What Bill C-10 is really about.

The letter to the editor I sent to the Hill times was too long, so Kate Malloy (Editor) did her magic and published:

• We need to move ‘broadcasting’ and ‘copyright’ from Canadian Heritage, to Innovation, Science and Economic Development: McOrmond

 

The following is the unedited version with hyperlinks added.

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I've been active in related areas of policy since the 1990's, so have watched the damage caused by the Department of Canadian Heritage (created in 1993 and given royal assent in 1995). This is a department whose Minister was granted jurisdiction over "Canadian identity and values, cultural development, heritage and areas of natural or historical significance to the nation" (from 4(1) of An Act to establish the Department of Canadian Heritage).

• Department of Canadian Heritage Act (S.C. 1995, c. 11)
  

The departmental mandate includes Official Colonial Languages. Given what I have finally learned since the start of 2020 about what the Governments of Canada continue to do to the Indigenous peoples of this homeland, this mandate has a very different meaning for me than it did previously.

• Brief to The Standing Committee on Indigenous and Northern Affairs, for the study of the Subject Matter of Bill C-15
  

Two areas of technology law where that mandate is in conflict are Copyright and Broadcasting, but these were incorrectly included in 4(2) of the Act. These are areas of policy that should always have been the jurisdiction of the department currently called Innovation, Science and Economic Development (ISED), as transferred from the previous Department of Communications.

Sheila Copps set the tone as the first Minister of Canadian Heritage from 1996 through 2003. I met (and debated with her) in the context of Copyright law several times.


Ms. Copps saw intermediaries, such as broadcasters and collective societies, as proxies for creators. When discussing the 1996 WIPO treaties, and technological protection measures, she saw technology companies as one of those proxies. She believed that what was good for Apple, Amazon, Sony, Microsoft and Google would somehow be good for Canadian creators. It shouldn't be lost that the same Heritage thinkers claim to be so concerned with "Big Tech" given it was their flawed thinking which helped create that problem in the first place.

Ms. Copps and her Department of Canadian Heritage helped create a situation between Canadian creators and technology intermediaries that is not unlike Stockholm syndrome.

When the government of the day wouldn't provide an adequate budget for stable arts funding, Ms. Copps would create unaccountable and corrupt cross-subsidy schemes through the CRTC (Cable Production Fund, Canadian Television Fund, Canadian New Media Fund, Canadian Media Fund) and Copyright Board (Private Copying Levy, Access Copyright educational copying, and other compulsory or near-compulsory cross-subsidy schemes).

As technology changes, the department pushes to shift these cross-subsidy schemes into new sectors rather than finally recognizing the schemes were wrong from the beginning.


Once the tone was set, every Heritage minister since, Conservative or Liberal, and every Standing Committee on Canadian Heritage (CHPC), has followed her lead.

When I was very active in copyright with what a decade later was passed in 2012 as Bill C-11, I would closely follow what was said from MPs from the Standing Committee on Industry, Science and Technology (INDU) committee and those from the Standing Committee on Canadian Heritage (CHPC). It was my observation, including from meeting MPs in person, that the difference in views between an MP on INDU vs CHPC was far greater than the difference in views between a Conservative and NDP MP in the same committee.

During the 2019 review of the Copyright Act, INDU was forced to put out a press release reprimanding the CHPC for what for many people was yet another report from CHPC which read as if it were written by corporate lobbyists rather than a committee pretending to be concerned with the public interest.

• News release from the Standing Committee on Industry, Science and Technology: On Shifting Paradigms
  

The same is regularly said of the CRTC, which largely acts as a lobbyist for specific corporations rather than regulating in the public interest.


So, what is Bill C-10 really about?

• C-10: An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts
  

In clause 1 it redefines "broadcasting" to include activities not related to broadcasting in order to yank jurisdiction away from ISED (INDU committee, and agencies such as the competition bureau, privacy commissioner, etc) toward Heritage and the CRTC.

It really is that simple. There is further discussion of cross-subsidy and other schemes, and some pennies to Indigenous languages and content to distract from the Heritage department's primary colonial mandate, but the core of the bill is a corrupt power grab between government departments and agencies.

While the Internet needs to be regulated, that regulation must be via a department and ministry, studied by a parliamentary committee, and managed by regulators that are looking at these issues from a lens that is the opposite of what Heritage and CRTC will offer.

• We need to remove "Broadcasting" and "Copyright" from the Department of Canadian Heritage, and move those areas of policy to ISED where they always should have been. Only then should the policy in Bill C-10 be revisited with the appropriate lens.
• We need to properly fund and empower the Competition Bureau, Privacy Commissioner, Consumer Affairs, and related agencies to handle a growing number of Internet issues.
• We need to complete the digital transition, not continue to regulate digital technology as if it were still analog. (See letter from March 1, 2021, copied below)
• We (including fellow creators) need more choice and competition in content distribution technologies, not less via central control.
• We need to disallow content distribution intermediaries from controlling technology which they don't own, such as was allowed/enforced in "Copyright" under "technological protection measures".
• We need creators to have more control over their own content distribution to maximize the benefits for themselves, rather than continuing to allow intermediaries to extract maximum benefits off the backs of creators.
• We need to empower audiences to make their own choices of what creativity they access. While we need to regulate situations where the sender is the content programmer (as was the case with analog-era broadcasting), we should never be regulating scenarios such as on-demand content libraries where it is the audience doing their own programming. (Discoverability is a Competition policy issue, not a Cultural policy issue)
• We must end unaccountable cross-subsidy schemes, especially never extracting money from services deemed essential during the pandemic to sectors which were not.
  

Russell McOrmond
Ottawa, Ont.
(The letter-writer is an internet consultant.)

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Feds should complete digital transition as part of its response to COVID

March 1, 2021


Re: “Bell Canada’s cuts were a shoddy way to treat people,” (The Hill Times, Feb. 10, by Andrew Caddell). I would like to point policy-makers to my May 2020 submission to the Standing Committee on Industry, Science and Technology. In it, I suggested that the government complete the digital transition as part of its response to COVID.

The summary is that the pandemic demonstrated that communications infrastructure is an essential service. While having vertical integration was required by analog technology given you couldn’t put both telephone and television signals on the same wires, this is no longer the case with digital technology.

With digital technology the obvious way to manage the physical layer within municipalities is as a utility, where municipalities own and manage the infrastructure as they do with all other infrastructure. A competitive private sector can then offer services “over the top,” as happens with other infrastructure including roads. With an actual digital transition, we no longer need to have an exception for this communications utility.

While Bell Canada was necessary when we needed a dedicated analog telephone system, this time is long past. Any laws granting analog-era, private-sector privileges to right-of-way or wireless spectrum, including the Bell Canada Act, should be phased out as part of completing the digital transition.

