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.)

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.

Re: Bell Media and BBC Worldwide North America Sign Exclusive Multi-Platform Deal for DOCTOR WHO

The following was sent to the contacts listed on the Bell Media press release from 2016.

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Ever since this deal it has been harder to legally stream Doctor Who in Canada. While space.ca previously offered episodes, it is now locked down and requires login via a legacy cable package. While Crave is mentioned for previous seasons after they were taken off of Netflix, a Crave subscription (even the add-on package) doesn't enable legal streaming of new episodes.

Bell finally folded HBO Canada into Crave to make that content available for legal streaming, and clearly it needs to do the same with SPACE rather than driving people away from legal streaming options.


I have been paying for the full seasons of Doctor Who through Google Play. Episodes are often late and in the case of the latest episode from New Years it didn't show up at all. I found the Google Play option on my own, and Space has been unwilling to even disclose this legal streaming option when asked multiple times. All legal options for Canadians should be advertised clearly on the space.ca website!


With the exclusive license comes a responsibility for Bell to protect Doctor Who copyright in Canada. You have been doing a horrible job and have been inducing infringement.


See also: https://mcormond.blogspot.com/2016/10/bell-has-no-class.html

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.

Intervention in opposition of the Bell Coalition's "Fairplay" site blocking proposal.

I have made an intervention to the CRTC in opposition to FairPlay Canada's so-called "application to disable on-line access to piracy sites".

Summary

While is is appropriate for the courts to be able to require Internet Service Providers to block access to specific “sites”, it is inappropriate for vertically integrated media distributors to be allowed to do this without a court order. These media distributors are in a conflict of interest when it comes to providing lawful online distribution of media, and their business models are known to induce copyright infringement.

Given this conflict we should not only be demanding that court oversight exist prior to blocking, and not as an expensive appeal process, but that government and regulators need to reduce rather than increase the influence of broadcasters and BDUs over Canada’s digital communications networks.

Read more:

• Tweet informing Fairplay of my intervention, as requested by the CRTC. Re-tweet if you agree with my submission.
• Google Doc (which allows users to download alternate formats, including PDF)
• CRTC website (which includes the PDF)

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.

OSI model layered approach to CRTC policy required to get quality of service

Re: Telecom Notice of Consultation CRTC 2017-49: Review of the competitor quality of service regime

While the consultation is in the form of a series of questions, my intervention requires context.

While necessary at this time, I consider the "competitor quality of service regime" to be a transition policy to deal with problems caused by the way we managed convergence in Canada.  My recent submission to the Canadian content in a digital world consultations was focused on convergence policy.

If we are to solve the underlying problems on a more permanent basis we need to adopt policy that mirrors the OSI model layered approach of the underlying digital communications technology. The digital transition involved moving from purpose-built networks to a layered approach, and our regulations should have adapted from regulating as if the underlying technology were still purpose-built.

In short, this would mean:

• Municipal layers 1 and 2 (or rather, what is now often called layer 2.5) should be treated as a utility and be owned and managed by different levels of government as is the case for other utilities.  While I will use the term "last mile" as a short-form, this is a municipal network that shouldn't require private sector entities to make multiple connections to the same municipality.
• All services built "over the top" on layers 3 and above should exist in a competitive private sector marketplace.

The problem with trying to discuss a "competitor quality of service regime" is that incumbent last mile providers are providing layers 1-2.5  and claiming their own "over the top" (layer 3+) services should be regulated differently than other companies "over the top" (layer 3+) services.   They have re-defined the concept of "over the top" in an anti-competitive manner to mean services of competitors, rather than adopting neutral technology-driven language.

I made an intervention in front of the CRTC on 2009-12-09 to make these points.  I live and work in Ottawa, and can be available to discuss this with commissioners and staff at the CRTC in a formal or informal setting.

Q1. How has the current Q of S regime performed in fostering competition?

While the current regime might have disallowed private-sector last-mile providers from completely wiping out businesses built on layers 3+, I do not believe it has fostered competition.

Q2. Are market forces sufficient to ensure a high level of service or are Q of S regulatory measures required?

Market forces cannot function unless the market is correctly defined.

When a new retailer opens it does not have to get "permission" from a competing retailer for its customers to use the roads required to get to the retailer.  If Walmart claimed ownership of all the roads in a specific town we would never suggest that "market forces" were sufficient for any public policy goal.

Q3. If a competitor Q of S regime is required, what should its objectives be?

We should be trying to migrate from the legacy analog-era regulatory regimes to a digital layered approach.  The objectives of the Q of S regime should be to seek to achieve in the current vertically integrated marketplace conditions as close to those that would be possible if we had structural separation.

Customers of different layer 3+ services should not be getting different treatment from layer 1-2.5 providers.    As long as last mile providers are allowed to also provide layer 3+ services, strongly enforced regulations will be required.

Q4. If other regulatory measures are required, what should they include?

The problems I am identifying are not specific to the Q of S regime, but all areas of CRTC policy (Broadcast and Telecom Acts) where the lack of structural separation has an ongoing impact.

My intervention in front of the CRTC in 2009 was in the context of local television, as I see what is traditionally called "Cable Television" in the analog era to be yet another layer 3+ service in the digital era.  While many more people have "cut the chord" (transitioning from analog-era video services) than 2009, my intervention still applies to the current situation.

Q5-Q8:

These questions relate to the rate rebate plan (RRP). As long as last mile providers are allowed to also sell layer 3+ services, financial as well as other incentives to provide good services to all layer 3+ companies is required.  This will require both carrot and stick, as vertically integrated providers will always want to privileged their own branded services.

Q9. What criteria should be used to select the types of services, if any, that should be included in the competitor Q of S regime?

All layer 3+ services should be included in the Q of S regime.

We need to transition from thinking of IPv4 and IPv6 with publicly routed addresses as being "special" compared to other protocols or private network addressing.

There is no legitimate reason why only Bell should be allowed to provide a "Fibe TV" style service. Other BDUs should be able to form to provide those services and directly compete with the services of any existing layer 1-2.5 provider.  We need to break the current oligopoly which, among other things, includes inappropriate policy in Bill C-11 from 2002 which defined  “new media retransmitter” in such a way as to disallow layer 3+ companies which weren't also last mile layer 1-2.5 providers.

