In the News April 26

In the Parliament

The Online Streaming Act and “Canadian Content”

Bill C-11, the Online Streaming Act, will subject online streaming corporations such as Netflix and Spotify to obligations similar to those imposed on traditional broadcasting licence holders to support “Canadian culture.” It is a reincarnation of Bill C-10, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts which was introduced in the last parliament but died in the Senate when the Liberals killed it by calling their opportunistic early election.

Many organizations and individuals involved in the field of broadcasting, culture and entertainment and related laws and regulations opposed both the content of Bill C-10 and the high-handed manner in which the Liberals pushed the legislation through Parliament. This included last-minute Liberal amendments that could not be debated when clause-by-clause review was underway at Committee.

According to Minister of Canadian Heritage Pablo Rodriguez, the Liberals listened and acted upon the criticisms and concerns raised. Indeed, the Online Streaming Act has withdrawn some of the most controversial aspects of the original legislation but in a most farcical manner. For instance, Bill C-10 eliminated the decades long, albeit ineffective, guiding principle that “the Canadian broadcasting system shall be effectively owned and controlled by Canadians.” The Online Streaming Act reintroduces the principle, but amends it to say: “the Canadian broadcasting system shall, with the exception of foreign broadcasting undertakings providing programming to Canadians, be effectively owned and controlled by Canadians.” [emphasis – Renewal Update]

Another matter of concern was individual artists and Canadians at large who upload videos to online streaming platforms being captured by the Canadian Radio-television and Telecommunications Commission (CRTC) regulatory powers. Rodriguez has reduced this issue to a matter of whether or not “cat videos” will be regulated. The Online Streaming Act specifically excludes such users, but in a sub-clause allows the CRTC to use regulatory powers to make exceptions to their exclusion.

It is estimated that currently licenced broadcasters (TV and radio) contributed approximately $3.4 billion (2019) in broadcasting revenues and contributions to Canadian content. The Ministry of Canadian Heritage projects that if online streamers are required to contribute at rates similar to traditional broadcasters, their contribution to Canadian content could amount to about $830 million per year by 2023, although this is a figure that has been criticized as lacking factual foundation.

Canadian Heritage projects that the declining commercial broadcasting revenues will result in a decline of Canadian television content of up to 34 per cent by 2023, compared to 2018. This decline is blamed on the big streaming companies. One example given is that Netflix is now present in 62 per cent of Canadian households and people are increasingly “cutting their ties” with cable TV providers.

Against this backdrop, the legislation also aims to increase the “discoverability” of “Canadian content.” This is another contentious issue because of the peculiar basis for determining what meets the definition and the impact it will have on Canadian artists who do not meet the criteria. It is also viewed as a form of censorship in an era where social media platform giants such as Google determine what an individual sees or does not see in their searches. The CRTC is empowered to establish the definition of “Canadian content” through its regulatory powers. It will also be empowered to monitor how online streaming platforms are working to promote Canadian content.

Michael Geist illustrates the arbitrary nature of the rules. The Canada Research Chair in Internet and E-commerce Law writes: “The bill purports to support ‘Canadian stories’ but the current system often means that certified Cancon has little to do with Canada and fails to meet those objectives. Case in point: the certification of Gotta Love Trump, a film primarily comprised of pro-Trump clips that include Trump’s photographer, a former Apprentice contestant, Roger Stone, Candace Owens, and a cast of others with scarcely anything resembling Canadian content.”

He continues; “This documentary simply has nothing to do with Canada or a Canadian story. Yet it is purportedly this kind of content that Bill C-11 seeks to support with mandated payments from Internet services around the world. Gotta Love Trump stands in stark contrast to productions such as Amazon’s All of Nothing: Toronto Maple Leafs, a five part series that followed the Leafs for months during the 2020-21 season. The film is narrated by Will Arnett (a Canadian) and used Canadian crews. However, it does not qualify as Canadian content, nor does Jusqu’au Declin (a Quebec film produced by Netflix) or Turning Red (Disney+).”

He concludes: “If Canadian Heritage Minister Pablo Rodriguez is serious about supporting Canadian stories, the starting point should not be to layer the flawed Bill C-11 onto a cultural policy framework that does not achieve those objectives. Rather, the government should first craft a policy approach that supports Canadian stories – not stories about Donald Trump that bear little if any connection to Canada – and then discuss potential policy measures to help fund that framework.”

Geist has posted a “Canadian content quiz” that illustrates the arbitrary, irrational foundation of the criteria. To view the quiz, click here.

Renewal Update, posted April 26, 2022.

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