Category Archives: Television

REACH – Equity Screening for Content Creators

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I recently read a blog post that offered a set of questions that a content creator should ask themselves when creating content to prevent unconsciously recreating stereotypes.  The intended audience is for blog writers and other authors but screen-based creators may also find this useful.  The author calls it their REACH system:  Representation, Experience, Accessibility, Compensation and Harm Reduction.

I encourage you to read the short post but I offer a couple of questions that film, tv and digital media creators can ask themselves under these headings (and I thank the speakers at the recent iLunch Representation in Interactive Digital Media that I moderated for some of these ideas – Megan Byrne, Rob Elsworthy, Winnie Jong and Miriam Verburg).

Representation:

  • How does the story you’re telling impact people from different backgrounds.  Take a look at the list in the blog post and see the description of diversity.  It is much more than skin colour or sexual orientation and also includes age, educational background, family composition, location and more.  If we move away from tick boxes it will be easier to be truly representative. [Yes, tick boxes are a necessary evil when measuring progress but shouldn’t be anywhere near the creative process IMHO]

Experience:

  • I’m not going to suggest that creators should be limited in the stories that they can tell but I will suggest that you ask yourself if you’re the best person to tell a particular story. Ask yourself if the story might be more authentic if you included people with different lived experience in the creative process either as consultants or co-creators.  When you do research don’t limit yourself to books and articles but talk to people. Rob Elsworthy told the story at the iLunch of creating a game with a black woman as the main character.  As a black man he realized he couldn’t effectively portray a black woman until he spoke to several.

Accessibility:

  • Have you made your content accessible to a wide audience.  This means considering more than described video and closed captioning.  It’s considering where colour-blindness might have an impact (e.g. is an important clue to the mystery dependent on the colour of the fabric found).  Do characters speak at the right pace for the captions to follow or do they talk too fast?  Is there too much background noise.  If it’s a game are the controls customizable? Do a little research and you’ll find all sorts of accessibility guides.

Compensation:

  • These questions try to get creators to consider whether they are benefitting financially from other people’s stories and suggest that perhaps creators should find a way to compensate the owners of the stories.  I’ve blogged before about ImagineNative’s excellent “Indigenous Protocols and Pathways” guide to working with Indigenous communities for screen-based creators.  It has suggestions for how to give back to communities even when working with what we would consider ‘public domain’ stories.

Harm Reduction:

  • Do a pass on your creative material and consider whether you have unintentionally reinforced any stereotypes.  Production can also insert stereotypes without thinking (or intentionally) so sometimes it is out of your hands as a content creator. You will be farther ahead though if you think about it before delivering that draft.

Improving representation and being more authentic in story telling is a process.  Guides like this one do a great job in translating the issues for content creators so that we can all be better.

 

 

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Indigenous Protocols and Pathways – Rights and Permissions in Screen-based Media

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Earlier this spring imagineNATIVE launched On-Screen Protocols and Pathways: A Media Production Guide to Working with First Nations, Métis and Inuit Communities, Cultures, Concepts and Stories (the “Guide”).  The Guide “is for use by screen-story tellers and production companies wishing to feature First Nations, Métis or Inuit people, content or concepts (traditional or contemporary cultures, knowledge or intellectual property) in their films, television programs and digital media content”.  I was looking forward to reading it from a Diversity and Inclusion perspective but at a recent Ontario Creates Discussion Series to promote the Guide, I had an eye-opening realization that the Guide was also an essential tool for entertainment lawyers, funders, broadcasters and distributors.

However, there is a lot more to the Guide than a discussion of rights and permissions and I strongly encourage everyone to read it.  At the Ontario Creates discussion it was recommended that organizations break down the fairly large document amongst staff, each one reads a section and then come together in a sharing circle to discuss what they have read.  Or if you have no co-workers, like myself, you read it all and blog about an aspect where you think that you might have something to contribute.