Q10. What specific services should be subject to the regime?

What is called “Wholesale Network Access” should be the bare minimum immediately, but this should quickly expand to all layer3+ services.

While not explicitly part of this consultation, I also support CNOC's proposal to apply the Wholesale Network Access regime to fiber to the premises.  We have experienced this problem within our family where my parents-in-law moved into a condo where the condo corporation had already made a deal with a specific vertically integrated provider.  My father-in-law was unable to move his existing Internet service (with Teksavvy) to his new home, and there is no competition within that building.

Q11. Should the competitor Q of S regime be expanded to include cable carriers, wireless carriers, small ILECs, and Northwestel? If so, should the competitor Q of S regime apply to all such carriers or should there be a threshold based on the size of the company and/or other factors?

All private sector last mile wired or wireless layer 1-2.5 providers should be under Q of S.

Exceptions can be negotiated for specific public sector entities, such as very small municipalities who might not have the resources to provide quality of service for other than a bare minimum of communications services.

Northwestel is owned by Bell Canada, and need not be listed separately from other private sector entities.  Regional governments should have an incentive to own their own networks, and private sector providers being under more rigorous regulation should be one of those incentives.

Q12. Does the complaint-based system continue to be the best means of monitoring Q of S for small ILECs?

Most customers of communications services are not aware of who they should complain to.  Then a last-mile provider provides poor service it is the layer 3+ provider that often gets blamed.  The onus should not be on communications customers to understand these different layers, but for the regulator to work closely with layer 3+ providers to adequately regulate layer 1-2.5 providers.

Q13-17:

Further questions are at a level of detail that goes beyond the focus of this intervention, so I will leave unanswered.

Defend #DigiCanCon through Modern Management of Communications Convergence

The Canadian content in a digital world consultations are underway, and the Minister of Canadian Heritage has indicated that everything is on the table.

Unfortunately there is a large group of people who have been dominating the consultation with what I would consider to be minor details of an issue that is far broader than they seem to be aware of.  Their focus has been sources of funding for creating Canadian content -- both on the variety of government programs as well as the ongoing claim that stronger copyright aimed at audiences will somehow better protect the economic interest of creators.  I believe discussing mandating Netflix become a contributor to the Canadian Media Fund is as helpful as rearranging deck chairs on the Titanic.

These consultation participants appear to have missed the elephant in the room, which also represents the greatest threat to the interests of creators,  which is the concentration of vertically integrated communications companies.  I've been writing for years how these companies see creators as pawns, and they are quite willing to sacrifice the interests of creators in order to advance their conflicting interests.

I strongly believe the origins of this problem comes down to a failure in how the Canadian government managed the convergence of communications technology.

Communications Convergence

I have been excited about convergence since I first heard of the idea in the early 1990's.  The idea was that as communications technology moved digital we would be able to move to a neutral communications infrastructure rather than the purpose built analog networks of the past.

It always made me feel uncomfortable that we had one wire into our homes for two-way voice communication (telephone) and a separate wire for one-way video communication (cable TV).  I considered this an unfortunate side-effect of the technology of the day, and through convergence we would be able to build a communications system that was much more like our road system.  We did not build special medical roads you needed to use to get to hospitals separate from political roads you would need to get to city hall, which would also be separate from food roads used to get to get your groceries.  We had one road system that was managed by individuals (their driveways) and appropriate levels of government (municipal, provincial and federal) that was agnostic to the specific source or destination.  We did not allow companies in the food industry to dictate road policy which would impact our ability (slower lanes, differentiated pricing, etc) to get to a hospital (or only the food industries preferred brand), or allow any specific industry to influence other industries that were built on the neutral road infrastructure.

One or two way voice or other audio communication, one or two way audio/video communication, queued text and other data communication (email/etc), and other services would all run on top of this neutral network. We would no longer need to care about what type of traffic was being routed -- only how much of it for capacity reasons as we do for our road system.

With the connection into our homes being neutral I also assumed we would finally end the communications exception.  All the other connections into our homes (water, sewer, natural gas, electricity) are managed by the public sector (most often distribution public sector, but contents private sector), while the purpose-built telephone and cable TV connections were managed by companies that thought of themselves as private sector.  While the companies representing these communications exceptions exist because of government largess (exceptions to property law for right-of way access, spectrum monopolies, considerable grants, and even specialized exceptions to copyright), they managed these networks for their own private gain often at the expense of wider public policy goals, the interests of other businesses in other sectors, and the interests of Canadian citizens.

Failed Government Policy

All the talk in the 90's about the "information superhighway" lulled me into a false confidence that the government saw a similar vision of managing our communications infrastructure as we do the road system. What emerged in Canada was the opposite in many ways.

Companies who previously offered telephone services now offer BDU services, and have purchased broadcasters, publishers and other media producers.  The same happened with BDU companies which now offer telephone services and own media producers.  While this transition was happening, the silos that exist within the CRTC made it incapable of properly regulating a "phone" company offering cable+data services or a "cable" company offering phone+data services. The CRTC had one part that dealt with broadcast companies and a different part that dealt with telecommunications companies, even though outside the agency in the real world these had converged.  Regulation needed to be for activities, not companies.

These new vertically integrated companies would leverage their claimed "ownership" of the underlying network to impose specific policies on the network.  These companies would privilege their brands of services over all competitors, and seek to block disruptive innovation.  I have always felt that phone and BDU companies are in a conflict of interest with providing proper Internet services and have always purchased my Internet from competitors to the vertically integrated telecom/BDU companies (as much as they are allowed to exist in Canada).  To do this the government still forces me to use the "last mile" into my home provided by a traditional "phone" or "cable" company, rather than being able to purchase neutral services over a municipally owned connection into my home.

To make matters worse, the CRTC was allowed to create and administrate funding programs.  While companies using public right-of-way for wired and public spectrum for wireless should always have been taxed for that privilege, the CRTC was the wrong agency to then be distributing these funds.  This created the environment for regulatory capture where the CRTC saw those it was funding as its stakeholders, rather than the public being stakeholders where some of those it was funding are the very entities the CRTC needs to more strongly be regulating.