• INDU Study: Canadian Response to the COVID-19 Pandemic
• Direct link to PDF of my brief.
• Text published on this blog: My telecommunications focused brief to INDU for Canadian response to COVID-19 pandemic
  

Russell McOrmond
Ottawa, Ont.
(The letter-writer is an internet consultant.)

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.

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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!

Participatory democracy vs corporate media

I watched a video which CPAC put up of the new Green Party leader Annamie Paul speaking with reporters.

 

 

I became increasingly annoyed at the number of times reporters asked the same form of question. In their corporate minds, Annamie Paul was just placed as the CEO of the corporation called the Green Party of Canada. They wanted to know the many different ways that she would dictate commands to those the media insisted were subordinate to her, whether that be staff at the party, elected members of parliament, or candidates.  She had to constantly remind them of what a "healthy democracy" looks like.

Many of the biases of these reporters were obvious, even though these reporters would likely falsely claim they weren't biased.

As I have watched Canada's democracy decline over my lifetime, I have noticed that rather than the corporate media holding politicians to account that they are only making things worse.  Rather than recognize that democracy is more healthy the more decentralized it is, the corporate media has constantly manufactured fake scandals when any group displays healthy democratic traits by having disagreements in a bottom-up rather than top-down fashion.

 

The Global Greens Charter sets out the principles that bind Greens from around the world together:

• Participatory Democracy
• Nonviolence
• Social justice
• Sustainability 
• Respect for Diversity
• Ecological Wisdom

 

My greatest critique of Elizabeth May and the current federal council has been their willingness to abandon the first principle (participatory democracy) in order to appease Canada's anti-democratic corporate media or align themselves with the corporate structured parties.

I believe Elizabeth Mays support of "party proportional representation" (measured via the Gallagher index) was itself an abandonment of this first principle. Political parties are merely corporations, and a centralizing focusing on corporate brands over participants or representatives is unhealthy for democracy.  While Canada needs electoral reform in the form of ranked ballots in single and/or multi-member districts to make representatives more representative of citizens, electoral systems focused on corporate proportionality only makes the existing corporate focus worse.

I also believe the idea of having a leadership 'vetting committee' was an example of the problem.  While I strongly oppose the adoption of US-style primaries as it is unhealthy for Canadian democracy, having a top-down group deciding who is allowed to be nominated makes this bad situation worse. While the party may sometimes need a media spokesperson separate from the caucus elected leader (especially whenever there isn't an elected caucus), that person should never be falsely treated by the media as some sort of CEO.

It is beyond time for reporters employed by Canada's corporate media to recognize their harmful role within Canadian democracy.  The media can't oppose a healthy democracy and then be surprised when fewer and fewer people are willing to go to them to find out what is happening in Canada.  If they want public support, they need to switch to offering the public service of holding politicians to account.  This means treating elected representatives as accountable to citizens, not acting as if MPs were employees working within "elected" corporations (IE: political parties).

While I support participatory democracy over representative democracy, lets at least ensure that elected representatives are never expected (or preferably even allowed) to have loyalty to corporations over citizens.

My thoughts on the 2020 Speech from the colonial Throne

This afternoon, on unceded Anishinabe Algonquin territory currently the subject of treaty negotiation, a British colonial ceremony was held. With parliament only retaining British tradition, we were reminded by a "speech from the throne" that to this day the settler-state doesn't fully recognize the two groups who make up Canada: European colonialists/settlers and the peoples who had already been here for thousands of years.

As I read the text of the Speech from the Throne I noticed a few themes. I could easily put them under an overall headline of the continuation of narrowly harnessing European world views to attempt to further public policy goals.

• A  romanticization of over 150 years of the members of our European settler-state parliament dealing with challenges, with no recognition or harnessing of the experiences of the peoples who were already here for thousands of years.
• The continuation of the European entitlements vs responsibility world view around rights, which generate the wealth and power inequality at the heart of the gaps in social responsibility.
  
• A continuation of creating excessively large centralized entities which then need excessively large government regulatory and police interventions, rather than enacting policy to decentralize.

 

The speech properly recognized that we are in a series of crises, including not only COVID-19 but also climate change. There is also a crisis of legitimacy, where more Canadians are questioning the status-quo of how government has been operating.

Solving these problems requires far more change than postponing travel plans.  I believe it will require re-evaluating our world views, including abandoning the entitlement concept which allows individuals and groups to exploit resources (land, animals, people or ideas) to extract private benefit without any responsibility.  We need to think of rights as responsibilities we have to each other, not as entitlements we take from everyone and everything else.

 

Systemic racism is mentioned, but only in the unfortunately common "white" way of incorrectly believing that systemic racism relates to systems which include individual racists.  Systemic racism relates to the norms and practices within society or an organization. Good individuals can participate in systemic racism, as it is not about individual attitudes.

One large class of examples is the use of police forces as a top-down mechanism to ensure conformity to policies that deliberately avoid discussing the roots of the disputes that armed officers are thrown into. Those who are talking about defunding or abolishing the police are discussing changing our focus to solving societal problems at their roots.  This is not limited to the "war on drugs" or "war on mental illness", but many other government policy manufactured armed conflicts.

While claiming to recognize that Black Canadians and Indigenous Peoples are over-represented in the criminal justice system, the government had already stated it believed that criminal code amendments were needed for those who neglect seniors.  It is Canadian society, including the federal and provincial governments, that are neglecting seniors and yet through a "white" lens the solution is always seen to narrowly focus on criminalizing individuals.

I feel there is a similar problem with bringing up that it is unacceptable that any citizen be arbitrarily detained in relation to Michael Kovrig and Michael Spavor. The same is true of Meng Wanzhou being detained in Canada as a barely veiled part of trade and other disputes between the USA and China.

The RCMP has excessively close ties with a specific subset of foreign agencies and foreign political interests, and none of the above listed people would currently be detained if it were not for the hypocritical structural failures of the Canadian government.  The Five Eyes (FVEY) membership overlaps with the countries that opposed the Declaration on the Rights of Indigenous Peoples (Australia, Canada, New Zealand, and the United States -- all British colonies, with the UK itself being the fifth member of FVEY). This should cause us to openly question what world views and values these agencies have in common.

The government can claim in a speech that this is something for which all Canadians stand united, but that doesn't make it true.

