In recent years, services and media content available online have evolved and proliferated to a point where governments around the world are now seeking to subject them to more detailed and comprehensive regulation. These are invariably attempts to catch up with current technologies and business models, and establish regimes that will better stand the test of time. Canada’s efforts are playing out in proposed amendments to the Broadcasting Act and the Copyright Act.

Broadcasting

Years ago, the Canadian Radio-television and Telecommunications Commission (CRTC) decided that audio and AV services that are delivered and accessed over the public Internet (or point-to-point via mobile devices) are “broadcasting” and subject to the Broadcasting Act. Having made that decision, the CRTC has exempted Internet streaming and on-demand services from almost all regulation since 1999. More recently, the massive growth of digital services, the example of other countries and regions such as the EU in establishing new regulatory regimes, and increasing calls by Canadian stakeholders to address the divide between regulated and unregulated businesses, have all pushed heavily to change the status quo.

In November 2020, the federal government tabled amendments to the Broadcasting Act with the objective of regulating online services. Bill C-10 (the 2020 Bill) purported to “level the playing field” between traditional and online broadcasters, “including those serving Canada from abroad.” The Bill and the very prospect of regulating the Internet were vigorously debated in Parliament, Committee review, and the media, but the Bill died on the Order Paper when Parliament was dissolved in August 2021. The re-elected minority government has committed to “reintroduce legislation to reform the Broadcasting Act to ensure foreign web giants contribute to the creation and promotion of Canadian stories and music.”

According to government statements and the 2020 proposed amendments, the CRTC is to regulate in a way that “is fair and equitable as between broadcasting undertakings providing services of a similar nature”, considering size and other differences. Under the current Act, and under the 2020 Bill, the CRTC could exempt services from some or all of the Act’s requirements. But even an exempt service may be subject to some obligations, as conditions of exemption.

Proposed amendments and government statements have been broad and vague by design, as the government intends to give the CRTC the latitude to develop the details of the new regime itself. Obligations could include:

• Canadian content exhibition and expenditure requirements;
• Contributions to independent production funds;
• Contribution to the CRTC’s costs;
• “Discoverability” for Canadian content;
• Accessibility requirements, including closed captioning and described video;
• Content standards (e.g., compliance with Canadian laws, abusive comment, obscenity, false or misleading news, political programming); and
• Reporting on subscribers, Canadian content, accessibility, and financial information.

Canada’s proposals to regulate streaming and on-demand services go further than what we see in other countries' regimes. 2022 will be an important year to see how much the framework (the Act) and actual regulations (CRTC) will impact the business of broadcasting in Canada. 

Copyright

The government launched a consultation in April 2021 to review and potentially overhaul the Copyright Act framework for online services. Services targeted range from more active platforms, such as social media and free streaming platforms; to more passive, such as Internet service providers, cloud storage and web hosting; to those that operate in both camps, such as search engines. The consultation raised:

• Clarifying safe harbour protections against liability for copyright infringement;
• Compelling collective licensing on certain platforms;
• Increasing transparency in rights holders’ remuneration and online uses of their content; and
• Clarifying or strengthening rights holders’ enforcement tools, including “website-blocking” and “de-indexing”.

Whether third-party website blocking is an available remedy under the Copyright Act was the subject of a Federal Court case in 2020 and 2021. The Court heard from broadcasters, program rights owners, Internet service providers and interveners representing all sides of the issues at stake, from copyright law and policy and the underlying broadcast regulatory regime, to the law in other jurisdictions, to net neutrality and freedom of expression considerations. While the Court decided third-party website blocking is available to rightsowners, Parliament may change or refine the law on this point, making this an issue to watch for 2022.

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