Four key principles of the protocols are Respect, Responsibility, Reciprocity and Consent. I’m going to focus on Consent because that relates directly to chain of title. Full disclosure – I used to be a film, tv and digital media entertainment lawyer.  I am pretty familiar with the various rights that are needed to show chain of title for a film or television or interactive digital media production.  Under traditional ‘western’ ideas of chain of title, the producer must show that they have contracts that demonstrate ownership of the underlying rights or a licence to use the underlying rights and licences or permissions to use any and all copyright works that are contained in the final production (i.e. music rights, image rights, personality rights etc.).  This is an essential step for funders, broadcasters and distributors before they advance any money or make any distribution deals.

Copyright

While there are many Indigenous peoples, nations and communities within Canada, they share an approach to stories that is very different from western legal tradition. Stories are often communal and based on oral traditions. Some stories are sacred and have greater meaning than just as story.  In western legal tradition a communal story would be considered public domain under copyright (they are more than 75 years old) and therefore available to anyone to tell in any form. However, an Indigenous communal story is ‘owned’ by the community. “Knowledge is created and owned collectively, and responsibility for its use and transfer is guided by traditional laws and customs.”[1]

Here is an example from Duane Gastan Aucoin, Filmmaker:

 “We need to make sure that the rightful owners give the permission. For example, I used the Raven stealing sun story. I met with a Raven clan leader and he wanted to hear the story; and after I told him the story, as I know it, he gave his blessings because the telling of the stories was the same he heard as a child. I had to get permission from the Raven clan, who approved both the story and the final product. The Teslen have a traditional knowledge policy for stories, medicines or teachings, so I also met with heritage department who to ensure all the conditions are met.” [2]

As the copyright laws of Canada and global intellectual property laws are unlikely to change any time soon to take into consideration Indigenous concepts of intellectual property creation and ownership, a producer (or other participant in the project) may wish to add additional permissions to their standard checklist for Indigenous projects.  The Guide suggests that a producer may want to consider co-creation or co-authorship with members of the community but it may also be as simple as permission from the community and any other bodies who the community feels are relevant.  However, co-authorship will confirm rights of collaboration and approval which the Guide recommends in other parts of the document.

Story Rights

In the case of a life experience, western legal practice is to obtain the rights to tell the story from those who were central to the story.  The guide advises that there are events where the individual is not the sole ‘owner’ of the story as it happened to the community as much as to the individual.  Dr. Jenny Kay Dupuis, author of ‘I Am Not A Number’, a book about the author’s grandmother’s experiences at residential school, shared at the Ontario Creates Discussion that she had to obtain the consent of the community to tell the story as well as family members.  This again flows from the concept that rights are communal rather than personal.

Archival Footage

The Guide also offered a different perspective on archival footage.  Legal practice is to gain rights to the footage from the owner of the footage (e.g. NFB or CBC) however the Guide points out that there were situations where the appropriate permissions were not obtained in the first place when the footage was shot so any licensee would have to go to the community in question (even if the original individuals are no longer available) for permission as well as the owner.  Situations also existed where filming should not have taken place (e.g. sacred ceremonies) so the community should have the final say on whether the footage can even be licensed.  The NFB is currently undertaking a research project on global best practices on Indigenous archival footage so it is expected that the protocols in this area will be further developed shortly but in the meantime producers should ensure at a minimum that the necessary permissions were originally obtained and that the community in question consents to the reuse of the material.

Releases

There is a lot of advice in the Guide on rewriting releases to be easier to understand as well as culturally appropriate.  One suggestion is to create audio or video releases to account for differences in language or writing skills.  But a fundamental cultural difference is to consider that a producer is making a commitment to the individual rather than the individual is granting rights to the producer:

‘It was amazing to shift my idea around release form and look at it as a commitment that I am making to the person versus the other way around. It is vital to discuss the vision for project and then make that commitment to them. I do not own what they have done in perpetuity; the family owns it and it will go to children and grandchildren so it is important to spend time with that family getting permissions based on vision and determine how they would like to have influence.’[3] Helen Haig-Brown (Filmmaker)

One of the principles of the UN’s Declaration on the Rights of Indigenous Peoples is the right to Free, Prior and Informed Consent.  That means taking the time to discuss releases, understanding that there are many factors that must be considered before giving consent and many parties involved.  The process of obtaining releases will necessarily be more time-consuming than in a traditional film or television program.