The backward-facing discussion of "Web giants" is another example of the government trying to hide its own policy failures.  Our communications infrastructure involves government granted monopolies in the form of right-of-way for physical wired infrastructure and spectrum allocation for wireless.  Phone companies were created by provincial and federal governments, and cable companies via municipal monopolies.  While this infrastructure exists as a matter of government policy, private interests were allowed to buy up all these monopolies such that only a handful of private sector companies claim exclusivity over most of the right-of-way and spectrum.  These companies then also bought most Canadian media that would be communicated over those wires and wireless, including television stations, radio stations and newspapers. (Note: Given their lobbying record, I consider CBC to be a Bell partner and not a public service)

When companies involved in physical entertainment distribution (Book/tape/CD/DVD sellers including Amazon, DVD rental by mail including Netflix) wanted to move existing distribution online, they were blocked by these vertically integrated monopolists. When possible Canadian online competitors to cable were formed, the monopolists blocked it (convincing parliament to pass targeted legislation against already existing iCraveTV and JumpTV). The same was true even of companies that offered search engine services that could be paid by advertising. These companies that could not get big enough were forced out of existence, and those who did were forced to move into the media creation and/or distribution business in order to be allowed to exist at all in a policy world controlled by analog-era media monopolists.

So the "Web giants" are a result of failed government policy around phone and cable companies, and compounding these failures can't possibly solve anything.

I have come to believe that the only solution to this problem is structural separation. The monopolies, whether for right-of-way or spectrum, should be returned to municipalities and managed as a utility in the same way as all other critical infrastructure is.  All over-the-top (OTT) services, including two-way voice (phone) and one-way simultaneous video (cable/etc), would compete on a level playing field and no longer be legally allowed to leverage government granted monopolies.

Taxing new media to perpetuate problems caused by old-media monopolists will only make existing problems worse. This will only increase the cost of those services for Canadians, when those services are providing far better value than the old-media monopolists.

Shitts Creek was able to break the Emmy's record for the most wins of a single reason of a comedy only after it was able to break free of CBC and get wider distribution internationally on services such as Netflix. While we should be providing more stable funding to Canadian production through accountable government subsidies (not anti-competitive old-media entitlements), that money and any other subsidies should be moved entirely away from legacy OTT media companies (broadcasters, and BDU's like cable companies).

Having a "Universal Broadband Fund" is also counterproductive when that money is handed over to old-media monopolists.  Necessary government support from the provincial and federal level should only be to municipalities building their own municipal infrastructure, and never to continue the harm of allowing private-sector monopolists to gain unaccountable control over that infrastructure.  It is the local communities, through their municipalities, that should be setting infrastructure priorities and not those priorities being set in the boardroom of some distant private sector monopolist.

I was happy to hear a renewed commitment to reverse almost a hundred years of Canada's opposition to the policies that became the United Nations Declaration on the Rights of Indigenous Peoples. Canada needs to abandon its colonial period, and no longer side with Australia, New Zealand and United States as settler colonies of the United Kingdom.  We should instead be moving forward with decolonisation in order to become a republic. As a settler Canadian I do not support the continued implication that Canada was formed only by two sets of European colonists (French and English), and that these Europeans took over this land through conquest rather than being honorable with our existing treaty partners and within ongoing treaty negotiations.

Imperialism of the Canadian Broadcasting Corporation

Whether it is SNC-Lavalin, CGI Inc, BCE Inc. (which owns Bell Canada) , or CBC, there is always a lot of flag-waving from lobbiests and defenders when these corporation are doing or saying things that corporations with different addresses of their headquarters would never get away with.

CBC President Catherine Tait's attempt to flag-wave recently went as far as to claim digital native companies were imperalists.

The problem with her analogy is that when it comes to post-convergence digital communications policy, it is representatives of analog-era companies like the CBC that are the foreign entities. Protecting the interests of Canadians from this imperalism is why I have called for a shift of funding away from the CBC to Canadian creators.


We need to put the policies which the CBC and Bell promote in a proper context.

Taxing Internet connectivity, or digital media distribution companies, to subsidize analog-era broadcasting is about as legitimate as putting a tax on salt in India.  While it is obvious why the foreign interests want natives to subsidize them, it should be recognized immediately as wrong.

Modern media distribution companies like Amazon and Netflix started with distribution of physical media: books in the case of Amazon (quickly moving to digital distribution with CD's and DVDs), and DVD's in the case of Netflix.  At that point nobody suggested that these content distribution companies should be subject to broadcast policy.  It is still the case that nobody suggests that Walmart, Costco, Best Buy, or the hundreds of other companies involved in the distribution of digital content on physical media should be thought of as if they had anything in common with broadcasters.

As these digital native content distributors added online distribution to their offerings, nothing changed that has anything to do with broadcasting and yet the analog-era broadcasters have been on the offensieve against digital natives for as long as Internet bandwidth has been sufficient to stream video.

You might ask why we haven't had digital native companies that are also headquartered in Canada.  To understand why this hasn't happened you only need to look at decades of successful flag-waving misdirection campaigns from the analog-era broadcasters and BDUs (cable/satellite/etc companies).  In 2002 they convinced parliament to pass a bill that would disallow a "new media retransmitter" the same exceptions to copyright which enable analog-era cable companies to exist.  If  iCraveTV and JumpTV had instead been appropriately embraced as the innovators that Canada desprarately needed, we would have had domestic new media companies long before Netflix launched in 2008.  Other than the additional bandwidth that currently exists today, what iCraveTV and JumpTV attempted to offer with their IPTV service wasn't technologically different to Bell Fibe TV.  What was different is that Bell is constantly able to get away with activities which would be considered illegal if other companies did it.


When Bell and the CBC make any complaints about Netflix, Amazon Prime, or Google (Play/YouTube) in Canada, we need to remember that it was the imperalist lobbying from Bell and CBC which blocked Canadian digital native companies from forming.   If we are to facilitate Canadian companies in this marketplace we need to provide assurances and incentives to protect digital natives from the imperalist broadcasters and BDUs.

I can only hope that blindly protecting the activities of Bell and CBC will eventually be as politically toxic as blindly protecting SNC-Lavalin has become.

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Addendum:
Feels like Timothy Denton's Blog is relevant.

There appears to be an SNC-Lavalin-style relationship of telcos to government that needs further exploring and, if necessary, expunging.

Budget 2018 Investment in Canadian Content a missed opportunity

I checked Federal Budget 2018 for new support of Canadian content creators.  What I found under the title of "INVESTING IN CANADIAN CONTENT" (Chapter 4) is disappointing, as it is media creation that continues the conflict of interest tie with the broadcast sector.

The CMF receives funding contributions from the Government of Canada, but it advertises as also receiving "contributions" from Canada’s cable, satellite and IPTV distributors (Broadcast Distribution Undertakings, or BDUs). 

CMF contributions are mandated by the CRTC, shouldn't be thought of as donations, and BDUs shouldn't be "thanked" for actually paying what they owe. CMF contributions should be thought of as a highly justifiable tax on BDUs as compensation to the public for the right-of-way and other privileges which BDUs have been granted by multiple levels of governments.  The CMF contributions page should only list the Government of Canada, with special taxes collected from BDUs being earmarked for small-screen content creation.

