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Media experts agree that there is a need for action, but urge caution when regulating streaming

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OTTAWA – The Liberals have promised to quickly reintroduce a law to reform the Broadcasting Act, with media experts warning the government against bringing newer media platforms under an old regulatory framework.

“I think everyone agrees that this is legacy legislation that doesn’t fully reflect the environment we live in,” said Michael Geist, University of Ottawa law professor and Canadian research chair in Internet and E -Commerce Law.

The Liberal government tabled a bill called C-10 in November 2020 designed to bring global online streaming companies like Netflix and YouTube under broadcasting law. It has been heavily criticized for regulating user-generated content. The bill died in the Senate when Parliament was dissolved for the September elections.

While the risks to Canadians’ freedom of expression have received the most attention, some of their characteristics would have a significant impact on Canada’s cultural industry if the promised new legislation resembled Bill C-10.

On-demand streaming services – for streaming music, television, and movies – would be required to fund and actively promote Canadian content, including the work of marginalized and underrepresented groups through so-called discoverability requirements.

This could include requiring a streaming service to highlight Canadian content through its recommendation tools, such as personalized music playlists or curated movie selections.

The Canadian Radio-Television and Telecommunications Commission (CRTC) oversees traditional broadcasters and enforces federal policy. This new legislation would empower the CRTC to do the same for online media services, but it is vague how the regulator would perform that role. Critics have called this unrealistic and questioned how the CRTC could monitor all content posted on the internet.

Gerry Wall, president of the consulting firm Wall Communications, conducted a study on the economic effects of music streaming for the federal government in 2018 and recently completed a second study that is in preparation.

Wall and Geist both said that setting discoverability requirements for streaming services is not easy for several reasons.

Geist said the notion of discoverability in Canada came at a time when traditional broadcasters were prioritizing content from the United States over Canadian content because it was more profitable. Today, on-demand streaming services operate on a different business model and have an incentive to tailor their catalog to subscriber preferences.

Using Netflix as an example, Geist said, “If people are interested in Canadian content … it is clearly in Netflix’s interest to make this Canadian content available to them in order to keep them subscribers.”

He added that Canadian content isn’t hard to find as anyone can type “Canada” into the streaming platform’s search bar and find a range of Canadian materials.

Geist and Wall both said the discoverability of streaming services is sparking a sensitive debate over how Canadian content is defined today. “I think that’s a fundamental problem that needs to be addressed,” said Wall.

The Broadcasting Act lays down criteria to define what constitutes a cultural work Canadian. For music, the so-called MAPL system determines whether a musical work is Canadian if it meets enough conditions, e.g. B. whether a song is performed by a Canadian or whether the piece was recorded in Canada.

Geist referred to this as a “tick box exercise” that may not be able to fully capture the complexities of a television production that was mostly Canadians, but which did not meet the criteria because a donor was not Canadian.

“I think any honest assessment of what certified Canadian content means is that having a cop show on Toronto to look like New York is just as likely as something people would consider to be real Canadian,” said Ghost.

The way listeners access music through on-demand streaming is different from the one-to-many distribution method of radio, which had a single linear programming schedule, Wall said. With a streaming service, the music catalog is accessed by users on demand and at the same time.

“You could break the 24-hour day and say, ‘That’s how much time you have to spend providing Canadian content for it.’ But how would that work in the streaming world? ”He said.

Music streaming services can send music to a user through personalized and curated playlists, a process largely controlled by a platform’s proprietary algorithms. Making Canadian artists more discoverable by giving the CRTC access to the algorithms of a streaming service is a “very poorly thought out idea,” Wall said.

Andrew Forsyth is a consultant to MRC Data, formerly Nielsen Canada, a marketing data and audience insights company. He said the government needs to figure out how to properly regulate this newer media environment – a difficult task.

Wall and Geist agree that while the Broadcasting Act needs to be updated, the tension is how this will be achieved.

Wall said he didn’t think it was a good idea to embed new services and technology in a framework designed for older communication tools that are fundamentally different.

This opinion was confirmed by Peter Menzies, Senior Fellow at the Macdonald-Laurier Institute and former Vice Chairman of the CRTC.

“The idea behind the broadcast industry is that the government gives people a license to use a Crown asset,” he said. “That belongs to the crown; it can lay down the rules for its use. The Krone doesn’t own the Internet, but it pretends to have it. “

In the world of radio, the CRTC has been able to force broadcasters to subsidize Canadian content by collecting prescribed amounts and transferring them to funding and granting agencies such as the Foundation to Assist Canadian Talent on Records (FACTOR) and the Canadian Music Fund.

“Everything depended on a licensing system,” said Wall. “Well, are you going to license Spotify? How are you going to do that? “

If the goal is to ensure that streaming companies contribute to these subsidies, then Menzies says it can be done in other ways “without pretending the internet is broadcasting.”

Both Menzies and Forsyth said that leveling the playing field between on-demand streaming services and traditional broadcasters could be better achieved by imposing a tax on streaming services.

“You don’t have to regulate the internet. Put together the companies you want to get money from, ”Menzies said.

Forsyth said the entire Canadian music industry existed because broadcasting law allowed it to thrive. “I think the problem is that the beast was built,” he said, referring to the act and all of the business it generated. The bill’s revision will, in turn, affect the country’s funding, support and exposure system for Canadian companies, he said.

“The user-generated content piece has to be the starting point,” said Geist, because it is basically about regulating the language of Canadians.

He added that the legislation in its previous form was too vague, leaving too many details for the CRTC to decide.

Wall said he believes the Heritage Committee’s list of witnesses should be opened up so digital-first creators can cast their voices in the discussion. “I don’t think they ever contributed to this act and they are the future,” he said.

Menzies said, “The hope is that you take a deep breath, take a long look at things, and figure out what you really want to get out of things and how best to get there? Because it was definitely not Bill C-10. “

This report by The Canadian Press was first published on November 27, 2021.

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This story was produced with financial support from Facebook and the Canadian Press News Fellowship.

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