Sweeping government review to include CRTC, Broadcast Act, CanCon

Industry insiders and observers are calling Canadian Heritage’s impending study of Canadian content in the digital age — which could potentially affect CBC/Radio-Canada, legislation like the broadcasting, telecom and CRTC acts, and Canadian content rules for TV and radio — long overdue. Ken Engelhart, former Rogers Communications Inc. senior vice-president and principal of Engelhart Law, said in a phone interview that he hasn’t seen a review like this during his more-than-25-year career in the broadcasting and telecommunications industry. “It has been a long, long time since the government looked at broadcasting like this,” he said. On Saturday morning, the federal government launched the first phase of a consultation on “how to strengthen the creation, discovery and export of Canadian content,” according to a Canadian Heritage press release. “The time is right to examine how we can help Canada’s creative sector seize the opportunities of the digital shift and create economic growth through innovation,” Heritage Minister Mélanie Joly said in the release. The study is kicking off with a pre-consultation online questionnaire, which the department said is going to be used to help create the scope of the actual consultation that will begin in the summer and be lead by Joly and an expert advisory group. The questionnaire is available until May 20. “Federal support for the content creation sector is based on a toolkit including funding mechanisms, legislation, national institutions and policies,” said a consultation background document, which includes a chart of a federal cultural policy toolkit. “The effectiveness of these tools is being challenged by rapid technological developments, globalization and the new ways in which creators are making content and Canadians are interacting with it.” Pierre-Olivier Herbert, spokesman for the Heritage Minister, confirmed over the phone that the list of 26 agencies, policies, funding programs and institutions that make up the toolkit will be reviewed as part of the consultation. That list includes the Broadcasting Act and Telecom Act, CBC/Radio-Canada, Canada Media Fund and Canadian content rules, as well as the CRTC Act and the Copyright Act. Also on the table are the National Film Board, Canada Council for the Arts, and Telefilm Canada. The consultation will also encompass government policy on audio-visual treaty co-production and international agreements, plus film and video production tax credits and export promotion funding, among others. The minister’s office declined an interview request, and declined to answer further questions including how extensive the changes could be, whether potential regulation of online content, such as Canadian content and contribution rules for streaming services will be considered as part of the review, what form the upcoming consultation will take and whether there is a timeframe for a decision. The review is “huge,” independent broadcast analyst Kelly Lynne Ashton said in a phone interview. While there have been commissions that examined particular sectors one at a time, there hasn’t, historically, been the need for a “structural review of how we support Canadian content and culture,” Ashton said. “There has been the need in the past five to seven years, but if you’re looking long-term at Canadian Heritage, there wasn’t this need 15 to 20 years ago for this holistic approach.” One of the last major reviews of broadcasting policy came in 1986 via the Caplan-Sauvageau Report, which was commissioned under the Mulroney government, and the Broadcasting Act itself was updated in 1991, Andrew Cardozo, a former two-term CRTC commissioner, said in a phone interview. “I personally think it’s high time” for a review, said Cardozo, who is also head of the Pearson Centre for Progressive Policy, a liberal think tank. “As a country, we’re falling behind in terms of innovation.” CRTC spokeswoman Patricia Valladao said over the phone that the CRTC has engaged in “significant public reviews” of its policies in recent years, including the Let’s Talk TV proceeding, and the current proceeding on basic telecom services. “All of those things are already part of a review process,” she said. Broadcasters and industry groups applauded the government’s announcement. CBC spokeswoman Alexandra Fortier said in an email that the public broadcaster welcomes the review. “The government understands the need for change for institutions like ours operating in a rapidly changing communications, technology, broadcasting and telecom landscape,” she said. “The need for a broad consultation with Canadians and the industry on the digital shift is something we have been discussing for years.” Corus Entertainment Inc. declined to comment on the consultation. Rogers spokeswoman Jennifer Kett said in an email: “We’re looking forward to participating and believe these discussions are essential for the future of the industry.” She added that during its appearance in front of the Heritage Committee last week, the