The problem with this money being seen as coming from BDUs is that the BDUs then believe they "own" this content and should have the right to deny this content being available from competing legal streaming services.

As discussed in my recent CRTC submission opposing "site" blocking, the business practices of the BDUs do not support the interests of content creators, and are all too often a form of contributory infringement.  A condition of CMF funding should be that the results be made available via legal streaming, at least simultaneously with any broadcast.  I am not suggesting that the content be free, but that all Canadians be given the right to pay without also needing to subscribe to any BDU or access via broadcasting.

While I welcome stable arts and cultural funding from any level of government, I do not consider an increase in funding of the CMF to be an example.  The appearance of a tie to BDUs ties that federal money to the ongoing battles that the BDUs are having with legal streaming services.  This prolongs the current instability.  The fact that (un)Fairplay contains a few vocal stockholm syndrome victims (creator groups who incorrectly believe the BDUs and broadcasters support their interests) suggests that this will continue to be a problem.

While I support the new STEM money for granting councils, it is unfortunate I didn't see new money for arts.  There is only a small mention under "Supporting Canada’s Official Languages".

CBC

I found no reference to the CBC, suggesting the federal contribution and policy surrounding the CBC is unchanged.

This is also unfortunate, as instead of the CBC being part of the solution to the problematic tie between the cultural industries and historic distributors, the CBC has continued to be part of the problem.

The CBC decided to sign onto the BDU's (un)Fairplay coalition.  While it might be nice to think of the CBC as creators who are only stockholm syndrome victims, I believe they are acting as a commercial broadcaster who sees the inevitable move away from broadcasting and BDUs as a threat.

I've proposed that the CBC be split up, with government funding only offered to content creation.  This splitting up would effectively be an increase in cultural sector funding, as the private sector broadcasting arm will fade away as broadcasting is replaced with streaming.  Having a more competitive private sector distribution market needing to bid on programming also drives up the cost of higher quality content, meaning more money for the content creators.

 

Intellectual Property

 

This term appears in the budget a few times. While there is a focus on patents, copyright policies can help or hinder the interests of the arts and cultural sectors.  Proposed legal clinics and increased literacy might help artists and other creators to harness (rather than be fearful of) new distribution mechanisms and technologies.

While an "intellectual property marketplace" was mentioned in the context of public sector-owned intellectual property, this is needed in the private sector as well.  I mentioned in my CRTC submission how hard it is for Canadian fans to find content on legal streaming services, and the need for public disclosure of exclusive content distribution licenses. An expansion on the concept of an "intellectual property marketplace" could go a long way to solving this problem with a publicly searchable database of private sector arts and culture.  This licensing transparency and creation of a functioning marketplace isn't something that can be left to the existing private sector distributors who have conflicting interests, and requires government intervention at least during the transition.

Yes, CBC, I'm waiting for Alias Grace to be on Netflix.

CBC runs InCanada, an "online" Canadian Media Panel. I put "online" in quotations because while the panel is online, the CBC's broadcaster bias is always visible in how they ask questions. The latest survey is no exception.

The survey was essentially about Alias Grace, a Canadian-American miniseries that will air on CBC on September 25, 2017, and on Netflix on November 3, 2017.

The survey typically conflates Netflix with broadcasters, when Netflix is not a broadcaster. This is about as nonsensical as confusing a radio station with a record store when discussing music, and yet the legacy broadcasters continue to try to push this nonsense.

I sometimes make the comparison to the difference between an outhouse and indoor plumbing: Like broadcasting, people made use of outhouses before modern conveniences like indoor plumbing came along. And like indoor plumbing, people aren't likely to want to go backwards once they get used to online streaming.

While outhouses still exist in places where indoor plumbing is not available, it is not the predominant way that people "do their business". Unlike with an outhouse, there is no sense of urgency to use the outmoded platform to watch Alias Grace.


The survey asked if I saw the American series The Handmaid's Tale (TV series). While this was distributed by Hulu starting in April 2017, the series was blocked from Canadian access by Bell until they made it available on CraveTV in late July. Bell blocking, hiding and/or delaying lawful access to content is typical, and I consider them to be the largest Canadian contributory copyright infringer for their ongoing inducement of infringement.


If the NAFTA negotiations were intended to modernize trade relations within North America, the trade barriers disallowing cross-boarder shopping for telecommunications services and creative content would be a top priority. I believe we could massively reduce copyright infringement in North America if we moved to a single content market, where creators from the entire of North America had unrestricted access to the audiences of North America. That includes the content distribution services. North American audiences should also have the right to subscribe to any North American streaming service, and regional content restrictions within North America would be prohibited.

The concept of Canadians not being to view content at the same time as US audiences, including having the option to subscribe to the same online distribution services, must quickly become a distant memory.


Canadian Content policy should be focused on content, not on outdated distribution mechanisms. Hopefully a pro-free trade agenda will be part of the current Heritage Minister's thinking: you can't promote Canadian production capabilities and wide global distribution of Canadian content while still allowing regional content blocking.


Bell's anti-free trade agenda is trying to push policy in the opposite direction, including asking for mandated blocking when Canadians wish to access content that is not lawfully streamed in Canada. Bell is asking for mandated blocking because they want competitors to have to block the same competing distribution sites Bell already wants to block, which is also why they oppose VPNs (Apparently the technology, not only the perfectly legitimate cross-boarder-shopping use).

If I wanted to watch The Handmaid's Tale when US viewers were (or those that can tolerate the smell of an outhouse/broadcaster), or on the devices of my choosing, I would be forced to infringe copyright (easiest) or use a VPN (Less convenient, but currently more lawful).

There was no sense of urgency to watch The Handmaid's Tale. While there are shows that are important enough to me that would warrant finding alternative streaming options, none of these TV series based on Margaret Atwood novels are of sufficient interest.


My wife and I watched Handmaid's Tale on CraveTV. CraveTV is a horrible streaming service: there is a difference between the indoor plumbing at a 5-star hotel and an out-of-the-way truck stop. We only watch programming on CraveTV when it is not available anywhere else. The CraveTV Android App crashes fairly regularly. CraveTV works on few of my devices, compared to Netflix which pretty much always works -- and Netflix even has a simple app built into the SmartTV such that my wife and in-laws can also use it (CraveTV is too messy for less technical people to put up with).


While CBC isn't as bad as Bell when it comes to policies, I believe their outdated broadcaster-era thinking is harmful to Canadian creators and taxpayers.

Ad free CBC? Why not shift money to creators?

In response to articles discussing an advertisement free CBC, I had the following to say:

#DigiCanCon @howardalaw I would rather that money went to distribution mechanism neutral content creation: #CBC via #Netflix #GooglePlay etc

— Russell McOrmond (@russellmcormond) November 29, 2016

When I was asked to elaborate, I realized I need to give context as most people in the content industry do not think the same way as I do as a system administrators with decades of experience in the technology industry.

