Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

In the age of streaming, social media, and subscription-based entertainment platforms, critics have called for amendments to Canada's , which was last updated in 1991 – long before the internet we know today materialized. On February 2, 2022, Minister of Canadian Heritage Pablo Rodriguez , proposing sweeping changes to Canadian broadcasting regulation and policy directives. Referred to as the Online Streaming Act, this proposed legislation purports, among other things, to uplift and amplify Canadian creators by regulating online streaming services such as YouTube, Disney+, Amazon Prime Video, and Netflix.

Its predecessor, Bill C-10, was passed by the House of Commons but was unable to secure Senate approval before the dissolution of Parliament in 2021. Like Bill C-10, the proposed Online Streaming Act seeks to bring unregulated digital media platforms within the mandate of the Canadian Radio-television and Telecommunications Commission (CRTC). Currently, these foreign-based platforms operate outside the regulation of the CRTC as distinct from traditional TV/radio broadcasts, and thus are not required to invest significant resources in Canada's domestic creative industries. The Canadian broadcasting, film and television production sectors are substantial players in the Canadian economy, accounting for approximately $14 billion to Canada's GDP in 2019 and predicted to rise in the coming years. According to a poll cited by the Canadian Media Producers Association (CMPA),

The Online Streaming Act coins the concept of an "online undertaking," broadly defined as "an undertaking for the transmission and retransmission of programs over the internet," giving the CRTC wide discretion in determining what is considered a "program" under its framework. Furthermore, the CRTC would be empowered with the ability to order and impose conditions upon online services to advance various policy objectives, including promoting Indigenous and racialized community-produced content.  

Reactions to the proposed legislation have been mixed. The CMPA, which represents over 600 independent production companies across Canada, have launched a They argue that the Online Streaming Act will redirect some of the streaming giants' profits back into Canada's creative sectors and make it easier for Canadian audiences to access Canadian and Indigenous content outside platform algorithms. Jennifer Brown, CEO of the Society of Composers, Authors and Music Publishers of Canada (SOCAN) told The Globe and Mail that she thinks .

Others are concerned with how the proposed amendments would affect user-generated content and individual rights to curate one's own media feed. Ramneet Bhullar from OpenMedia.org takes issue with , arguing that the threshold of "Canadian"-ness is inherently problematic and that the CRTC's expanded powers will only amplify "officially recognized content", rather than the content individual consumers want to see.

YouTube also spoke to CTV News, Youtube noted that arbitrarily promoting Canadian content could skew their algorithms. These algorithms take into account whether a video has been watched, ignored or turned off part way, thus affecting how the content is promoted.

Michael Geist, a law professor from the University of Ottawa that he believes “the starting point in the bill is that all audio-visual services anywhere in the world with some Canadian users or subscribers are subject to the Canadian jurisdiction and it will fall to the Commission to establish thresholds exempting some services from regulation. However, even with some exemptions, the Canadian approach will require registration and data disclosures, likely leading many services to block Canada altogether, reducing choice and increasing consumer cost.”

is currently at consideration in committee at the House of Commons, having completed its second reading as of May 12, 2022.

Further Reading:

Bill C-11 in its entirety:

CMPA's Campaign to pass the Online Streaming Act:

Global News: What’s a Canadian Film?

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A 2012 acknowledged the growth of OTT services, but recommended that Canadian broadcasters respond by moving aggressively into the OTT space rather than creating a new regulatory category for internet media. Rogers and Shaw attempted this in the past few years with their OTT service Shomi, which has since failed, but Bell’s CraveTV .

At the end of 2016, Netflix and Amazon Prime announced that they were expanding their service into virtually every country in the world, with Netflix in 190 countries and Amazon Prime in 200. With OTT services now becoming truly global in scope, how will Netflix and Amazon simultaneously deal with the media regulations of every government in the world and how can Canadian content producers and distributors continue to compete?

by Brian Barrett, a senior writer at Wired and former Editor in Chief at Gawker Media answers the first question with two words: original content. If OTT services invest in creating their own shows, a significant amount of work around licensing the rights to stream movies and shows by other producers eventually gets cut out as more and more content is added directly by the provider. A previous example is Comcast’s in 2009 where a major broadcaster bought a major content producer to gain greater control of the media supply chain.

Over the past 5 years Netflix and Amazon have done just this, growing their library of original TV shows and movies. Bell has begun to produce its own shows through CraveTV, signalling an adoption of this model in Canada. The effect of a distributor owning its own content is that it makes licensing unnecessary, as a single entity now owns the rights to the content in perpetuity and therefore can distribute them without need for a license. This saves time and money and simplifies the supply chain of delivering content but it also signals a major shift that concerns media creators and distributors around the world.