Many creators have fallen into what can only be described as a form of Stockholm Syndrome, believing that what is good for the incumbent broadcasters and their owners is good for them.  I believe this is the source of the suggestion that the mandate of the CRTC should be further expanded to include taxing non-broadcast entities like Netflix to feed money into the Canadian Media Fund. While this expansion would help the owners of the incumbent broadcasters in their anti-competitive efforts to block non-vertically integrated companies from flourishing in Canada, it is to the detriment of independent creators whose ability to create is further manipulated by incumbent broadcasters/BDUs. Better for creators would be stable and accountable funding directly from government that is targeted at creators (and not intermediaries), and the removal of the conflict of interest created when the CRTC is involved in any funding programs.

We now have an open debate about whether we should be abolishing or reforming the CRTC. Unfortunately, without common ground on what should replace the CRTC I worry that a regulatory vacuum will be created which will make the existing policy failings leading to excessive special economic interest control over Canada's communications infrastructure even worse.

(See CRTC transcript from 2009 when I was a witness on what I consider to be the same same area of policy. At that time they called it the "value for signal" consultation.)

Consultation questions

Whether I am reading the 3 questions in the "have your say" section of the consultation website, or reading the "pillars of the approach" from the consultation paper, I feel much is dependent on a more modern management of communications convergence.  While the Canadian Media Concentration Research (CMCR) project discusses some of the impacts of media concentration in Canada, I believe policy makers should at least in the short term focus closely at some of the root causes rather than being overly distracted by the effects.

I disagree with those who suggest media concentration is no longer relevant in the age of the Internet, a perspective that appears to presume convergence happened the way I believed it would in the early 1990's rather than how it actually occurred in Canada.  We need to recognize this open competitive marketplace that is in the control of individual citizens as a goal to achieve, not a reflection of the current state of affairs.

Media concentration is not an effect of a free market, but an effect of failed government policy which has continuously manipulated the market to favor incumbents.  These failed policies must be corrected in order to support creators, respect citizens, create cultural systems where creators and citizens thrive, and promote a strong democracy.