The layered approach to communications technology

4134   COMMISSIONER DENTON: Mr. McOrmond, interesting brief. I see it is informed by an internet idea of the world.

4135   So in your preferred solution then there would be essentially some kind of bandwidth to the house, whether wired or wireless, it would be part of a municipal infrastructure such as sewage or water, and applications would float on top of that or through it.

4136   Now, what happens to the carrier in that instance?

4137   MR. McORMOND: I am essentially suggesting that we no long would have carriers in that instance. They would be replaced by a utility and a free market.

4138   COMMISSIONER DENTON: Right. So you realize this is formally heretical and they will be onto you for this?

The above is from an intervention I made in front of the CRTC in 2009.  I'm not informed by an Interned idea of the world, but informed by the OSI model upon which most digital communications infrastructure is designed.  This model emerged in the late 1970s and early 1980s, and was already in-place when I was learning about digital networking in the 1980's before I or most people heard of the Internet.

The core idea is quite simple:

Its goal is the interoperability of diverse communication systems with standard protocols. The model partitions a communication system into abstraction layers. The original version of the model defined seven layers.

A layer serves the layer above it and is served by the layer below it. For example, a layer that provides error-free communications across a network provides the path needed by applications above it, while it calls the next lower layer to send and receive packets that comprise the contents of that path. Two instances at the same layer are visualized as connected by a horizontal connection in that layer.

When we are talking about the layers that together offer wired Internet services, I separate the layers tied to geography (layers 1 and 2) from layers above that.  I consider all digital communications (whether it is ISP services providing IPv4 or IPv6 public routing, IPTV, cable or telephone) to be "over the top" of that service.

This is quite different than how the converged phone and BDU industries define it which is that only competitors to their own vertically integrated services are "over the top".  While I am using a neutral definition that is based on the underlying technology, they are using a business definition which privileges existing vertically integrated companies over the interests of a competitive marketplace.

This creates very different language between people from the Information Technology industries and people who are part of the converged telecom/BDU industries.

How does this layering impact the content industries?

When I look at the content industries I also see a number of layers.  Like my separation between physical networking and services that are built "over the top" I separate industries involved with the creation of content from those who are involved in the communication or distribution of that content between creators and audiences.

In the most recent "Canadian Content in a Digital World" consultations the type of content discussed most often was television ("small screen" format video content, contrasted with "big screen" format movies).

When some people think of television they bundle together everything from the first ideas that a scriptwriter has all the way to the wiring (aerial, cable/satellite/IPTV receiver) that plugs into the television.  Most stop there and at least don't consider the television manufacturers to be part of the same industry.


When I think of television I see a series of layers with interoperable interfaces between them.

• Content generation:  There are a large number of creators involved in the production of scripted (and even unscripted) shows. While there are different layers within, I feel comfortable as an audience member grouping those layers together even if the different layers are critical within the industry.
• Content distribution:  There are many interoperable and competing methods, with the following being only a few examples:
• physical media distribution, such as DVDs, through online and physical retailers
• online content libraries, which includes flat-fee subscription services like Netflix or online retailers like Google Play or Amazon Video (once launched in Canada to compliment their existing physical DVD distribution business)
• Broadcasting and BDUs, which provide pre-programmed streams of content (Note: I strongly reject claims that online content libraries are more similar to broadcasters than they are physical media retailers)
• Content access: there are a wide variety of access technologies, and an increasing number of these are networked within the home.  One content access device (receiver) may be a different home networked device than the screens used to view and the speakers used to hear, and we need vendor neutral interoperability between these devices.

In my primary submission to the DigiCanCon consultation I focused on how the government managed (I suggest mismanaged) convergence.  The transition could have been a transition from purpose-built analog networks where what was on top of the network was fixed to one that could be modeled after the OSI networking model with interoperability between services built on top of each other.


I believe the greatest threat to the content industries is ties to specific brands or technologies on other layers of the communications stack.  If, as an example, a screenwriter believed that their future is tied to that of "broadcasting" then they will try to force any type of content distribution -- even disruptive technologies that will likely replace broadcasting for most audiences of scripted programming -- to act as if they were the same "broadcasting".

This policy is of great benefit to the "broadcasting" industry, who would then have less to fear from competitors hobbled by a regulatory environment that is mismatched for these competitors.  It is, however, extremely harmful to the interests of the content industries as well as their audiences.  There are many features of some of these disruptive technologies which would benefit creators that they won't be able to harness if they incorrectly identify suppliers of these technologies as opponents.

The Innovator's Dilemma

Much of the dynamic we can see between the content industry, broadcast industry, and Canadian audiences can be explained by Clayton Christensen's 1997 textbook The Innovator's Dilemma: When New Technologies Cause Great Firms to Fail.

Over-simplifying: companies who were successful in one market have a hard time providing services based on disruptive innovation that is likely to replace the older market.

This can be seen with broadcasters, and those that see themselves as dependent on broadcasters, claiming that Netflix and other "foreign" companies are extracting money out of Canada.  Not discussed in this attempt to wave the Canadian flag is the fact that there are no domestic competitors because the incumbent content distributors are themselves "broadcasters" who see this disruptive innovation (online content libraries) as a threat. They have been unwilling to offer that service, and have done everything they can to block competitors.  The closest that will remain at the end of the month is CraveTV which isn't competitive with first-run content libraries like Netflix, most likely because it is owned by a parent company that doesn't want to disrupt its existing broadcasting and BDU services.


My own experience trying to watch Supergirl in Canada is an example of what happens.  As the "broadcast" industry was tied to specific geographic regions, much of the content licensing models have been as well.  Canada is carved out and one entity, in this case (and all too often) a broadcaster (Showcase, owned by Corus Entertainment), is granted an exclusive license for the region of Canada.  That broadcaster then doesn't want online content libraries to compete with broadcasting so doesn't advertise (or sometimes allow to be offered) legal alternatives to broadcasting, nor provide services to paying customers who have opted for existing legal alternatives.

I was essentially forced by Showcase to resort to using a VPN service to bypass region restrictions and watch Supergirl from a US source.  While I paid money to Showcase for a season pass, Showcase hasn't been willing to update the content library offered through Google Play with new episodes.

I had the same problem with other shows including Game of Thrones and BBC Class which Bell apparently would prefer I infringe copyright than find out about legal alternatives to broadcasting.

Personally, I "cut the chord" (unsubscribed from cable service) years ago, and don't want to go back any more than I want to give up indoor plumbing or other modern conveniences.

An Ad free CBC?

