The government released its long-promised draft policy direction on Bill C-11 to the CRTC yesterday. The policy direction is open for public comment until July 25, 2023, after which the government will release a final version that gives the CRTC guidance on its expectations for how the bill will be interpreted. While Canadian Heritage was at pains to emphasize that the draft direction includes instructions that the “CRTC is directed not to impose regulatory requirements on online undertakings in respect of programs of social media creators, including podcasts”, the draft directive confirms that the government misled the public for months on the scope of Bill C-11 and highlights the problem with the CRTC’s rushed effort to establish regulations before the draft policy directive is final. I plan to file a submission by the deadline, but in the meantime offer several thoughts.
Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP
The Draft Bill C-11 Policy Direction: Canadian Heritage Implicitly Admits What It Spent Months Denying
The Law Bytes Podcast, Episode 169: Alissa Centivany and Anthony Rosborough on Repairing Canada’s Right to Repair
The right to repair would seem like a political no-brainer: a policy designed to extend the life of devices and equipment and the ability to innovate for the benefit of consumers and the environment. Yet somehow copyright law has emerged as a barrier on that right, limiting access to repair guides and restricting the ability for everyone from farmers to video gamers to tinker with their systems. The government has pledged to address the issue and Bill C-244, a private members bill making its way through the House of Commons, would appear to be the way it plans to live up to that promise.
Alissa Centivany, an assistant professor in the faculty of information and media studies at Western University and the principal investigator of a SSHRC-funded research project on the right to repair and Anthony Rosborough, who completing his doctoral thesis at the European University Institute in Florence and is set to take up a joint appointment in Law and Computer Science at Dalhousie University later this year, have been two of the most outspoken experts on this issue in Canada. They join me on the Law Bytes podcast to talk about why the time has come for government action, their experience before a House of Commons committee on the bill, and unpack some of the confusion arising from late breaking amendments.
The CRTC’s Bill C-11 consultations are off to a rocky start with mounting concern over short deadlines that may limit public participation and reduce the quality of the submissions. A dozen groups have asked the Commission to extend the deadlines with more groups joining in the call. The deadline for comment on the extension ended yesterday and I navigated an exceptionally difficult consultation process (more on that shortly) to submit the comments posted below. I support the extension but argue that a better approach would be to wait until the government’s policy direction process is final and there is certainty on support for public interest group participation.
The CRTC last week released the first three of at least nine planned consultations on the implementation of Bill C-11 (I was out of the country teaching an intensive course so playing catch-up right now). The consultations focus on the broad structure of the regulatory framework, registration requirements, and transitions from the current system of exemptions to one of regulations. The timeline to participate in this consultation is extremely tight with comments due as early as June 12th for two of the consultations and June 27th for the larger regulatory framework one. As the title of this post suggests, the CRTC is adopting an approach of shoot first, aim later. The consultations suggest that there is little interest in hearing from anyone outside of the legacy groups that have long dominated CRTC hearings. Indeed, by moving forward with incredibly tight timelines, without the government’s promised policy directive, and without support for newer groups to back their participation, the documents leave the distinct impression that the Commission had surrendered its independence and already made up its mind on how to implement Bill C-11.
The debate over Bill C-11 was frequently marked by politician and lobby group claims that failure to act would place the future of Canadian film and television production at risk. While internal government documents admitted that claims regarding the contributions from Internet streaming services understated the actual contributions by failing to account for “unofficial Cancon”, Canadian Heritage Minister Pablo Rodriguez was happy to feed the narrative that the bill was a critical support for an industry in jeopardy.
Profile 2022, the well-regarded annual report on the state of industry funding was released yesterday. It conclusively demonstrates that the claims on the state of Cancon production are wildly exaggerated. Indeed, the data speaks for itself: record production, record Cancon production, record French-language production. Over the past decade – as streaming services has grown in popularity, Canadian film and television production has more than doubled. The following three charts and graphics taken from the Profile 2022 report tell the story. There is no Cancon emergency and no risk to film and TV production in Canada. The Bill C-11 panic over the viability of the sector was little more than a fraudulent lobbyist-inspired talking point with little basis in reality.