Policy ideas

1. Much of the required modernization of policy is outside of the jurisdiction of Heritage Canada.  This is an area of policy that requires coordination between multiple departments and multiple levels of government.  Having Heritage recognize the benefits of a modern management of communications convergence is an important first step as Heritage policy has often been at odds with this beneficial modernization.
2. As single entities can carry out some, all, or a combination of communications activities, activities should be taxed and regulated rather than the entities as a whole.  When an entity is carrying out activities which are "broadcasting" then that activity should be regulated as broadcasting. When an entity is carrying out activities which are more like offering membership to a library of multimedia content, then that activity should be regulated as such.  When an entity is carrying out "retransmission" that activity should be regulated as such.  When an entity is carrying out two-way voice communication that interfaces with the PSTN as managed through the ITU, then that activity should be regulated as such.  (These are only examples of the higher profile activities, and should not be thought of as exhaustive)
3. For clarity, Netflix offers a service which is a paid membership to a library of multimedia content. Netflix continues to have more in common with the DVD rental system it originated as than broadcasting, and its activities should be taxed and regulated for what it actually does and not for what people (often misinformed by special interests representing BDUs) misunderstand them to be. Claiming services like Netflix are broadcasting "because video is put on a screen" is like claiming that Netflix is a video game which also puts video on the screen. Given many people use game consoles to watch Netflix, is this further proof that Netflix is a video game and should be regulated/taxed like one?
4. The definition of "broadcasting" should be clarified to include programmed streams of audio or video (where the broadcaster makes the content choices and pushes the same content stream to multiple recipients), but to not include private or public access to audio and/or video libraries (where the audience makes the content choices, and pulls contents from the library).  Whether this communication happens "by radio waves or other means of telecommunication" should not be the determining factor if an activity is labeled as broadcasting or not given the underlying digital network is "by radio waves or other means of telecommunication".
5. The Canadian Content quota systems should be applied in direct proportion to the strength of the gatekeeper function of the activity being regulated. An activity which programs what is seen by Canadians, and/or at what time, especially on a technology with limited or monopolized spectrum, would be highly regulated. An activity which allows Canadians to make their own content programming choices would be minimally regulated (if at all). (See also DigiCanCon idea: Return CanCon policy to being centered on Canadian audiences)
6. Government regulations, including any Canadian Content quota system should never be abused to impose culture on Canadians. Regulations should be used to protect the right of individual Canadian citizens to make their own choices about what products of the cultural industries they wish to access, specifically regulating intermediaries that limit that right. Recognize that citizen choice protects creator rights (DigiCanCon idea).
7. Canadian Content quota regulations should not be narrowly applied only to specific types of activities (broadcasting), but any type of content distribution which is seen to have excessive influence over what content Canadians can access.  In some cases, the placement of promotional material by retailers like Walmart should be considered for Canadian Content quotas, or the production of plays in a theater.  As the regulation would no longer be specific to entities regulated by the CRTC, the Canadian Content quota system should be moved from the CRTC to an appropriate regulatory body or branch of Canadian Heritage. (Note: The quota system may be abolished entirely if untested experimental non-free trade policy such as seen within the Trans-Pacific Partnership is ratified in Canada).
8. Broadcast standards (whether government or self-enforced) should only be applied to the activity of broadcasting where content is programmed and pushed to audiences, and not to activities where audiences make their own programming choices.
9. While non-broadcast activities should not be expected to (or possibly even allowed to) edit or filter content (such as for adult themes, profanity, nudity, violence, or sex), these activities should be mandated to use robust content descriptors.  The MPAA rating system should not be considered sufficient (G, PG, 14A, 18A, R, Adult), but require a system which is more specific such as being developed for pay television (indicates "Adult Content", "Adult Language", "Graphic Language" as separate descriptors). Some regulation may be required of those offering hardware/software to access these services to expose the ratings as well as offer client-side filtering controlled by individual audiences. Clear labeling of technology that doesn't offer robust parental controls should be required.
10. Whatever the future of the CRTC, we need to remove any funding programs.  This should not be done by canceling the Canadian Media Fund but by replacing with an accountable and transparent fund administrated by Heritage Canada rather than the CRTC. The sources of funding should be from the use of public infrastructure (more on spectrum and right-of-way taxation later) and general revenue.
11. The target of media funds intended to support creativity should be to content creators, and not intermediaries or non-creator copyright holding entities. Public contributions should be conditional on the wide public access of the results, such that content that is intended to be tied to a specific distribution brand would be eligible for less public funding than content that will be distribution brand neutral. (DigiCanCon idea: Ensure results of government subsidized creativity is available to all Canadians)
12. The "broadcast" and content creation aspects of the CBC should be separated. Public subsidies to the broadcasting arm should be focused on those geographic areas where OTA broadcasting is still a critically important way to reach Canadians.  In this CBC radio is far more important than CBC television.  Content created by the CBC such as scripted programming should be neutral in how it is distributed, and specific distribution brands should not be allowed to be favored. 
13. If distribution of content is to be taxed it should be done fairly and consistently. It must not be based on people incorrectly believing any specific distribution is like broadcast TV. 
14. If a private sector company is granted right-of-way to put wires above and below public and private property, they should be expected to compensate the public for that privilege in the form of specialized taxes and licensing fees.  The same should be true of over-the-air spectrum. Currently spectrum licensing (IE: government granting and protecting a monopoly on the use of specific radio frequencies) is inappropriately hidden in general revenue, rather than being earmarked for communications related funding programs including infrastructure and media funds.  Payments should not be one-time, but ongoing as the public resource (right-of-way or spectrum) is used. Spectrum which has been been granted a monopoly and unused should be taxed at a higher rate than spectrum actively used to provide services to the public. 
15. Private sector users of right-of-way or spectrum should be strongly regulated, including mandating competitive third party access to service agnostic (neutral) networks.  The underlying digital networks should be presumed to be under common carriage policy which requires they offer services to the public without discrimination.
16. Canada should remove monopolies from more spectrum.  So-called "unlicensed" spectrum which is available to be used by any vendor as long as they follow specific technical regulatory requirements provides far more opportunity for innovation.  The idea that spectrum needs to be granted as a monopoly to be useful is outdated as modern technology allows for far more efficient use of "unlicensed" spectrum than monopolized spectrum.  WiFi is one well known example, but we could see far more, faster, better wireless communications services if spectrum was not being monopolized.
17. All parts of government must recognize that the narrow policy areas they have traditionally been involved in (Heritage Canada's preoccupation with commercially created cultural works) is only a small part of what the network is used for.  It is simply wrong to claim that nobody would use the Internet if not for movies, TV and music. This is no more true than a claim it is only a replacement for letters and postcards (email, etc), only for electronic commerce, only for academic research, only for medical information, only for interacting with government services, or an infinite number of other uses a neutral network can provide.  No one sector should be allowed to manipulate the underlying network to privilege their private interests, and no government department should regulate and/or tax the network as if it were only used for the narrow purposes that fall within the mandate of that department.
18. Government manipulations of the ICT sectors allegedly for the benefit of the content industry, such as legal protection for encrypted media and non-owner locks on technology (so-called "technological measures"), have a profound impact on other aspects of our society.  As one small example, non-owner locks on devices make those devices insecure from the perspective of their owners and allows the third party manufacturers who retain keys to remotely control devices. This has a direct implication for policy proposals such as online voting (DigiCanCon idea)
19. As the Internet is used across all sectors, and has impacted all sectors, it must not be taxed to cross-subsidize sectors impacted by it.  This is counterproductive policy that will either lead to unfairness (only a tiny subset impacted receiving compensation) or would make digital services too expensive for any Canadians to afford.  
20. Much of the content industry owes its success, and in many cases its very existence, to advances in information and communications technology (ICT).  The ICT industry has never suggested the content industry be taxed or levied in order to compensate the ICT industry.  This is as appropriate a proposal as suggesting that all or parts of the ICT sector should be taxed or levied to subsidize the content industry. While I believe the content industry has benefit more from advances in ICT than ICT has benefit from the content industry, I believe this question is counter-productive as it creates animosity between sectors which should be collaborating for the benefit of all citizens.
21. For clarity, while private sector entities using right-of-way or spectrum should be taxed for that privilege, and some of that money might be allocated to media funds, entities providing services on top of that network should not be taxed to contribute to those funds.  We should not be taxing companies offering Internet routing services.  While the incumbent vertically integrated companies have been deliberately blurring the lines between what is the converged neutral network and "over the top" services (including competitive ISP services), government regulation and taxation needs to be more nuanced in order to promote a competitive marketplace which includes fair taxation policy. (No ISP or Netflix tax.)
22. If a "Netflix" tax is created (and it should not), it must be conditional on results being available through Netflix. (DigiCanCon idea)
23. The government must do proper analysis on the blank media levy (Canadian Private Copying regime) before contemplating any levy related to digital distribution.  While some claim these levy systems increase revenues to creators, all evidence I have seen suggests this reduces revenues to creators. This question has not been properly studied by the Canadian government, and we need to be making evidence based decision making.
24. Canada should recognize the benefits of what convergence could have brought us, and create regulations and funding programs to help modernize our communications infrastructure in that direction.  This should include tax and regulatory policy to minimize control over the underlying network infrastructure by favoring independent services and reducing harmful influence by specific sectors (such as traditional BDU or phone service providers).
    