CBC is a large corporation that receives a large amount of public money for all the layers that exist within it.   I believe taxpayers should be looking more closely at each layer and ensure that it is taxpayers and the politicians that represent us that more closely direct the specifics we want we are willing to pay for:

• Canadian content creation:  I want to see more of this.  This means not only am I willing to have my tax money going towards content creation, but that I want the results to be available to me.  I don't use the services of broadcasting (OTA or via a BDU), so content that is only made available via broadcasting isn't made available to me.  As I wrote in my submission, public funding should be conditioned on wide public access.  This means being neutral on the wide variety of content distribution mechanisms and services.
• Domestic and foreign radio broadcasting:  This is the cheaper of the two types of broadcasting, both for transmission and reception.  This is an important way for Canadians domestically (especially in rural and remote areas), as well as abroad to get news from Canada.  Terrestrial audio radio is accessible in locations which can't be served by the Internet.
• Television broadcasting: I only believe in subsidizing television broadcasting in rural and remote areas not able to be adequately served by commercial broadcasters.

A proposal to add $318million more to CBC's budget to remove advertising from broadcasting doesn't sound appealing to me.  If we were talking about $318million more for Canadian content creation that would be accessible to me as an audience (public money conditioned on being neutral as far as content distribution systems) then I would be in favor.

Even if we were talking about transferring budgets away from television broadcasting to subsidize emerging content distribution as a policy tool to reduce copyright infringement, I would be in favor.

I don't see anything of value to me of making broadcast television ad-free.  It might make that broadcaster more competitive with online services that are paid for by subscribers rather than advertisers, but I think that is a very inappropriate abuse of public funding.  The last thing I want is my tax money funding a broadcaster which would think of online content libraries as a "competitor" (or some extremists claim "industrial dumper") and be denying me access to content which I partially funded.

A more future-facing proposal

 

I believe we should be creating structural separation between the major layers in the CBC.  Specifically, content creation would be structurally separated from any type of content distribution.

As part of that structural separation some of the money currently paid to the content distribution layer (the broadcaster) should be shifted to content creation.  I do not believe it is advertising that conflict with CBC's public interest mandate, but the conflict of interest that arises whenever content creation and content distribution are thought of as a bundle.

In markets where the broadcasting arm is seen as being in competition with commercial broadcasters, we really need to finally ask ourselves if a publicly funded content distribution service should be in that market at all.

And yes, it wouldn't make sense to call the Canadian Content Creation Corporation (CCCC?) the CBC any longer...

Canadian Content Creators harmed when Netflix claimed to be a "broadcaster"

A few people have posted a similar message with the #DigiCanCon hashtag.

If we want CDN shows on *all* our screens *all* broadcasters must contribute#Netflix #DigiCanCon Content providers raise our voices Nov 7.

— Barbara Worthy (@1babs) November 6, 2016

If we want CDN shows on *all* our screens then *all* broadcasters have to contribute. #Netflix #DigiCanCon

— Heather Knox (@the_heatherknox) October 28, 2016

(Barbara Worthy is a writer, performer and producer primarily for CBC. Heather Knox is a Toronto based actor.)

While their intention might have been to add some money to a funding source, ideas within this tweet threaten funding for Canadian creators as well as threaten their creativity in other ways.

Funding issues

I discussed a number of the funding issues in an earlier article on making sense of the Netflix, ISP, ICT DigiCanCon tax. That was a summary of some of the most visible proposals, and a suggestion that funding through general revenue is the least risky to the interests of content creators. The posting didn't put these proposals it in the larger context of other funding programs as Michael Geist did in The Billion Dollar Question: How to Pay for Melanie Joly’s Digital Cancon Plans.

This context is critical.  While Heather, Barbara and others want to add some money to the millions involved in the Canadian Media Fund, what their campaign will likely do is put at risk the billions of dollars of support that the cultural industries already receive from Canadian taxpayers. The more the cultural industries want to extract money from communications infrastructure used for far more than communicating cultural works, or tax services that make content easier to legally access, the more likely the new generation of online activists will start to highlight, scrutinize and target all subsidies to the cultural industries.

This is a very risky scenario for the cultural industry, especially if any of the larger players in the ICT industry feel threatened or are lobbied into action by their customers.  I once gave my technology property rights talk at a technology conference. After the talk someone who worked at Intel came up to me and said that I shouldn't be concerned about the content industry trying to influence features in or having control over communications technology.  He said that if the content industry were able to change policy in ways that didn't benefit Intel that they would purchase them: purchase the major studios and record labels, and ensure that these industries continued to promote ideas that were to Intel's benefit.   This of course didn't reduce my concern as I believe citizens and not third parties (device manufacturers or content industry) should be in control of the technology that intermediates more and more of our lives.  It was an important reminder of the relative size of some of the companies in the ICT industry compared to the content industry.


Rather than increasing cost through levies or taxes, we should be subsidizing services like Netflix as a measure to reduce copyright infringement. While broadcasting is a very different market, lawful content libraries like Netflix exist in the same space as unauthorized content libraries. The more we can drive Canadians to non-infringing content libraries like Netflix, the less infringement will happen in Canada. Moving Canadians away from infringing sources of content, sometimes the only content library source for specific content, represents a far more important source of funding for Canadian creators than anything that can be extracted via a levy on Netflix.

Spectrum of Canadian content freedom.

While the ideas in those tweets put funding at risk, they also cause risk to creators beyond funding.

To understand this you need to picture a line which can represent the spectrum of Canadian content freedom.

By spectrum I am referring to a classification in terms of its position on a scale between two extreme or opposite points, from one end being absolute control and the other end being content freedom.  I am not speaking of a set of transmission frequencies.

To avoid any confusion, freedom is a question of liberty and not price: content freedom is about removing barriers to audiences accessing the content that they want while continuing to ensure creators get compensated.

From the controlled end of the spectrum

• One extreme is when an individual or entity unilaterally decides what content people must watch at any given time.
• One step towards freedom from this is when audiences are allowed to opt not not listen or watch.
• One further step towards freedom from this is when audiences have more than one stream of content to choose between.  Even though what is on the stream is still fully programmed by someone else, the ability to choose between streams allowed for some minimal content freedom.

This is the world of broadcasting.  What is on each stream is programmed by someone, but there are choices of streams.  I grew up in a smaller town in an area not serviced by cable television where there were a handful of radio stations and 4 over-the-air television stations.  Those 4 television stations (A French and English CBC affiliate, a CTV affiliate, and TV Ontario) were the fully programmed video streams that we could watch.

What makes something broadcasting is not whether sound, video, or even text data is communicated "by radio waves or other means of telecommunication for reception by the public" (Broadcast Act) but the fact that this communication is programmed.  The broadcast act regulations are intended to be targeted at the programmers, to ensure among other things that these programmers weren't unduly filtering or dictating what content Canadian audiences are able to enjoy.

As these streams were fully programmed they delivered what the programmers wanted people to see, not necessarily what Canadian audiences wanted to see.