If more and more content that people want to consume is produced by OTT distributors, then the ability of Canadian media companies to get licences for in-demand shows becomes far more difficult and will cut them out of the supply chain. Bell currently has licences for HBO and Showtime, two popular US content producers, but both have their own small OTT services, HBOgo and Showtime Anytime. The first is currently available in Canada with a (a subsidiary of Bell), the second is . If the big OTT’s gamble on content creation pays off, these content creators may try to grow their own OTT presence globally rather than keep selling licences.

While it is clear that Canadian distributors need to focus on content creation, it is also important that this content be marketable outside Canada. The federal government has affirmed a commitment to move from “focusing on growing the domestic market” to “capturing a greater share of global markets” in a recently commissioned Heritage Canada titled “Canadian Culture in a Digital World”. Heritage Minister Mélanie Joly told the in 2016 that the biggest challenge for content producers is “finding better ways to export the material on digital platforms around the world”. The article noted such a review of CanCon rules is a major upheaval not seen in 25 years.

The move to global OTT services signals an increase in demand for high-quality content and a reduction in the barriers to distributing content to other markets. Canada is well positioned to profit from this change, if it allows it creators and distributors the freedom to create shows that are compelling to global audience, not just a Canadian one.

Roger Angus is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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Japanese broadcasters completed the switch to digitized terrestrial TV broadcasting at noon Sunday, July 24, ending the analog transmission in 44 prefectures, except in the three prefectures – Miyagi, Iwate and Fukushima – hit by the March 11 quake and tsunami, where the decided to put the switch off. Here the switch will take place at the end of March 2012.

Being aware that people nationwide have yet to prepare for the analog-to-digital, the Ministry of Communications has increased his staff to provide for technical help to the citizens. According to the broadcasting industry, fairly 100 thousand households haven’t bought essential equipment such as digital tuners and antennas yet. Furthermore, the Ministry of Communications distributed free digital terrestrial tuners to low-income families. Moreover, there are many unreported households that have refrained from making the transition, whether intentionally or for other reasons. Despite mass campaigning by the government and terrestrial broadcasters, there’s still concern that many senior citizens and those with disabilities have not made the transition.

Japanese analog broadcasting service began on February 1 1953 at 2 p.m. Although (Nippon Hōsō Kyōkai, Japan’s national public broadcasting corporation) beamed experimental television broadcasts in 1939, it wasn’t until more than 10 years later that regular TV programming started. The NHK opening program was the kabuki classic “Michiyuki Hatsune no Tabi”. The next day the inauguration of U.S. President Dwight D. Eisenhower was broadcasted. The first commercial broadcaster was Nippon Television Network Corp. and started its regular programming on August 28 1953, airing a baseball game live the next day. The first satellite broadcast was supposed to be a recorded message by U.S. President John F. Kennedy scheduled for the morning of November 23 1963.

As stated above, NHK is the public broadcasting corporation, but it is not the only Japanese broadcaster. Alongside to NHK there are five nationwide TV networks — , , , , — all of which are affiliated with national newspapers, except for NHK. NTV is affiliated with national daily , while TV Asahi is affiliated with its rival daily, the . Besides the national networks, there are also independent terrestrial commercial stations, not members of the national networks but forming together the Japanese Association of Independent Television Stations.

The first step towards the digitalization of TV transmission started in 2001, after the Diet – on July 25 – passed revisions to the Radio Law to change the frequency of analog broadcasts, providing a 10-year window for users to make the switch to digital.

The first digitalized programs were transmitted in 2003 in Tōkyō, Ōsaka and Nagoya and nationwide in 2006. Until July 24th, 12 p.m., analog TV and digital TV have been simultaneously broadcast.

As in Italy and in other relevant countries, also Japan decided to switch from analog to digital since digital broadcasting provides higher quality images and sound. Moreover, broadcasters can transmit data in a compressed format using only two-thirds of the bandwidth needed for analog broadcasting, meaning that the extra bandwidth can be used for new types of broadcasting.

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The Advertising Standards Authority (ASA), the independent advertising watchdog of the UK, On July 13, 2011, complaints against , a SMS mobile phone content provider, over their ad for a that was originally televised in April 2011.

The complainants alleged that the ad was misleading, contrary to rules and of the (BCAP Code), as it implied that the app would allow the buyer to read another person's private text messages. The ad was also challenged on the basis of as being irresponsible for encouraging and condoning criminal behaviour (i.e. phone hacking).  The complete voice-over of the ad can be read .

, owner the Jamster brand, maintained that the ad never intended to imply that the app was a real SMS reader; they thought that the words “Fun App” appearing on the screen was sufficient to convey to the audience that the app was a joke product allowing consumers to pretend that they had acquired a real SMS reader. , the agency that executed the joke ad, argued that the voice-over that included phrases such as “Fool your friends” and “This fun app” made clear that the app could not be used for unscrupulous purposes.