25. Laws should be clarified such that a municipality contemplating providing communications infrastructure cannot be claimed to be in competition with private sector companies and disallowed, but actively encouraged.  A model would be how electricity is managed in Ontario where generation is private sector but distribution is public sector. Municipalities should be encouraged to build communications infrastructure, including by receiving infrastructure money and not being taxed as private sector entities would. All public sector entities should be actively discouraged (legislated against?) providing services on top (Internet transit, audio and/or video services other than of government business such as council meetings, etc). The network should be neutral, allowing any entity that follows specific regulatory requirements to provide over the top services via this network.  While this public sector provision of the underlying network wouldn't be taxed as the private sector would be, it should still be regulated to ensure it remains service agnostic, neutral, and follow common carriage policies.
26. All levels of government should recognize that all digital services are "over the top" of the underlying digital network. Current policy inappropriately privileges specific products from vertically integrated brands and treats services from competing brands as "over the top". The technological differences between Netflix and Bell's IPTV (FibeTV) service are minor and primarily relate to network addressing and routing.  The private network routed services of the vertically integrated companies should be regulated the same as third party services operating over digital networks.  (Note: While Netflix offers access to a media library, and Bell's FibeTV offers both retransmission and media library features, there are aspects of Bell's service such as its network PVR which needs to be given special attention.  I'm also not convinced Bell's access to media libraries are being appropriately regulated.)
27. Canada needs to recognize that the core of the "Network Neutrality", as well as the current differential pricing debate in front of the CRTC, are effects of failed management of convergence and vertical integration.  If we had truly competitive service providers which weren't able to manipulate one service area based on the special interests of another service area we wouldn't have these controversies. These are market failures that could be solved by proper application of competition policy and other public policy which favor service agnostic networks that are not tied to "over the top" services.
28. Differentiated pricing should only be allowed if there is open competitive access to the underlying network.  A service provider should be able to purchase their own connectivity to the neutral municipal network and not have provider imposed bandwidth charges applied to either themselves or the customers of that service provider.  Under Canada's current vertically integrated network, differential pricing is inappropriate because the vertically integrated providers can leverage one service to manipulate markets for other competitive services.
29. Bill C-11 from the 37th Parliament, 2nd Session should be repealed or fairly applied.  This was a backward-facing anti-competitive measure abused to protect incumbent BDU's from competition, and is based on a misunderstanding of the technology.  The digital transition was a transition from analog purpose-built communications infrastructure to services being built on top of a neutral data service. Rogers digital TV, Bell's Fibe TV, and all the digital BDU services all fall under "new media retransmitter". Canada should either enable open competition for these services, or declare as copyright infringement what the incumbents are doing.  (Note: Special attention should be given to Bells network PVR function and whether it should be offered the retransmission exception to Copyright.)
30. Canada's copyright act should be amended to clarify that a licensee of copyrighted content is a contributory infringer when they hide legal alternatives to their own branded services from audiences. While Bell is the worst Canadian example of a contributory infringer, this problem is not specific to them.  As an incentive for copyright holders to pursue all business and legal avenues against these contributory infringers, Canada's Fair Dealings should clarify that access by private citizens of these works for non-commercial purposes through unauthorized sources is not an infringement when authorized sources are unavailable or hidden.  This should include disallowing the use of Canada's "notice and notice" system to harass private citizens when the cause of the infringement is a commercial licensee. (DigiCanCon idea: Modernise Copyright law to focus on "low hanguing fruit" of contributory infringers)

Canadian Subsidies to HBO's Game of Thrones #DigiCanCon

Despite Bell Canada's desire for me to not watch Game of Thrones unless I was a cable subscriber or willing to infringe copyright, I completed watching the 2016 season this weekend via Google Play Video and TV.

One part of the closing credits has always peaked my interest, and that was the fact that a few provinces and the Canadian Federal government provided assistance in the form of media funds and/or tax credits.

A quick search returned a related article that discussed some of the basis for additional contributions this year: Season premiere of ‘Game of Thrones’ was very Canadian.

I expect some of the most active participants in the Canadian Content in a Digital World Consultations suggesting they represent the "artist" position will find this offensive as they appear to only want their sector (most often writers and actors) to receive subsidies.  They don't appear to see the value to Canada when our technical talent including visual effects crews contribute, or possibly when the actor happens to be a wolf. Complex cinema and television includes far more than a few writers and actors, with sets and locations often in a variety of countries. I believe it is quite appropriate to recognize and nurture Canadian artistic talent beyond writers and human actors.

Personally I'm proud that Canadians are involved with artists of other citizenship in such an internationally known series like Game of Thrones.  I've not been proud of what I've felt is quite xenophobic ideas expressed during the consultations and in the #DigiCanCon twitter feed, including what appears to be a misplaced dislike for Netflix Canada.

This should be a reminder of the fact that we have a wide variety of funding assistance for creators at all levels of government.  I have been concerned that so much energy is being expended in the DigiCanCon discussions focused on whether one company (Netflix Canada) pays into one fund (Canada Media Fund) managed by what should be an arms-length regulatory body (CRTC). This is the wrong basket to be putting any eggs in considering many believe that the CRTC requires massive reform given how it mismanaged communications convergence. Some believe the CRTC should be abolished entirely. At the very least the conflict of interest created by a regulatory body also trying to be a funding body, falling under regulatory capture, needs to be solved by removing any tax or spending capabilities from the CRTC.

CraveTV: Your devices are not supported. CanCon unavailable to Canadians

After the cast functionality stopped working with CraveTV after a browser upgrade, I tried contacting CraveTV for support.  As I wanted to send detailed browser version information I sent is an an email, and they ignored the email and asked me to phone support.  After spending a considerable amount of time on the phone they created a support ticket.

A week goes by and all I got back was: "We've received an update from our technical support team that CraveTV is not supported on Chromebooks or any device that is running Chrome OS."

After looking at it again the CraveTV FAQ does only list specific version of Windows XP and MacOS to access CraveTV from a computer.  This is consistent with my previous (and confrimed today) experiments where CraveTV didn't work on either Firefox or Chrome on my Ubuntu desktop.  In the case of Firefox it would always say "To watch video, you need an Adobe Flash
Player Update.Please click to download." even if the Flash Player was installed.  With Flash you need to keep it very up-to-date given it is extremely buggy and has many security flaws.  As discussed in my first review of CraveTV, Chrome on the desktop would never display video, but unlike back in April it will now also not Cast.

I don't have any Windows or MacOS computers to verify, but I would be extremely surprised if Cast was working on those platforms.  The bug that I discovered is browser version dependent, not operating system dependent, and the answer from technical support was a cop-out.

At the moment the only way I can get CraveTV to work is on an Android phone casting to a ChromeCast device.  Watching television on the phone would be unusable, so if they break ChromeCast on Android as well then I will need to unsubscribe and "seek alternatives" to access the content that exclusive regional licensing has largely blocked from "lawful" streaming access in Canada.

CraveTV not competitive with Netflix, or even DVD's

In early April I subscribed to CraveTV to evaluate it, and 6 months later I'm less happy with it.

Technical

I wrote in the earlier article how CraveTV worked on few of the devices that I owned, but that at least it would work with my regular Chromebook and the Chromecast.   This didn't last long, as an upgrade of Chrome OS which made cast functionality native to the browser later in June was incompatible with CraveTV.  I would have thought CraveTV would fix their site relatively quickly, but the problem persists.