company “identified the need to update a number of funding tools like CMF, Canada Periodical Fund and CAVCO to reflect new digital realities.” BCE Inc. chief regulatory officer Mirko Bibic said in an emailed statement: “We welcome the consultation and look forward to a dialogue with the minister about how to further celebrate and showcase Canadian content, both here and around the world.” In an email, Reynolds Mastin, Canadian Media Producers Association (CMPA) president and CEO, said that “Canada’s independent producers must be at the core of any new framework so that world-class content continues to be made by Canadians for both Canadian and international audiences, across all platforms.” “We believe it is important that any discussions around a revised policy toolkit ensure that Canadians can take full advantage of the digital age to access the vast array of content made by Canadian independent producers,” Mastin said. The government needs to come to terms with the digital age and the fact that the Broadcasting Act was written in a time before the Internet was a real concern, Norm Bolen, former CMPA president, said in a phone interview. What that regulation, or lack thereof, looks like when all is said and done is less definitive, but most of those contacted by The Wire Report generally agreed the Broadcasting Act would likely have to change at the end of the process. Former CRTC chairman Konrad von Finckenstein said in a phone interview that the government “will have to reopen the Broadcasting Act, no doubt about it.” Once you move into the Internet sphere, you lose an element of control, which has protected Canadian content in the past, meaning you have to rethink your methodology, he said. “You can no longer think of access control as a tool to favour Canadian content. And I think it’s great that we have arrived at doing a wholesale review,” von Finckenstein said. This review will be a “really important moment in Canadian cultural regulation,” Timothy Denton, former CRTC commissioner, said in a phone interview. “The entire Broadcasting Act is predicated on spectrum scarcity, no matter what they tell you about its technological neutrality. Licensing implies a scarcity which licensing tries to deal with by government-approved allocations. Government management of spectrum creates the spectrum scarcity as surely as rent controls create scarcity of apartments. So when they see the Broadcasting Act is technologically neutral, what they mean is that, despite its original assumption of a scarce number of voices talking to the many, they intend to apply it to situations where voices are many, indeed, close to innumerable,” Denton said in an email. “We need to stick to the objectives of the Broadcasting Act, which is to make sure Canadian content has a pre-eminent role in the Canadian world, and also has an impact outside of Canada,” Bolen said. “But we have to do it in the digital context. So that’s going to be a real challenge, to find out how to do that.” The digital element is so pervasive that it can’t be confined to one aspect of the cultural sector, said Ashton, who used an example of using virtual reality to visit a museum to view visual arts. “So do you call that digital media or do you call that visual arts? The artificial silos are no longer valid and we need to look at it all together and bring it back to first principles: do we want Canadian content? Yes. How do we support it? How do we finance it, how do we distribute it how do we make sure there’s access to it, how do we make sure the people in involved make money from it?” she said. Independent broadcast consultant Peter Miller said big question marks surround how the government and the advisory group will “grapple with the unknowns.” “I guess my big caution is we still don’t really know the extent to which traditional media can co-exist with digital media,” Miller said in a phone interview. “There’s a school of thought that says everything’s moving to the Internet and old media will die. And then there’s a school of thought that they’ll reach a state of natural co-existence so that you can have an unregulated digital media sector and regulated broadcasting sector and they’d reach a natural level of sustainability.” Different players will have different objectives when they get their chance to have their say, said Engelhart. Canadian content producers will be looking for some form of assistance while distributors will be looking for a form of parity, he said. Since the advent of broadcasting, Canadian producers have always been in the shadow of the U.S. “and its incredible entertainment machine,” Cardozo said, noting the domestic challenge is combining technological advances with ensuring or facilitating Canadian content. “It’s going to be a real fun discussion,” Cardozo said. — With reporting by Charelle Evelyn at cevelyn@thewirereport.ca and reporting and editing by Anja Karadeglija at akarad@thewirereport.ca

Sweeping government review to include CRTC, Broadcast Act, CanCon

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