It will be helpful if in time the industry could share examples of these new forms of releases, particularly as they need to balance the needs or expectations of funders and distributors regarding rights and chain of title.

As an intellectual exercise this community-based way of considering rights is fascinating to me but I recognize that it is more than that.  Understanding the Indigenous concepts of intellectual property rights is an important step in reconciliation. The bottom line is that if you are a Producer, Funder, Broadcaster or Distributor looking at a film, television or digital media project with Indigenous elements such as story or location, even if only ‘inspired by’, do not rely on your tried and true checklists for rights but dig deeper, using the Guide, to ensure that you have the necessary rights not just in accordance with the laws of Canada but in also accordance with the On-Screen Protocols.

[1]On-Screen Protocols and Pathways: A Media Production Guide to Working with First Nations, Métis and Inuit Communities, Cultures, Concepts and Stories, pg. 57

[2]ibid, pg. 25

[3]Ibid, pg. 41

Creative Canada – Sounds Good So Far

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You can see my summary of the relevant (to primarily tv) parts of the Creative Canada strategy at TV, Eh here.

For my interactive digital media people there are a couple of other interesting points to make.

If the s. 15 report from the CRTC triggers a public consultation, the terms of reference give producers the opportunity to explain how affiliated digital media are essential for discoverability of television programs.  That could potentially lead to changes in the Certified Independent Production Fund framework.  It’s a long shot but if the door is open you might as well try.  [more to follow in a future blog post about the new Bell Fund programs]

Heritage created a Creative Industries Council to be run jointly by Heritage and ISED, which will advise both departments on how to enhance collaboration between industries and allow the creative industries to grow.  IDM is all about collaboration and often straddles culture and innovation so there are opportunities there to influence policy to support IDM industries, depending on who is appointed to the Creative Industries Council and what it’s specific mandate is.

Creative Hubs will receive funding to support creative startups to help them create, collaborate and innovate.  There’s a lot of potential here for hubs that will support IDM startups.

As IDM could not access the old PromArts and Trade Routes programs, IDM producers should be eagerly waiting to see the details of the new Creative Export Strategy Fund to ensure that it covers IDM and the kinds of export activities that will enhance their success.

I guess we’ll just have to stay tuned.

P.S. Oh and a rant is required.  Phrases like ‘many of Canada’s federal cultural institutions and funding programs will have implemented concrete measures to make our creative industries more inclusive, by increasing opportunities for women’ drive me mental.  Diversity and inclusion is not synonymous with gender parity.  Could the government please get working on programs that encourage a wider diversity of talent, stories and decision makers so that our media is more reflective of our audience?

CRTC’s GLR Decision

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I gave a fairly polite run down of the Group Licence Renewal decision over at TV, Eh!  Here I want to focus on one particularly wonky part of the decision – data reporting – and why it matters.

For their GLR submissions, the CMPA, ACTRA, DGC and WGC commissioned Mario Mota of Boon Dog Professional Services to review the annual reports of the broadcasters and the applications and assess how the broadcasters had met their CPE and PNI CPE obligations and what it would mean for Canadian programming in general and PNI in particular if the broadcasters were granted their requested changes.  Mario did the best that he could but was stymied by inconsistent and inaccurate reporting.  The CRTC requires the reports but doesn’t review them.

The GLR decision includes requirements for more detailed reporting on a number of categories including original programming, Indigenous programming, Official Language Minority Community programming and women in key creative roles.  There will also be information bulletins to help broadcasters fill out the forms correctly.  There was no mention of a review or compliance regime.

The question, and why this matters, is will these new reporting requirements make it easier for stakeholders to assess broadcasters performance in spending money on and broadcasting Canadian programming?  As long as there is no review process the answer is no.  It looks like broadcasters will still be able to fill out (or not fill out with sections left intentionally blank) the forms any way they want.  When it comes time to review broadcaster performance again in four years and compare it to their promises, the independent production sector may still be doing it with one hand tied behind their back.

That leads me to ask: does the current Commission appreciate the role of the independent production sector in public hearings?  This I wonder.

