting. It will take some time to examine all the provisions, but the short-hand version is that Canada has agreed to extend the term of copyright, saved the notice-and-notice system for copyright infringement claims, extended the term of protection for biologics at significant long-term cost to the health care, agreed that Internet companies are not liable for third party content, extended border measures on counterfeiting, and promised to drop the CRTC policy that permitted U.S. commercials to be aired during the Super Bowl broadcast.
Post Tagged with: "Broadcasting"
Fostering a Vibrant Canadian Programming Market: My CRTC Submission Focusing on Net Neutrality and Rejecting New Taxes, Fees or Content Blocking
Last month I posted on the responses to the CRTC’s consultation on the future of Canadian programming, which yielded over 200 submissions that envision extensive Internet regulation and taxation. The CRTC has published a reference document for the second stage of its consultation that runs until January 31, 2018. My full submission for the first stage of the consultation can be found here.
Canadian Heritage Minister Melanie Joly announced via Twitter yesterday that the government has asked the CRTC to reconsider its TV licensing decision from earlier this year that established a uniform broadcaster spending requirement of 5 percent on programs of national interest (PNI, which includes dramas, documentaries, some children’s programming, and some award shows). The decision, which would lead to a reduction of mandated spending for some broadcasters, sparked a strong lobbying campaign from various cultural groups who claimed the decision would result in hundreds of millions in reduced spending on Canadian content. While the government’s decision should not come as a surprise – siding with the creator groups against the CRTC makes political sense – no one should confuse it with good policy. Indeed, the reality is that the CRTC’s belief that the digital market would create the right incentives for investment is increasingly borne out by recent developments that suggest Canadian broadcasters have few alternatives other than to develop their own original programming.
In the fall of 2013, Ben Klass, a graduate student in telecommunications, filed a complaint with the CRTC over how Bell approach to its Mobile TV product. Klass noted that Bell was offering a $5 per month mobile TV service that allowed users to watch dozens of Bell-owned or licensed television channels for ten hours without affecting their data cap. By comparison, users accessing the same online video through a third-party service such as Netflix would be on the hook for a far more expensive data plan since all of the data usage would count against their monthly cap.
In January 2015, the CRTC released its decision in the case, siding with Klass. The Commission expressed concern that the service “may end up inhibiting the introduction and growth of other mobile TV services accessed over the Internet, which reduces innovation and consumer choice.” While Bell argued that the mobile TV service was subject to broadcast rather than telecom regulation, the CRTC ruled that mobile television services effectively invoked both broadcast and telecom regulation, since a data connection was required to access the service.
Canada’s cultural industries greeted the election of a new Liberal government with considerable excitement, hoping to the turn the page on a decade of Conservative policies that were widely viewed as prioritizing consumers over creators. The Liberal platform was silent on major regulatory changes, but it did promise to reverse cuts to the CBC and to increase allocations to the Canada Council for the Arts, Telefilm, and the National Film Board.
The cultural sector will undoubtedly welcome the infusion of millions more in taxpayer support, but the bigger fight will be over legal reforms to treat telecom and Internet companies as cultural businesses and require them to make Canadian content contributions similar to those paid by conventional broadcasters.
My weekly technology law column (homepage version) notes that the prospect of telecom and Internet provider payments has been part of a long-standing campaign from cultural groups who fear that a shrinking broadcast sector will ultimately mean smaller handouts for Canadian content creation. The campaign has thus far failed to bear much fruit: the Supreme Court of Canada ruled in 2012 that Internet providers were not subject to the Broadcasting Act and last year the Conservatives led the charge against a “Netflix tax” that would have required the popular online video service to make Canadian content contributions.