The next most convenient way to watch CraveTV was to run an HDMI cable across the living room floor to connect the Chromebook with the TV.  I say next most convenient as CraveTV is not at all convenient.  The web interface hasn't improved since my last posting. I still find myself having to do a search for things which are already in my "cravings" in order to choose the right episode to show next, as the interface often doesn't accurately select the next unwatched episode.

This is in obvious contrast with Netflix and Youtube.  Both are from modern Internet-era companies that work hard to ensure their services work on as many devices as possible.  While I like to cast from my Chromebooks, there are apps built into our Samsung Smart-TV which are convenient enough to use for my wife who doesn't like to fiddle around with tech like I do.

The Netflix interface has improved in the last 6 months, with the remote control for the casting feature now a bar on the bottom which allows you to continue to browse the site for other content in that same tab while still able to control the episode currently being viewed on the Chromecast device.  Both Netflix and Youtube have enabled the CEC features of the Chromecast so my Samsung TV's remote control pause button works, meaning I don't even have to touch my Chromebook (and get it out of sleep mode) to control it once I have started an episode.

Netflix's recommendation engine is continuously improving, and I find I'm always being suggested to watch shows I would actually want to watch.  Not surprisingly, it properly sends me to the next unwatched episode and keeps accurate records of my viewing which the site allows me to look through later (and even edit to remove content I don't want to influence the recommendation engine).

Netflix and CraveTV can't really be directly compared as they aren't in the same league.  Netflix is an industry leader, and is used as examples in technical talks all the time.  As a part of the industry working on (much smaller) sites I view presentations such as The Seven (More) Deadly Sins of Microservices which mention the advanced work that companies like Netflix are doing.   I don't think anyone ever expects to be watching a new media technology presentation and hear Bell or one of the companies it owns mentioned.  Bell will always be the smaller company in the smaller market offering less to its clients than larger competitors in larger markets can.

Content

Netflix content is offered as soon as the copyright holders allow it to.  In the case of Netflix original content that is immediate in all markets which is why many of us prefer Netflix original content to third party content.  With third party content you often have region restrictions where content is available in one region but not another.  Canada is often excluded, sometimes by copyright holder who don't see the market as big enough to bother with, and sometimes by one of the "Canadian" BDUs getting exclusive licensing which block Canadian access. These restrictions are something which the CRTC and Competition Bureau should be looking into, but that is a conversation for a different time (IE:  VPNs are a solution, not a problem -- Canadian legislation and regulators should be helping, not hindering).

Because the service is inconvenient I tent to watch a minimum of shows on CraveTV.  One set of TV series not legally available elsewhere in Canada is series based on DC comics such as Arrow, Flash and DC's Legends of Tomorrow.   While these are broadcast in Canada around the same time as they are in the US, streaming is delayed.  US Netflix recently made a deal where these CW shows will be arriving on Netflix eight days after the season finale airs.

In Canada there is an exclusive license with Bell, so the shows are broadcast on Bell's CTV and blocked from Canadian Netflix.  If you wanted to use CraveTV as an alternative to Netflix you are out of luck as the content isn't made available near broadcast time.

CraveTV subscribers were recently sent an email announcing that the previous seasons of Arrow, Flash and DC's Legends of Tomorrow would finally be released on September 9.  This is not surprisingly after the DVD releases:

• DC's Legends of Tomorrow: Season 1 DVD Release Date August 23, 2016
• The Arrow Season 4 DVD release August 30, 2016
• The Flash: Season 2 DVD Release Date September 6, 2016

Not only is it not appropriate to consider CraveTV a competitor to Netflix, the only way it is favorable to DVDs is on price if you watch enough shows.  If all I wanted to watch each year that was blocked from Netflix was these 3 shows then DVDs would be cheaper and far more convenient (works on more devices, etc).  It is only if I watch more shows that the price of CraveTV goes below DVD, but it is still less convenient.

Can CraveTV compete with other Bell provided services?

I am a modern content viewer, and don't enjoy programming delivered to me one episode per week.  I prefer to watch shows a season at a time, and then move to the next show.  I have been watching the DC universe series differently as there are some crossover episodes and I have wanted to watch episodes in an order that makes the crossovers make sense.

These 3 DC universe shows start the next seasons soon, and I will see if I can stomach watching via the broadcaster site given how long it will be before it is available for proper streaming in Canada.  It will require that I binge-watch the previous season that is only being released this month.

• Flash: Season Premiere: Tuesday, October 4 at 8E on CTV
• Arrow Season Premiere: Wednesday, October 5 at 8ET/PT on CTV Two
• Legends of Tomorrow Season Premiere: Thursday, October 13 at 8E on CTV Two

My experience with the interfaces on broadcaster websites has been poor, and I'm lucky if I can get them to work on any of the devices I own.

Normally the only show I care enough about to stomach the outdated broadcaster experience is Doctor Who which I both watch on Space.ca and then watch on DVD (which are made available in parts weeks after they air on TV).  Doctor Who is a show that is available on CraveTV, but given how inconvenient it is I am unlikely to ever watch that way: I buy the DVDs.  I did watch episodes via Netflix, but it seems Bell got another exclusive streaming license and Doctor Who will be unavailable via Canadian Netflix on September 15.




I'm not willing to even consider watching on Cable, Satellite or that oddball IPTV service that Bell offers (that is somehow regulated by the CRTC as a BDU rather than a streaming service).  Asking a modern Internet-era viewer to use a BDU is like forcing someone who is used to indoor plumbing to use an outhouse.  In this case it is a service that costs considerably more and still stinks.

First look at Bell's CraveTV

While I am not a fan of Bell as a company or their harmful politics, I decided to give CraveTV as a technology a quick look given they un-tied it to their BDU and Internet services since I wrote about it in January.

Technology

The service works on few devices, nowhere near what is available for Netflix.

While their site listed Samsung SmartTV, the model I have appears to be too old for their immature app. This makes it unlikely my wife will be interested in watching video on CraveTV as she finds the other options far less convenient than just using the remote control that came with the TV -- there is so much from Netflix, YouTube, and Ted Talks that all work great on the SmartTV option to bother looking elsewhere.

