Michael Geist on the pros and cons of Netflix regulation

Liberals have vowed to swiftly reintroduce legislation aimed at reforming the Broadcasting Law, which has media experts warning the government against bringing in new media platforms under an old regulatory framework.

“I think everyone agrees that it is older legislation that does not fully reflect the environment we live in,” said Michael Geist, University of Ottawa law professor and Canadian president of research in Internet and commerce law. electronic.

The liberal government introduced a bill, known as C-10, in November 2020 that would bring global online streaming companies, such as Netflix and YouTube, under the Broadcasting Act. It was the subject of intense criticism about whether it would regulate user-generated content. The bill died in the Senate when Parliament was dissolved for the September elections.

While its risks to Canadians’ free speech received the most attention, if the promised new legislation resembles Bill C-10, several of its features would have a significant effect on Canada’s cultural industries.

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 what are called discovery requirements.

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

The Canadian Radio, Television and Telecommunications Commission (CRTC) oversees traditional broadcasters and enforces federal policies. This new legislation would empower the CRTC to do the same for online media services, but it is vague when it comes to how the regulatory body would perform that role. Critics have called this an unrealistic overreach, questioning how the CRTC could monitor all content posted on the Internet.

Gerry Wall, president of consultancy Wall Communications, produced a study on the economic effects of music streaming for the federal government in 2018, and recently completed a second study to be published soon.

Wall and Geist said that setting visibility requirements on streaming services is not easy for a number of reasons.

Geist said the notion of discovery in Canada arose at a time when traditional broadcasters would prioritize content from the United States over Canadian content because it was more profitable. Today, on-demand streaming services operate under a different business model and are incentivized to cater their catalog to subscriber preferences.

Media experts agree that action is needed, but urge caution on how #streaming is regulated. #CDNPoli

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

He added that Canadian content is not difficult to find, as anyone can type “Canada” in the search bar of the streaming platform and they will find a set of Canadian materials.

Both Geist and Wall said that bringing discoverability to streaming services raises a thorny debate about how Canadian content is defined today. “That’s a fundamental problem, I think, that needs to be addressed,” Wall said.

The Broadcasting Act establishes criteria to define what makes a cultural work Canadian. For music, what is known as the MAPL system determines whether a musical work is Canadian if it meets the sufficient conditions, such as if a song is performed by a Canadian or if the piece was recorded in Canada.

Geist referred to this as a “box exercise” that may not be equipped to fully capture the complexity of a television production that primarily involves Canadians but does not meet the criteria because a funder was not Canadian.

“I think any kind of honest assessment of what certified Canadian content means is that you’re just as likely to come up with a police program where Toronto is designed to look like New York, as you come up with something that people would consider. as genuinely Canadian, ”Geist said.

The way listeners access music through on-demand streaming is different from radio’s one-to-many distribution method, where there was a single linear schedule of programming, Wall said. In a streaming service, users access the music catalog on demand and simultaneously.

“You can break the day down to 24 hours and say, ‘You have to spend a lot of your time providing Canadian content on that.’ But how would that work in the streaming world? ” he said.

Music streaming services can deliver music to a user via curated and personalized playlists, a process that is largely driven by a platform’s proprietary algorithms. Making Canadian artists more visible by granting the CRTC access to a streaming service’s algorithms is a “very ill-conceived notion,” Wall said.

Andrew Forsyth is a consultant for MRC Data, formerly Nielsen Canada, a marketing data and audience information firm. He said the government must figure out how it can properly regulate this new media environment – a difficult task.

Wall and Geist agree that while the Broadcasting Act needs an update, the tension lies in how it is accomplished.

Wall said he doesn’t think it’s a good idea to try to incorporate new services and technologies into a framework designed for older media that are fundamentally different.

Peter Menzies, a senior fellow at the Macdonald-Laurier Institute and a former vice president of the CRTC, echoed that sentiment.

“The idea behind the broadcasting industry is that the government is licensing people to use a Crown asset,” he said. “That is something that the Crown owns; it can set the rules for its use. The Crown does not own the Internet, but it pretends it does.”

In the world of radio, the CRTC was able to compel stations to help subsidize Canadian content by collecting prescribed amounts and transferring them to funding and granting bodies such as the Foundation to Assist Canadian Talent on Records (FACTOR) and the Canadian Music Fund.

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

If the goal is to ensure that broadcasting companies contribute to these subsidies, Menzies said this can be done by other means “without pretending that the Internet is broadcasting.”

Both Menzies and Forsyth said that creating a level playing field between streaming services on demand and traditional broadcasters can best be achieved by imposing a tax on streaming services.

“You don’t need to regulate the Internet. Separate the companies you want to get money from,” Menzies said.

Forsyth said the entire Canadian music industry exists because the Broadcasting Act allowed it to flourish. “I think the problem is that the beast has been built,” he said, referring to the act and all the business it generates. The revision of the law will in turn affect the country’s financing, support and exposure system for Canadian entities, he said.

“As a starting point, user-generated content has to come out,” Geist said, because it fundamentally involves regulating the speech of Canadians.

He added that the legislation in its previous form was too vague and left too much detail for the CRTC to decide.

Wall said he believes the Heritage committee’s witness list should be opened so digital creators can have their voices included in the discussion. “I don’t think they had any participation in this event, and they are the future,” he said.

Menzies said, “The hope is that you take a deep breath, take a good look at things, and find out what you really want to get out of things and what is the best way to get there.”

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

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


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