The independent production sector pointed out that the broadcasters proposals on PNI CPE would allow them to spend less money on PNI.  That was dismissed.  The independent production sector argued that the definition of independent production was being eroded by broadcaster behaviour and as the need for an independent production sector is enshrined in the Broadcasting Act it needed to be protected.  That was ignored.  It pointed out that exhibition requirements in prime time are still relevant as that is still when most people watch television.  That was ignored.  It argued for some kind of protection for children’s programming since Corus is the major children’s broadcaster in Canada but with the removal of genre protection it can walk away at any time.  It argued variously for protections for Canadian feature film, documentaries, development and ensuring that CPE is spent on original programming.

None of these issues were mentioned.  Not reviewed and dismissed.  Nothing.  It comes across as if the Commission thinks that it has all the necessary information and does not need to hear the perspectives of those who create the content that is broadcast.  If this was true, it would undermine the public hearing process where all stakeholders have the opportunity to present evidence.  It is the independent production sector’s job to provide a different perspective than the broadcasters, based on different priorities.  It is the Commission’s job to weigh those different priorities and make decisions based on the public interest as defined in the Broadcasting Act.

I know that the Commission understand what its job is, but by not ensuring that the independent production sector has the tools that they need to do their job well (i.e. the data) and ignoring many of their concerns, it appears as if the Commission has taken sides.  It feels like engaging with the Commission at a public hearing is as useful as hitting your head against a wall.  After a while it hurts too much and you just stop.

The CRTC’s Differential Pricing Practice Decision – for us content people

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I posted the following over on TV, Eh!’s Wonk Report today:

Over here on the content side of things most of us are not familiar with phrases such as ‘zero rating’ and ‘differential pricing practices’ so might tune out of a CRTC decision titled “Framework for Assessing the Differential Pricing Practices of Internet Service Providers” but we shouldn’t.  Net neutrality is an increasingly important concept for content creators.

Let’s go through a few definitions first.

Net neutrality is the principle that all data on the Internet should be treated the same.  It costs the same to the user, it is regulated (or not) the same and it is delivered the same (i.e. no throttling of certain kinds of data).  So the video or the game that you create is not treated any differently from email or music or apps etc.

Differential pricing is the practice of offering the same content or services to consumers at different prices.  Examples are:

Zero rating:  the practice of not charging consumers for certain kinds of data.  That could be sports or all video or gaming.  That data would then not be counted towards the consumers data cap and would make that service more competitive.

Sponsored data:  an application provider arranges with an ISP to discount the data associated with its app.

The CRTC’s decision is to disallow these differential pricing practices (and any others that arise, based on a framework that has been developed to assess the practices) in order to maintain net neutrality.

In practical terms this means that immediately Vidéotron’s Unlimited Music Service, which excluded the data used by that music streaming service from certain mobile plans, was offside.  What it means for content creators is that ISPs cannot distinguish themselves on the basis of what content they have to offer – no exclusive access or zero-rated access to Netflix, or CraveTV or gaming.  No fast lane for CanCon (an idea that has been floated from time to time).   They can compete on price and speed and size of the data caps but not content.  Look at this quote from the decision:

“The Commission considers that any short-term benefits of differential pricing practices would be greatly outweighed by the negative long-term impacts on consumer choice if ISPs were to act as gatekeepers of content through their use of such practices.”

Gatekeepers.  Does that sound familiar?  This is why the decision should be of interest to content creators, particularly those who are moving away from broadcasters as gatekeepers to offer their content directly to consumers.  The Differential Pricing Practices decision means that you will not be moving from broadcaster to ISP as gatekeeper.  For digital content creators it means that the ISP cannot insert itself between you and your audience.

 

 

The CIPFs and Digital Media

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In my last post I went over the ‘permissions’ and ‘requirements’ of the CRTC’s new regulatory framework for Certified Independent Production Funds (“CIPFs”).  Since then you have heard a lot about the decision to reduce eligibility for Canadian productions from 8 points to 6 points. However, there is another issue that has been quietly bubbling away and now is generating a great deal of concern.

First, a little context.  In CRTC 2010-833, the CRTC amended the existing regulatory framework for CIPFs to formally allow CIPFs to fund digital media associated with television programming and to allow funding of standalone digital media provided that it was limited by a cap of 10% of the revenues received by a CIPF from a BDU.