One obvious thing missing was that Canadians wanted to hear and view some of our own music and stories told by fellow Canadians.  It was cheaper for the programmers at the broadcasters, especially for television, to license Canadian rights to US shows than to license (often fully finance if there weren't additional markets) Canadian content.

• To bring Canada one step further on the content freedom spectrum, Canada introduced Canadian content quota requirements.

While some may feel content quota system exists to serve content producers, the policy can primarily be justified as a mechanism to better enable Canadians to access the content they want and not have the programmers at a broadcaster dictate what they can and cannot enjoy.  I believe we need to recognize the high value of Canadian content to Canadians, and recognize that we do not need to force Canadians to view or listen Canadian content. We only need to regulate intermediaries which might otherwise not be offering Canadians access to content created by fellow Canadians.

The date you first came across cable television depended on where you lived in Canada.  As early as the 1950's there was experimentation with the reception and redistribution of distant television stations. At this point there weren't many Canadian stations, so it was US stations that were being redistributed to Canadians.

While this retransmission was originally an instance of copyright infringement, this activity was eventually legalized and what the CRTC now calls Broadcast Distribution Undertakings (BDU) became a legitimate and regulated industry.

While there were now more channels to choose from, we still needed to strongly regulate the BDUs.

• To bring Canada further towards content freedom, BDUs are actively regulated to ensure that their influence over the choice and placement of channels didn't negatively impact the rights of Canadians.

As one small but critically important example, local Canadian stations within a geographic region must exist in the basic cable package and must be conveniently located within the channel lineup (with Analog BDUs that was channel 13 and below).

An additional aspect of content freedom is for content to be available on "reception" (access) devices chosen by the audiences.   Unfortunately the BDU industry was allowed by the CRTC to take a major step backwards with the digital transition.  With analog cable there were vendor-neutral standards used to communicate channels, allowing audiences to buy televisions of their favorite brand and they could receive analog cable channels.  The CRTC mismanaged the digital transition in many ways, and one was they allowed the BDUs to move from that vendor neutrality to a system where only specific technology brands -- often only supplied by the BDU -- can be used to receive digital BDU retransmissions. This is an error I hope the Canadian government will quickly correct to benefit those still using BDU services.

There are also growing concerns about media concentration, with BDUs owning most of the Canadian television stations (as well as other media).  Whether we will advance along the spectrum of Canadian content freedom, or retreat towards more centralized control, is a matter of active public policy debate. This debate, rather than narrow and ephemeral funding issues, should be at the heart of the Canadian Content in a digital world consultations.

---

From the freedom end of the spectrum

Lets look at this line from the other end for a bit.

• Imagine a utility which offered audiences a library of all audio and video content ever recorded, easily searchable to quickly find anything someone would want, and that was accessible at any time, location, and on any reception device of the audience's choosing.  The creators of this content are all compensated appropriately for their creativity through a variety of mechanisms that ensure that the means to pay is never a barrier to access, and there is no longer any incentive to infringe copyright as there is no possibility that infringement could be easier than accessing the content library.

Services like Netflix and Google (YouTube, Google Play Movies and TV, etc) are by far not this utopia. They are, however, much closer to this end of the spectrum than they are to the fully programmed end of the spectrum.

• Netflix offers subscribers, for a reasonable fixed monthly fee, access to any content in its catalog to view at a time of the audiences choosing.  There are limits on what devices can be used, but it is far less restrictive than nearly any other (legal) service which offers access to content still under copyright. For content which Netflix funds, or where the copyright holder allows, it is entered into the catalog on release date.

While Netflix does not program the content (meaning, doesn't decide what content and at what time it is communicated to audiences), and thus broadcast-style regulation is entirely inappropriate for a service that has little in common with a broadcaster, there is still a need to apply regulation.

Netflix has choices it makes about what content is available in its catalog, and for how long. This is often a complex negotiation with content creators (for the production of new content) or copyright holders (for the licensing of existing content).  Sometimes (some suggest most often) it is the creators and copyright holders which are denying licensing to Netflix for some reason, and sometimes it is Netflix deciding to not bother to attempt to license a specific title. In any case, these negotiations should be monitored by governments.  Parties which are through their actions reducing Canadian's ability to access content through content catalog services should be regulated.

One problem area is exclusive regional licensing.  Content is licensed exclusively for a region, and then only offered through the distribution channels controlled by that licensee.  One of the problem cases can be seen when a broadcaster or BDU licenses content and then denies access to that content other than through a broadcaster (specifically, not offering via any legal content library service similar to Netflix, as well as blocking Netflix from being able to license).

The broadcasting industry and the content library services are different markets, and trying to force audiences back to broadcasting (backwards along the content freedom spectrum) is an inappropriate abuse of exclusive licenses.  Like a BDU denying access to a local channel, or a broadcaster denying access to Canadian content through their channel, other company policies which restrict Canadians access to the content of their choice should not be tolerated.

An important thing to note is that while Netflix is no utopia, I suspect adequate monitoring would reveal than any lack of Canadian content accessible through content libraries is more likely to be the anti-competitive efforts of Canadian broadcasters and BDUs than it is any choice on the part of content library services like Netflix.  Even when it comes to the Netflix catalog it is the actions of Canadian broadcasters and BDUs that require the regulation.

• A few step away from freedom are the second-run content catalog services run by Canadian BDUs such as CraveTV and Shomi.  The catalog is smaller than Netflix, the service is available on far fewer devices, and is second-run in that content is first made available via other media (such as programmed broadcast television) before entering the catalog. (See: CraveTV not competitive with Netflix, or even DVD's)

While second-run streaming services have an important place in the market, just as second-run movie theaters do, there is a conflict of interest when these services are run by broadcasters or BDUs. Granting access to older episodes of series, but denying access to new episodes, appears to be an attempt to drive people back to cable to watch the newer episodes.  When a BDU has an exclusive license to first-run content in Canada, they have that disincentive to actually offering access to the content through their own streaming service.

Unfortunately, the reality is that this business practice ends up driving people to copyright infringement which exists in the same space as lawful content catalogs, not to broadcasters or BDUs which represent a quite different market.

Wwhen it comes to issues like copyright, the broadcasters and BDUs try to (ab)use the content industry as pawns in their desire to stop people from moving closer to the content freedom end of the spectrum I describe.  It has become clear to me that BDUs have a stronger preference for  Canadians to infringe a creators copyright than for Canadians to learn about legal alternatives to the broadcaster or BDU distribution platforms.

With the vertical integration and media concentration we see in Canada there is a strong need for the government to be monitoring and regulating the broadcasters and BDUs to ensure that they aren't able to unduly influence what Canadians are able to access.

• Further steps away from freedom are the steaming services available from Canadian broadcasters.   These services offer a tiny catalog of content where episodes of series are only available a week or two, but never entire seasons available for audiences to watch at their own pace. These services are most often available on even fewer devices than CraveTV.

