Friday, December 11, 2020

Heritage Minister and Committee misunderstand the purpose of the Broadcasting Act.

The text of Bill C-10, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts, didn't surprise me. It is only the latest example of a Heritage Minister and the Standing Committee on Canadian Heritage misunderstanding their mandate and the purpose of various laws.  The problem isn't specific to any political party, as Heritage Ministers from the Liberals or Conservatives, and Heritage Committee members from all parties, have all exhibited the same problems. I'm just going to use the term "Heritage" to refer to this group.

The Conflict of Interest

A big part of what the Department of Canadian Heritage does is provide funding to creative Canadians -- arts funding, entertainment funding, and funding for heritage projects (including libraries and archives).  The Heritage Minister and Committee are intended to direct that department, so will also have a focus on that funding.

But, for a variety of reasons, the cabinet doesn't provide adequate funding in the budget for the department.  So, Heritage looks elsewhere to try to provide funding. They have unfortunately grabbed onto the false premise that if they modify legislation that grants intermediaries between creators and their audiences more power, then magically creators will get paid more.

I first noticed this flawed notion with Copyright, where the livelihoods of fellow creators are being harmed by Heritage policies which increase the power of the intermediaries at the expense of creators. The first example I noticed was legal protection for technological measures which empowers technology companies at the expense of creators -- This is companies like Apple, Samsung, Microsoft, Amazon, Google, Netflix -- the "Big Tech" companies Heritage now claims it has a problem with.  The alleged "problem" which Heritage has with these companies is that they have become too powerful and can control what creative works Canadians can access. This is of course the predicted outcome of legal protection for technological measures, a policy which Heritage pushed hard to put in place.

I have seen the same problem with discussing broadcasting and the Broadcasting Act, with the theory being that if Broadcasters are given more control over the Canadian communications landscape that somehow creators will get paid more.

The reality has always been that these intermediaries are the entities that limit the livelihoods of creators, and the purpose of these various pieces of legislation should be to limit the control that these intermediaries have.

Fixing the conflict of interest

The Department of Canadian Heritage was only created in 1994 by Kim Campbell in her few months as PM.  This was a time when Canadian policy makers should have been aware of the upcoming digital transition and been focused on the regulatory benefits of a decentralized digital communications system.  It might be time to question whether the current structure of the department makes sense, or ever made sense, as a way to get Canada out of the current conflict of interest situation.

It seems obvious that the regulation of broadcasters should be considered a specific subset of competition policy, and considered under the department currently called Innovation, Science and Economic Development.  The Copyright Act already lists the Minister of Industry as the relevant minister, and the influence of Heritage over Copyright should be revoked. Digital radiocommunications should not be managed by entities also involved in content distribution, and with that policy clarification radiocommunications no longer needs to have any involvement by Heritage.

What is the purpose of the Broadcasting Act

What should be obvious is that the purpose of the Broadcasting Act is to regulate broadcasters.  Broadcasters have specific control over what Canadians can hear and see, and thus they need to be regulated to reduce the harm that this control can cause.

  • Broadcast programmers set what content is seen at what time. Broadcast listening and viewing has prime-times when audiences are maximized, and the ability to control what is seen then offers considerable power.

  • The technology needed for Broadcasting was expensive, so there were very few broadcasters.  This also granted additional power.

  • Broadcasters were granted a monopoly from the programming, through transmission equipment, to a monopoly on a frequency (part of spectrum) that only they were allowed to use.

  • Broadcasters are private businesses and want to maximize profit. One way they did this was to purchase US programming (which had larger audiences, and thus bulk purchasing pricing) over Canadian programming (which historically tended to have a more narrow audience focus).


All of these factors and more created a need to regulate broadcasters.  It is, however, the unique features of broadcasting that require this regulation and not the generic concept of "content distribution".


As an example, with the invention of record players, cassette tapes, VHS, CDs and eventually DVD's, a mechanism to distribute content separate from broadcasting was available.  This music, movies, television and other content was made available in retail stores and libraries, offered for rent, and distributed over roads (trucks, cars, etc).  At no time did Heritage claim that because content was being distributed that they needed to regulate retailers or the road system.

Then along came the digital transition (See: Hiding OSI layers leading to policy failures: Net Neutrality, Encrypted Media, ... ). Digital technology allows us to break up much of the monopoly control which broadcasters have, which means less of a need to regulate entities which don't have the harmful features of broadcasting.

  • On-demand services allow Canadian audiences to become their own content programmer.  This is analogous to a library (some private, some public), and not remotely similar to a broadcaster. No longer is some programmer in a corporate HQ allowed to dictate to audiences what they can see or when.

    The notion in C-10 that broadcasting should be redefined to include "on demand" makes about as much sense as having a bill that says that the mathematical constant pi (π) should be considered to be 3 or 7 because some parliamentarians want to claim it is.  It is a nonsense concept that creates unnecessary terminology confusion as well as being contrary to the purpose of the Broadcasting Act.

  • Creating and distributing content to wide audiences is no longer expensive because of digital technology, enabling competition where government regulations allow.

    It is now the case that rather than regulating broadcasters because having a few granted them too much control, governments are now regulating non-broadcasters apparently to seek to limit who can communicate.  Instead of regulating problems away, they are regulating problems into existence.

  • Digital communication allows for OSI layers to be split into separate entities.  The physical connections within municipalities can be managed by municipalities, and so-on.  This means that the monopolies no longer exist, as the entities which right-of-way or spectrum granted (now municipalities) are not the same entities which are creating content catalogues or funding content creation.  It is the hardware layers of the OSI stack, preferably managed by municipalities, that are carrying out activities related to "radiocommunication" and not anyone carrying out activities at other layers.

    Unfortunately the government is still regulating digital communications as if it has the limitations of analog, allowing broadcasting entities to also claim control of the communications infrastructure into our homes, and deliberately replicating all the problems from the historical analog technology world in the digital world.

  • This last problem is also partly solved by the competition enabled by digital.  Audiences who want to see more Canadian content, can get more Canadian content.

    In my case my focus is to avoid US centric content, as I really enjoy the International programming on Netflix, and the true domestic (rather than British descendant) content on APTN Lumi and related channels on YouTube and podcasts.  Arts and Entertainment funding should be going to Canadian creators and never intermediaries like broadcasters.  These intermediaries should be thought of as merely "the hired help" for creators and their audiences, and regulation should be intended to revoke intermediary control and never grant it.

To try to regulate non-broadcasting as if it were broadcasting is to try to create a lowest-common-denominator of the harm that broadcasting causes.  This does not create a "level playing field" as broadcasters claim, but only promotes the special interests of those broadcasters against much needed competition.

If Heritage wanted creators to get paid better it would be actively seeking to revoke the control that broadcasting had over creators.  They would do that by strongly regulating broadcasting, and deliberately enabling and promoting non-broadcasting to eventually replace broadcasting entirely as a concept within Canada.  While live-events will still be simulcast, that feature is available from most non-broadcasters and doesn't require that a narrow set of broadcasters control Canadian media.

Side note...

I am happy to see the mention of aboriginal peoples and cultures mentioned in Canadian legislation.  In this case it is too little too late, as broadcasting as a concept isn't something Canada should be promoting as the centrally controlled (and primarily by white men) nature of broadcasting has been a tool used to filter aboriginal peoples and stories from Canadian audiences.

Arts and cultural grants, and not the broadcasting or copyright act, is where these changes need to be made. I look forward to increased and stable public funding of indigenous arts and entertainment!

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