My first successful try with CraveTV was with what I would most often be using, which is my Chromebook and Chromecast devices.  The website was sufficient, but not inspiring.  Their "My cravings" menu allowed you to play the next video in a series, but using that interface you couldn't pull up information about the shows like you can in the other listings or after a search.  There is no recommendation engine, rating system, or other features that really bring you the modern video watching experience.  It felt kinda flat like traditional broadcast TV, only with more of a PVR experience where you can watch when you want rather than only when someone else scheduled it.

The play/pause button is not well implemented with Chromecast.  While you can open a new video on the website it does not switch which video the Chromecast is playing, and it will leave you stuck in the previous title.  There is no "stop" button which disconnects from the previous video and allows you to play a new one -- you are stuck going to the cast tab and stop casting before you can cast the next episode or switch titles.

The app for Android worked similar to the site with the Chromebook, with my phone also able to control a Chromecast device.

I tried on my desktop.   On Chrome it brings up all the widgets as if it is going to play video, and even gives that little spinning circle that they display when they are filling buffers, but no video or audio ever plays.  No indication why is ever displayed.   The little Chromecast button sits in the bottom-right corner, and interestingly it will connect to the Chromecast and play the video.  Possibly useful if you wanted to use a laptop as a remote control to a Chromecast, but not very useful otherwise.

First attempt with Firefox displayed a suggestion that I install a non-existent upgrade to the Adobe Flash plug-in.  I am already running the latest that is available for my Ubuntu 14.04 desktop (version 11.2.202.577 as I write this).  Second attempt after upgrading every package that had an update didn't get that far, with the site displaying a connection problem : "It appears there was  problem completing your request.  Please refresh this page.".  The page I was trying to go to was http://www.cravetv.ca itself, so that is a pretty bad sign.  I exited the browser and tried again, and again got the claim that "To watch video, you need an Adobe Flash Player Update" with a link to the Adobe site that only confirms I'm on the latest.

General impressions is that this is a beta service that they are marketing as if they were ready for general audiences.  I hope they realize the immature level of their site and plan to invest in finishing it.  Even ignoring my political problems with Bell I would not recommend this service to less technical users who would be frustrated having to fiddle and do odd things to try to get the video going.  The site is workable for technically literate people who can work their way around bugs in beta websites.

This site is improvement over  Rogers on Demand Online from 2009 which implemented commercials so poorly as to make programming unwatchable.  Then again, that might only be because they aren't trying to put commercials into the stream.

Content

It is the content that made me look at CraveTV rather than Shomi.   I'm not interested in the regular "reality" TV, sitcoms, or excessively light drama that the lowest-common-denominator brought to broadcast television.  CraveTV has a number of titles that are more to my liking, the type of stuff that would normally be on Space.ca (about the only channel I miss from my Cable TV days) as well as titles from HBO (Although, no Game of Thrones or even True Blood for whatever reason).  12 titles went into the "My Cravings" listing pretty quickly, and even though I only started my free trial yesterday I've already watched several episodes of The Librarians and Penny Dreadful.

It is typical of Bell that they are relying on questionable legal/business tactics like exclusive regional licensing to force people to their services, rather than offering competitive services using technology that would be considered of "release" quality by modern Internet era companies.  The only reason I would use their service is to access content I'm not legally able to get elsewhere, and I expect I will always have to put up with technology from them that is generations behind what modern companies like Netflix are offering.   It is sad that HBO and other cable-era content companies like it see Netflix as a competitor and Bell as a partner, rather than the other way around. I think far more people would be paying to access that content if it were untied from lesser distribution services and providers.

Works of cultural industry are nothing like "Happy Meal" toys.

When discussing cultural policy you will sometimes bump into individuals who seek to diminish the value of culture by comparing it to consumer products.  To them, one creative work is no different than another.  To quote Mark H. Goldberg who consults to the telecommunications industry (including "regulatory and government relations") and organizes the Canadian Telecom Summit:

@russellmcormond @RessyM @BenKlass there are lots of sources of video content. A specific show no different from a specific Happy Meal toy

— Mark Goldberg (@Mark_Goldberg) June 18, 2015

As an author (mostly of software) who recognizes the value of the creative works of others, and as an audience and sometimes major fan of creative works, it is an understatement to say I disagree with that attitude.

Creative works obviously have economic value, and we creators deserve to be materially rewarded for our contributions, but creative works have value far beyond economics.  Whether you are the author or a fan, these works are part of who you are -- part of your identity, personality, and how you see yourself in the world.  Anyone who knows me knows I am a big fan of Doctor Who, and that I quote from Monty Python skits or Rush lyrics to express ideas.   I am obviously not unique in this, and culture should always be recognized as having value within society far beyond economics, and that these works permeate and are part of authors and audiences.

I could go on, but I suspect my point is clear: The idea of comparing cultural works, such as video content, to a "Happy Meal toy" is offensive.

There is a practical reason why many people who represent the interests of intermediaries express this view.   If creative works remained a conversation between creators and their fans, then the control (and thus the bulk of the economic value) would stay within that conversation.  Contrary to the rhetoric you will hear from these intermediary representatives, fans want creators to get paid as they want those creators to have the ability to create more.   In my experience it is far more likely some artificial barrier created by an intermediary is in the way of that payment, rather than some desire for audiences to access without compensating creators.  I'm not saying that people not paying never happens, but that this is by far not the greatest barrier to authors receiving the material rewards they deserve.

What these intermediaries are doing is abusing the intimate relationship between creators and audiences for the private economic gain of that intermediary.  They exploit the ways in which cultural works are not like consumer products to the detriment of both creators and their audiences.  In my view some of these business practices go as far as interfering with both parts of Article 27 of the UN Universal Declaration of Human Rights:

Article 27.

• (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

• (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

This is the article that justifies copyright and patent law, and why there is a UN specialized agency currently called WIPO. While I believe this agency required major reform to respect and protect the entire article (and not primarily the economic interests of intermediaries), I strongly agree with this article and the need for national and international laws and agencies to protect it.


Mr. Goldberg was trying to justify on twitter one of these artificial barriers that reduces the ability of audiences to access creative works.  Specific companies within the broadcast, telecommunications, or consumer electronics industries want exclusive deals with content producers to tie the ability to legally access cultural works to the purchase of their products or services.  It is obvious why this scheme might be good for these intermediaries, but it should be equally obvious why it is bad for everyone else.