“the Commission is of the view that there is little cause for concern over permitting the funding of new media projects linked to television programs as any new media content created as a result of such funding would still serve to support traditional television production. The Commission also concludes that the existence of a link to a television program will create a self-limiting process in that the producers and broadcasters will want to ensure that sufficient amounts remain for television production and development and will therefore make decisions in their own best interest. It will also be at the discretion of the funds whether they choose to fund program-related new media projects. As such, the Commission considers that a cap on such new media projects is not necessary.” [para 17]

So it was very confusing to read the new framework and see the phrase “the Commission will maintain a 10% limit on funding that can be allocated to non-programming digital content” [para 45] when there had been no cap on associated ‘new media’ to maintain.  Now, the definitions have been updated so that digital no longer includes digital-first linear video, but the result of the new wording is that all other digital media associated with a television program is now limited to 10% of BDU revenues.

Given the seriousness of this change, various organizations have been in touch with the CRTC to confirm that indeed this interpretation is correct. The potential consequence is significant as it would mean that most of the CIPF funding for digital media that both digital media and television producers have relied on will have to be re-allocated to  only television programming.  At a time when digital media is an essential element in discoverability this is a puzzling development.  Affiliated digital media drives audiences to the television, extends their experience with the television program and the broadcaster, builds both brands, and helps to sell the television show internationally.  Digital media can help documentaries extend their reach and their impact.  In some genres, most notably children’s, international buyers rarely license the television program unless there is associated digital media.

A few years ago I authored a study on co-production opportunities in digital media and in that study I learned that few countries around the world have any funding for digital media associated with television programming.  With the funding that we have, Canadians have become leaders in the field and are sought after for co-productions not just for their potential access to funding but also for the expertise that they have now developed.  Companies like Shaftesbury, Breakthrough, Secret Location, DEEP, DHX Media and Xenophile have developed international reputations as talented television and digital media producers and been able to compete in international markets because of the early and consistent support of the Bell Fund.  Is this not what the CRTC said it wanted?

Moreover, at a time when Minister Mélanie Joly is in the middle of the #digicancon consultation, the timing of limiting the ability of the Canadian broadcast system to leverage digital media to drive audiences to the broadcast platforms and to make foreign sales is hard to understand.  The CRTC seems to be taking two steps back while Heritage is trying to take one step forward.

The Bell Fund has asked for a transition period to be able to react to the new rules, as the decision was effective September 1, 2016.  They have also asked for an increase to the 10% cap, given the significant potential damage of such a small cap.  The CRTC has said that it cannot make amendments to an existing decision but instead it turned the request into a Part 1 application which is now a public consultation.  If you wish to comment on the Bell Fund’s request you can do so through the link on that page.  The deadline is November 28, 2016.   There is no guarantee that any changes will be made but at least there is a forum for industry feedback.

Full disclosure – I have a working relationship with both the Bell Fund and Interactive Ontario, the trade association representing interactive digital media producers in Ontario.  I am not speaking for either of them with this post but trying to explain for you guys what is going on – as I do.  If you would like more information you can reach out to either of those organizations.

You Can’t Always Get What You Want . . .

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I’m talking OTT and SVOD in Canada here so I’m not going to finish the quote. As mentioned earlier, I played around with Shomi during the free 30 day trial that I was entitled to as a Rogers subscriber. Then Bell Media was nice enough to give me a 30 day guest pass to the mobile version of CraveTV (since I’m not a Bell subscriber that’s all I could get). So I’ve played around a little, to the extent possible.

Here’s my problem. What I would really like to have is impossible either because of outdated business models, Canadian broadcast regulation or a lack of Canadian OTT regulation. I’m stuck.

I would like to have a service that flows seamlessly between my television and my iPad (my kid would also like it to work on her shiny new Nexus phone) so that I could switch platforms in mid-episode or at least keep track of which episode I’m on in mid-binge. This is possible with Netflix but not possible with Shomi and CraveTV because they are licensed separately (OTT being exempt from regulation and SVOD being fully regulated).