In the context of technological progress

I hope the idea of this spectrum is clear, and is a good starting point for comparing the growing variety of content distribution mechanisms available to Canadians.  While we can have an important debate about the type of regulation that is needed for various content catalog services, it should be obvious that content catalog services have very little in common with broadcasting, and that blindly applying broadcast-style regulation would be entirely inappropriate (and counter-productive).

It should also be obvious that Canadian content creators benefit when they are able to meet up on the platforms chosen by audiences, and that audiences are moving away from centralized control to content freedom.  Creators who are enabled to move with audiences by having their content unbundled from any content distribution platform will benefit the most.

We should note that there has been a progression over the decades from limitations in technology that kept us closer to the centralized-control end of the spectrum to more and more content freedom. Anyone who is thinking towards the future should be thinking about technologies that grant audiences more freedom, not looking backwards to technologies, business models, or government policies that restrict content freedom.

Greatest barrier to moving closer to Canadian Content freedom

The greatest barrier to moving closer to Canadian Content freedom, where greater freedom would have a positive impact for both content creators and Canadian audiences, can be seen in the tweet.

"If we want CDN shows on *all* our screens"

The notion is that who provided licensing fees, or who the copyright holder of Canadian content is, should be tied to which screens the content is allowed to be viewed on.  This is a concept which Canada must quickly reject, especially for any content that receives any type of public subsidy.  Once video is released it should equally be accessible on any screen, and distribution platform dependencies should be disallowed.

This is a concern I have had for a very long time.  It is a notion that only benefits those specialized companies that exist in the post-convergence overlap between the telecommunications and BDU sector.  For these companies, cultural content only exists to benefit their special economic interests. In their mind content and their proprietary content delivery platforms are a bundle, and some in the sector have offensively said that a specific show no different from a specific Happy Meal toy. 

This is exactly the type of inappropriate control over culture that required Canadian content regulations to exist. Canadian content regulation is needed because specific shows have connection to us as people in ways that are entirely different than a "Happy Meal toy".  These stories form part of who we are as individuals, as communities, and as a country.

A world where Canadian creators are mere employees or in some other subservient role to a specific content distribution platform is not one that can offer any respect for Canadian creators, Canadian audiences, or Canadian culture.

Unfortunately far too many creators have a Stockholm syndrome relationship with broadcasters or BDUs, agreeing to and/or promoting ideas which are contrary to their own best interests.  This is a serous problem that will require government intervention to protect the cultural sector -- sometimes from individuals alleging to represent the interests of the cultural sector.

What does "radio" and "television" mean to you?

I was invited by eMail to join CBC's InCanada Panel, which included a series of questions. They asked about radio and television networks and my viewing/listening/reading habits.

I didn't know what to say as they didn't define the terms as clearly as I think they need to in order to get the information they need.

For instance, when asked about television I gave an estimate of video I watch on a television screen. Later questions spoke about viewing on set-top boxes, but included that as Internet which suggested the estimates I gave were wrong.

A few months ago we dropped Cable TV, with most of my viewing already being via DVD's, Netflix, or other online content. I purchased an ATSC tuner and aerial for a television we have upstairs, and other than the watching I did when I set it up I haven't watched it. That tuner sits there for that case when we might want to be watching something on a "live" broadcast (some emergency or event like we saw in Sept 11, 2001), but I doubt it will get much use.


Do I watch shows that are CBC content? The current show Rina and I are both watching together is Being Erica, which is CBC content we are watching via NetFlix. While we know the show is highly unlikely to get new episodes, we are thoroughly enjoying watching the already produced episodes. Is that something CBC was asking in their survey, or is that "internet" content that they don't consider to be related to their content?

I am a regular listener to the CBC shows The House and Spark, both automatically downloading the MP3 files via an RSS feed. I don't listen to either as over-the-air radio, but they are both "radio shows" aren't they? Or is that also not what CBC was talking about, and thus I should not have included those hours as radio listening?


If you exclude the content I access via the Internet or via non-broadcast means such as DVD's, I don't really watch TV or listen to Radio much at all. There is a radio in the car when I am riding with someone, but nearly all my transportation is via bus/train where I am listening to my own audio/video I've downloaded to my phone and/or tablet. On those infrequent occasions I'm in someone elses car (And I include Rina's car here), I am not the one who chooses the channel so is it even "my" listening at all?

Who needs Fox North when we already have CBC's The Current?

The radio was on this morning with CBC's The Current. The topic was municipalities and the licensing of massage parlours that range up to places that offer body rubs. In the wake of some narrow aspects of prostitution laws being struck down by an Ontario court, it is now in vogue to have talk shows where people express their views on this topic. There was the ludicrous suggestion by some social conservatives that if a municipality made any money from licensing activities of a sexual nature that they are essentially pimps. CBC's The Current decided to expand on and do a show promoting this ludicrous suggestion. Normally a journalist will find a variety of people with a variety of views, and allow them to have a discussion. Unfortunately in this case Anna Maria Tremonti decided to impose her own morality onto every question, essentially having her and her social conservative guest from out east gang up on a Guelph city councillor. I didn't even hear the Guelph councillor express her moral views on the subject, only the practicality of issues that a municipality should be dealing with. She took the high road, when Anna Maria and her other guest took the low road. I found the whole show embarrassing. I find it funny that some social conservatives claim that the CBC is not centrist but left-wing. I think there is a wide variety of political views expressed by persons on the CBC, and I think Anna Maria demonstrated where she stands on this particular issue. So, where do I stand on this question? Each of us has professions we don't agree with, or sometimes even find morally offensive. I am a make love not war person living in a make war not love country. North Americans are very forgiving and even promoting of violence, but can't handle sexuality. Violent professions from the military to some sports are promoted as things we are supposed to be proud of, while anything even remotely sexual is something we are told we should be ashamed of. I don't think that way. I believe that sexuality between consenting adults is a wonderful thing. I am always very clear about the words "consenting", and the related word "adults" given I don't think younger people are mature enough to be considered consenting. In my mind legalising and licensing sex related professions is the only reasonable way forward. It not only legalises activities which should never have been illegal in the first place, but it also allows for necessary monitoring of these professions to verify the "consenting" aspect. The more these things are driven underground, the more dangerous these professions become, and the more instances we will see of non-consensual activities. While I will express my views, I do not try to impose my views on others. It would be nice if other people did the same thing, and stopped attacking anyone who has a different set of professions they disagree with or trying to create laws which impose their own particular morality on society.

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Update on Oct 14. Show titled Municipal Pimping is posted to the CBC site. Vicki Beard was the City Councillor in Guelph, Ontario. Gloria McCluskey was the City Councillor in Halifax.