In this specific thread it was the inability of Canadians to legally access HBO video content near the time it is broadcast without paying for the services of a few select companies (Broadcast Distribution Undertakings - BDU's like Bell, Rogers, etc) who force bundles of expensive unrelated services (Cable/etc) that people otherwise don't want.   We are told we either have to financially support business practices we find offensive, not access the works, or be driven to infringing sources.  I believe these business practices induce copyright infringement as much if not more than services like ISOHunt or Pirate Bay, and as an author I consider it the responsibility of the government to step in and deal with this contributory infringement.

For the HBO shows I follow I wait months or years later until I'm finally allowed to buy the DVD. I would be happy to pay a $10/month monthly fee similar to what I pay for the much larger Netflix catalog to watch HBO shows in a more timely manner. I would still be buying most of the same DVDs as I enjoy having that catalog in my home. What we want is a Netflix-like service which is not tied to a specific Internet provider, brand of consumer electronics, or unrelated broadcast related service. While HBO is experimenting with this in the USA, exclusive deals with BDUs make it unlikely to happen any time soon in Canada without government intervention.

My strong desire to pay isn't the issue, and it is barriers created by intermediaries blocking my ability to pay.

Far from being a legitimate business practice, these exclusive deals are something that the CRTC, Competition Bureau, and Parliament should clarify as illegal.  Section 77 of Canada's Competition Act prohibits this style of activity, but unfortunately the bureau has largely left manipulating markets for creative works inadequately regulated.  While creative works are more deserving of protection than traditional products or services due to their additional importance to the cultural lives of Canadians, current interpretations of the Intellectual Property Enforcement Guidelines (IPEG - See my submission to the bureau) appear to discourage the bureau from adequately intervening.

At this time of rapid technological change, regulation against this tied selling is the most critical form of protection that the cultural sector requires.  Regulators need to get past thinking that CANCON style rules that only applied to broadcasting will be of any help (more likely a hindrance) as multimedia creators and audiences move past broadcasting as a primary distribution method.

Broken Broadcaster streaming websites

If you haven't tried to use them, you might wonder why the websites that Canadian broadcasters (or most often, the BDUs that own them) offer isn't a substitute for the subscription services I've been asking for.  You might ask why I would be willing to pay the BBC to watch Doctor Who when I could watch it for "free" by going to Space.ca/doctorwho.  The problem is these BDU/Broadcaster provided streaming websites are so poorly implemented that even if they were commercial free I would still prefer to pay for a working subscription service.

I have become used to well designed content distribution services like Netflix and YouTube which work well on all the devices that I own.  I prefer to watch television on my television, which means my Samsung Smart TV, BoxeeBox or Chromecasts.  I sometimes like to watch mobile with my ASUS Transformer tablet (Android), my Nexus 4 smartphone, or one of the variety of Chromebooks in our family.  The place I least like to watch television is on my desktop computer, although both Netflix and YouTube work perfectly fine on my desktop computers running Ubuntu Linux.

You also don't need to be highly technical to watch Netflix or YouTube on a television, while the contortions you have to do to watch television via legacy websites is something I'll never be able to train the rest of my family to do.

To contrast with the easy to use Netflix or YouTube services, during the recent Doctor Who season I tested Space.ca on all my devices, and have only been able to view on my desktop computer.  Bell even provided an application in the Android App Store, and yet I gave up trying to watch on my Android phone or tablet given how painfully it is constantly pausing to catch up with the video.  Bell can try to blame my non-Bell Internet connection, but given I see the problem with their service and not with Netflix or YouTube it is clear the problem is with them.

This month I watched Broadchurch season 1 via Netflix, and when looking up Broadchurch on Wikipedia found that Season 2 is being shown by Showcase starting this month. I watched the first episode this afternoon.

While the Shaw provided streaming service for Showcase is better than the Bell provided streaming service for Space, I would still prefer to pay to subscribe to a properly designed service.

The Showcase website doesn't work on mobile devices as they seem to still be dependent on Adobe Flash which even Adobe themselves recognize is inappropriate for a streaming service and no longer provide for mobile or other such devices.  While Shaw Communications has some apps in the Android app store , non seem to be for accessing content on their streaming service.

I tried viewing on my Samsung Smart TV, only to have the video stop with error notices about the browser running out of memory. I only seem to be able to watch a couple commercials and a few minutes of an episode.

The website "worked" on the BoxeeBox, Chromebook and my Ubuntu Desktop, but it is painful to watch.   The video quality is low, and you can see video encryption artifacts nearly all the time. Sometimes the video would pause for a moment, but nowhere near as bad as the Bell streaming service on their Android app.

The most distracting aspect is how the commercials have been poorly implemented.  The video would pass the moment where you can tell the commercial was intended to be inserted, and then start the next scene.  You would get a few seconds into the dialog and the screen resolution would change and over a (sometimes frozen, sometimes video continuing) screen you would hear the commercial, and then finally the video from the commercial would start.  The commercial would play, and then there would either be a few more seconds of the scene from the TV episode, a blank screen, or possibly the little "loading" circle spinning in the middle of the screen.  Eventually a second commercial would manage to get loaded, and you just cross your fingers hoping you didn't loose too much of the dialog from the first scene after what should have been the commercial break.

This reminded me of the RogersOnDemand online service from years back, which also implemented commercials so poorly it made the service not worth using.

I might try to watch this season of Broadchurch on the Shaw provided service.  I got hooked on the show on Netflix, and while I would prefer to pay to access via a properly implemented streaming service, the second season isn't available that way yet.  While I understand why other people might take the third option (unauthorized download site), I will stick with putting up with a crap website or not bothering to watch at all.

When I watch television or movies, I want to get into what I am watching and not be constantly having to do technical contortions or be reminded about the poor technology platform.  This is something I've never seen done correctly by any of the Canadian broadcasters (or now the BDUs that own them).

Lets see if I make it to the end of the season before I give up and wait for the season to be released on Netflix.  I waited to watch Season 1 when it was finally made available on Netflix in December 2014, and maybe I will enjoy the series more if I wait until Season 2 is finally licensed for Netflix -- maybe December 2016?