The ASA agreed with the advertisers that the ad was not irresponsible, as the ad did not encourage viewers to use the app for pernicious purposes. However, the ASA rejected the claim that the ad made clear that the app was a joke product as the ad was ambiguous as to the exact nature of the app. For example, the voice-over of the ad stated, “Fool your friends and pretend to read other people’s text messages”, but continued to say, “This fun app can hack into your friend’s mobile and give you all their incoming and very private SMS messages”. As such the ASA found that the ad breached rules 3.1 and 3.10 of the BCAP Code and held that the ad should not appear again in its current form.

The ASA decision is not surprising as the organization has historically fiercely defended the notion that advertising should be . In addition, the decision was made in the midst of the public outcry against the News of the World and News Corporation for it phone hacking activities and just Rupert Murdoch announced that the News of the World would be shut down (For IPilogue’s coverage on Murdochgate see and ).

In an unrelated interesting coincidence, News Corporation used to in Jamster until Jesta Digital in December 2010.

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The CRTC's decision reflects the same rationale of its previous decision. Back in 1999, the CRTC set forth the New Media Exemption Order as a means to allow continued innovation by stakeholders engaging in the growing opportunities of the Internet. The CRTC's decision to issue the Exemption Order was also due to their view that at the time, new media's effect on audience size was still limited. The general view was that regulating new media broadcasting was not necessary to achieve the policy objectives set out in the Broadcasting Act.

The recent decision comes in light of the decade of change reported by theNew Media Project Initiative ("Initiative") and the submissions from Broadcasting Public Notice . The Initiative released its regarding the cultural, economic and technological issues associated with new media broadcasting on 15 May 2008. Similarly, the CRTC's Public Notice called for comments on the issues pertaining to Canadian broadcasting in new media, specifically regarding themes such as the definition of broadcasting in new media, new media's impact on the Canadian broadcasting system, necessity or desirability of a regulatory measure for new media broadcasting, public policy issues, and the general appropriateness of the continued exemption of new media broadcasting.

As a result, the CRTC has decided to continue its hands-off approach to allow new media to flourish, fostering innovation and creativity. The CRTC believes that broadcasters are sufficiently equipped to adapt to the challenges of changing technology and were encouraged to embrace and innovate new methods of integrating new media into their business models. This view was countered by some parties, such as artists, writers, unions, etc., that argued that regulation would foster a stronger Canadian presence in new media. However, the CRTC holds that the traditional broadcasting framework cannot be imposed on new media broadcasting when evidence does not point towards regulation being a necessity (and in the meantime, eliciting positive development by remaining unregulated).

The CRTC also remains 'hands-off' on the issue of resolving digital rights, expecting the broadcasting and production sectors to develop the appropriate framework to resolve ownership and exploitation of digital rights.

One area of positive action, however, is the CRTC's decision to amend the New Media Exemption Order to prohibit gatekeeping of the new media environment. The amendment will prohibit any new media broadcasting undertakings that are the result of the conferring of an undue preference to access, either to themselves or another person, or by subjecting any person to undue disadvantage.

Also of note in this decision was the rejection of calls for a levy to fund Canadian new media broadcasting content. The proposal was put forth by many cultural groups to establish a fund to develop high-quality, professional Canadian new media broadcasting content. These groups also argued that Internet Service Providers (ISPs) and Wireless Service Providers (WSPs) were critical players in Canada's new media broadcasting and as such, should be required to contribute to such funding initiatives. Naturally, ISPs and other parties argued that ISPs are by definition not subject to the Broadcasting Act and as such, the CRTC lacks jurisdiction to impose a levy on revenues for broadcasting-related purposes. Also, such a fund was not required as new media plays a complementary role to traditional broadcasting sources as well as the fact that there are sufficient market incentives in place to provide high-quality professional content. Ultimately, the CRTC was of the view that there was insufficient evidence presented to establish that any funding to support increased Canadian new media broadcasting content would further the objectives of the Broadcasting Act. (The , which will come into effect in April 2010, will provide funding that may cover this area).

Although the idea of ISP levies was rejected, the CRTC nonetheless stated that it is important that the issue of whether the Broadcasting Act is applicable to ISPs be resolved. The CRTC intends to initiate a reference to the Federal Court of Appeal to determine this issue.

Despite the CRTC's refusal to get its hands dirty with new media broadcasting regulation, it stated that it will continue to monitor the evolution of the new media environment and is set to review the decision within 5 years.

The CRTC's decision also calls on the Government of Canada to address the need to develop a national digital strategy. The digital environment is changing very rapidly and the current state of legislation may not be flexible enough to compensate for the growth of the digital age. It was alluded to in the concurring opinion of Commissioner Timothy Denton that the CRTC has made the best decision that it could have within the confines of an almost obsolete Broadcasting Act. The Act is incapable of addressing the full extent of new media's effect. The statute is silent on new media technology and in light of the boom of the Internet, Canada desperately needs new legislation. The CRTC is conscious of the many other countries that have already developed national digital strategies (e.g. Britain, France, Germany, and Australia). Without its own digital strategy, Canada may risk being left in the dust of countries with more competitive legal frameworks for their digital realm.

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