Heritage’s CanCon review could take a decade to play out, panel hears

OTTAWA — The results of the sweeping review of Canadian content in a digital age announced by Heritage Canada last week could take 10 years to materialize, University of Ottawa law professor Jeremy deBeer said Thursday during a panel discussion at the New Developments in Communications Law and Policy conference. “I think Joly is on the right track when she says everything’s on the table, because you have to take that sort of holistic approach, so you can push or pull on these different … policy levers,” deBeer said at the event put on by the Law Society of Upper Canada. The government has said the review could affect 26 agencies, policies, funding programs and institutions, including the Broadcasting Act and Telecom Act, CBC/Radio-Canada, Canada Media Fund and Canadian content rules, the CRTC Act and the Copyright Act. “It’s important to recognize that no single branch of government is going to be able to address this issue. So we can’t talk as if, oh, there’s going to be a cultural policy review, and suddenly we’ll have a crystal clear regulatory framework, a new communications act or something like this,” he said. To implement such a review, it will necessary for the judicial, executive, and legislative branches of government to participate, and “even if we get sweeping policy reforms and new legislation, there will be administrative tribunals that are tasked with implementing this,” he added. Inevitably, it will be the courts that have the last word, deBeer predicted. “I think we can imagine a number of pathways to the Supreme Court of Canada, and it’ll be a decade before this is resolved definitively either way,” he said. At a separate panel later that morning, Asha Daniere, executive vice-president of business and legal affairs at Blue Ant Media Inc., questioned whether the review will be able to keep pace with how fast technology changes. She said she’s concerned that, considering “the time that it has taken for simply just the Let’s Talk hearing and the evolution of the creation of that regulation,” if it takes a decade to see the outcome of the Heritage review, “the landscape will have dramatically shifted again.” “Even if it’s five years, which seems like a conservative estimate given all our experience with government regulation,” she added. Communications lawyer Joel Fortune noted that questions like whether to implement a tax on Internet service providers (ISPs) “can be made in a shorter time than five or 10 years for an overhaul.” Ann Mainville-Neeson, Telus Corp.’s vice-president of broadcasting policy and regulatory affairs, said the review is overdue, and that it will be necessary to “think outside box … because we cannot continue to sustain the same things that we’ve been doing for many years.” “We need to think of exporting more Canadian content, and think globally, because if we don’t, if we continue to try to believe that we can create that walled system that is vanishing, we’re not going to have productive and successful policies,” she said. It also doesn’t make sense to have different rules for different ways of delivering content, she said in reference to an earlier example of treating streaming services like Netflix differently under the law from broadcast content, even if they’re accessed through the same set-top box. “There’s no doubt that when we offer services as part of our BDU and when we offer access to services as an ISP, we are not under the same rules at all and operating under the same regimes,” Mainville-Neeson said. “That is very strange now, in today’s world, for the consumer. I mean, we’re all regulatory lawyers, and we can deal with that … but try to explain that to a consumer. It just doesn’t make sense,” she said. “Just because it evolved a certain way historically, doesn’t mean it needs to stay that way.” At the same time, the review should look at how to continue to have a good broadcasting system, she added. “To me, when the minister says ‘let’s put everything on the table,’ let’s absolutely do so, and consider from a broad perspective here, where do we as a society want to go in the area of arts and culture and should we be looking at a separate regime for broadcasting, which is increasingly so difficult to define,” she said, giving an example of smartphones that can shoot live video. “All of these things are blurring,” Mainville-Neeson said. Kevin Goldstein, vice-president of regulatory affairs, content and distribution for BCE Inc.’s media division, said he’d like to see the review result in “a system that supports Canadian programming in a way that is going to allow it to flourish, not just here but outside of our borders,” adding that funding mechanisms will become increasingly important. He said it’s also necessary to implement rules “that recognize what we’re dealing with in Canada in terms of economies of scale,” given the size difference between the Canadian and U.S. economies. Gary Maavara, executive vice-president and general counsel at Corus Entertainment Inc., warned that the review could result in unintended consequences, which can happen when a “simple system,” such as the political system, tries to regulate a “complex system.” Things change quickly in the industry, and predictions can be wrong, he added. “My view is that we’re going to have a challenge in defining the problem we want to solve, even before we decide what we want to propose,” he said. The way to avoid unintended consequences is for participants, Maavara argued, is to think deeply about the issues, listen to each other, and keep in mind that “there don’t have to be winners and losers, that we don’t have to pin somebody else down in order to get ahead.” — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Charelle Evelyn at cevelyn@thewirereport.ca

Heritage’s CanCon review could take a decade to play out, panel hears

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Heritage’s CanCon review could take a decade to play out, panel hears

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