Monday, September 19, 2016

Cultural protectionism doesn't protect Canadian culture #DigiCanCon #BecauseIts2016

Since the 1950's there have been some Canadians who believe that in order to protect the culture of Canada we need to restrict Canadian's access to culture from outside of Canada.  Concepts such as CanCon has existed in positive forms such as government funding for Canadian creators, but has also existed in negative form such as restrictions on what Canadians can access of non-Canadian creativity.

While the restrictions may have made sense in the 1950's in a pre-Internet era, the restrictions simply don't make sense any more.  Like a number of other modernizations we have seen recently, the reasons why we should eradicate these restrictions comes down to that simple slogan: because it's 2016.

CanCon


We need to modernize how we think about CanCon, and who the target of regulations should be.

In a broadcast era we had the problem that there were intermediaries that programmed what people could see and when.  As it was not Canadians themselves that are making these choices, requiring that broadcasters not only offer Canadian creativity to Canadians as well as helping to fund it was and remains appropriate.  As broadcasting was limited in spectrum we were talking about substituting one thing for another, and the promotion of Canadian content required the demotion of non-Canadian content.  I continue to support a CanCon quota system for broadcasting, which like broadcasting itself is a legacy policy for a legacy content delivery platform.

With modern streaming services that limited bandwidth restriction doesn't exist.  A full catalogue of content can exist, domestic and foreign for every market, and it would then be citizens choosing to watch what they want.  In this scenario a quota system would be counter-productive, unless the distributor themselves became a barrier to access by not being willing to license and offer Canadian content to Canadian clients.

That does not suggest a free-for-all, just an appropriate directing of the regulation at the correct entity.  If a streaming service available to Canadians wishes to offer a full catalogue of Canadian content, but some third party is blocking licensing, then that third party should be the target of regulation.   If that means intervening in exclusive licenses in order to ensure that Canadian content is available to Canadians on the platforms and devices of their choosing, and at the same time as other Canadians, then that is an appropriate modernization of CanCon rules.

While the quota system of CanCon regulations was perceived of as a broadcast issue, broadcasting is increasingly a technology of the past.  We need to look towards other gatekeepers who restrict Canadian's access to Canadian creativity.   We need to recognize this applies far more to the limited shelves of companies like Walmart than it does Netflix.

Regional restrictions

For better or for worse, Canada is a free trade country.  That is, except when there is an often arbitrary and inconsistent exception. Access to creativity is one of those odd areas where there are inconsistencies as we are in a period of transition.

Region encoding is an example.

DVD's have a region code encoded in them, the theory being that a DVD released in one region of the world can only be played in that same region of the world.   Due to free trade rules this never worked, as it was always legal for Canadians to import both a DVD player from another region and DVDs released in that other region.  In fact, I have a DVD ROM drive set to region code 2 to allow me to access any European disks I have been interested in.

In 2001 I filed a complaint with the competition bureau about DVD CSS which was a system which allowed what I continue to believe is a cartel known as the DVD CCA which exists to tie the selling of DVD encoded content with "authorized" devices where that cartel can impose what features can exist on those devices.   In a phone call from the bureau I was told they did a "relevant market" analysis and found that there was no price issues with DVD players. He suggested that licensed DVD players would need to be expensive for there to be a competition issue. He also suggested that since most movies are released in DVD Region 1 (North America), that there was also no barrier to trade.

I continue to disagree with the department's evaluation and believe that region encoding and the tied selling between DVD players and DVD disks should be disallowed under competition law.  This encoding can't be used in countries like India where DVD players are purchased (often by relatives) from all over the world, and thus a DVD with any region restriction is likely to not work for a good percentage of the country.


Moving forward to 2015 and while the content delivery platforms have modernized, the government policies have not.  I say 2015 as that was when I heard that Department of Canadian Heritage officials wanted to target the use of virtual private networks (VPN) to bypass regional restrictions.

The delivery technology isn't DVDs, but streaming services like Netflix.  And unlike with DVDs we aren't in the same region as the United States, and a large percentage of Canadians are using technology to "cross boarder shop" to access content that is legally available in the United States but has some (many believe illegitimate) contractual restriction against accessing from Canada.

This is not copyright infringement any more than buying a DVD from a US rather than Canadian retailer isn't copyright infringement.  This is something I do every so often, buying DVD's from Amazon.com rather than Amazon.ca as the "Canadianized" versions of some titles have French content replacing specific DVD extras I'm interested in.   Since cross-boarder shopping is the norm with DVDs, there isn't content which is available in the USA where the rights-holder and/or distributor haven't bothered to also make available to Canadians.


If we are to take what the Competition Bureau said at face value, they would be appropriately regulating against these restrictions in streaming services.  Thus far they have remained silent.  The department of Canadian Heritage is pointing the opposite way, which is that rather than going after those who are denying Canadians access to culture they are contemplating legal protections for the perpetrators.

The federal government must reverse course on this.  They need to not only clarify that it is legally protected to use VPNs to bypass invalid region restrictions, but regulators must appropriately go after those attempting to restrict Canadians access to culture in the first place.  Because it's 2016, not 1956!

What is Canadian Culture, and who gets to decide?

While this might bother some people, Doctor Who (BBC, UK) and Star Trek (Paramount/CBS, USA) had (and continue to have) a much greater influence on who I am as a Canadian than Hockey Night in Canada.

There was also Star Lost (CTV, Canada) as a child, and more recently the Star Gate multi-series franchise (which I hope we haven't seen the last of) and the 2000's  Battlestar Galactica out of Vancouver Film Studios.  The 1996 Doctor Who: The movie was also filmed in Vancouver.

Even when Canadians are interacting with creativity from outside of Canada, or creativity that was created in Canada but given foreign branding, they are still Canadians.  Why do some people believe it is their right to choose what Canadians consider to be their culture?

With a small percentage of indigenous peoples as an exception, we are a nation made up of immigrants and their descendants. The influence of other countries on what it is to be Canadian doesn't stop when people set foot on Canadian soil.  This influence will be ongoing, and we will adopt parts into ourselves and then project that outward as our own culture.

Trying to apply a quota system beyond the narrow situations where it is not individual Canadians citizens that are deciding what they are accessing is in my mind a denial of who we are as a country, and how our culture is formed and continues to grow.

An earlier discussion paper from the Department of Heritage indicated that, "The way forward is not attempting to regulate content on the Internet, but focusing on how to best support Canada's creators and cultural entrepreneurs in creating great content and in competing globally for both Canadian and international audiences. "

A recent Globe and Mail article goes further to suggest that we will be going a different direction than restricting Canadians access to content.  If she follows through we will be subsidizing and promoting Canadian content, and taking the first step in trying to be "platform agnostic".  Hopefully that will include recognizing that Cable (BDUs) and modern streaming services aren't in the same market, and can't be seen as substitutions.

Will we finally let some of the outdated polices be a part of our heritage, rather than ongoing restrictions on our culture?

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