I would like a Canadian service that supports Canadian programming on all of its platforms. Shomi and CraveTV have to make a contribution to Canadian programming and provide a quota on their SVOD platforms according to VOD regulation, but have no such obligation for their OTT platforms. Netflix has no requirement at all.

I would like to watch the Golden Globes and know that I have access to the cool new shows like “Transparent” (Shomi announced during the awards that they will be carrying it, it is on OTT Amazon Studios in the U.S.) and “House of Cards” (on Netflix) without having to pay separate OTT subscriptions for each one. Exclusivity is a model that only frustrates the consumer in the Internet world.

I would like to be able to be a Rogers cable, internet and wireless subscriber (well, maybe not but I am anyway) and subscribe to CraveTV. CraveTV is only available to Bell, Telus and a few smaller BDUs and is unlikely to be available to subscribers of their competition. While Shomi and CraveTV are very similar in how they work, and both have lovely interfaces on the mobile platforms (though both were buggy on their web platforms), I would like to have the option to subscribe to CraveTV if I want to and not be locked in to Shomi because of my cable provider.

So, as a Canadian and a lover of television, CRTC regulation and the BDU business models are not working for me right now.

Netflix and Google – What are the Stakes at the CRTC?

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There’s been a lot said in the past few days about the fireworks between the CRTC and Netflix last Friday on the last day of the TalkTV public hearing. I’m going to add my two wonky cents from a content creator’s perspective. What’s at stake here for you?

First the backstory (you can find the relevant notices here). In 1999 the CRTC had a consultation on new media and as a result issued the New Media Exemption Order. In that order they stated that they had jurisdiction over new media broadcasting, they defined it, and they exempted it from regulation on the basis that exemption would foster growth and that would contribute to the objectives of the Broadcasting Act. This was 15 years ago so I think we can give them that one.

The Internet world moved quickly and there were repeated calls for the CRTC to revisit that order over the years but they did not until 2009. At that time the definition of new media broadcasting was expanded to include mobile, an undue preference provision was included and the CRTC included a provision that new media broadcasting undertakings would provide information on its activities as requested by the CRTC to allow it to monitor the development of new media broadcasting. In 2010 the CRTC decided that it would start by requiring regular reporting of new media broadcasting undertakings affiliated with licensed broadcasters. Don’t get me started on the Working Group that was struck but was completely ineffectual because of the broadcasters’ reluctance to provide meaningful reporting – yeah, I was on that one.

Then in 2012, after the 2011 fact-finding exercise on OTT services, the CRTC finally acknowledged that new media was in fact no longer new and changed the name of the order to the Exemption Order for Digital Media Broadcasting Undertakings (more commonly known as the Digital Media Exemption Order) and amended the order with four new sections: exclusivity, anti-competitive head start, obligation during dispute and dispute resolution. This was a recognition that digital media broadcasting had become real businesses with real business issues that needed to be regulated. For example, the exclusivity clause means that CTV GO cannot be offered only to Bell customers and Rogers Anyplace TV has to offer CTV as well as City channels.

So while the general public was ranting about how the CRTC had to be prevented from ‘regulating the Internet’, it very publicly was already regulating broadcasting services being offered over the Internet and mobile. The affiliated OTT services pushed back on reporting and dragged their feet on negotiations (e.g. Shaw customers had access to Global Go long before other BDU customers) but the regulation had no impact on foreign OTT such as Netflix and YouTube. [Note – they do benefit from CRTC net neutrality regulation but that’s a post for another day.]

Until this hearing. The CRTC invited Google and Netflix to appear and asked both of them for evidence to back up their statements that there was plenty of Canadian programming on YouTube and Netflix so therefore there was no need to regulate (or rather extend regulation). As newcomers to the CRTC they can be forgiven for not knowing that Blais is a stickler for backing up your big statements with facts but Netflix had the two week advantage and still came to the hearing with unsubstantiated statements. The Commission, and Blais in particular, got very angry due to the repeated refusal of Netflix to agree to deliver requested data without a ‘guarantee’ of confidentiality.

The Twitterverse went wild with accusations that Netflix was being disrespected but primarily by those who are not regular CRTC observers and do not understand the process. Netflix in fact was disrespecting the administrative tribunal that is the CRTC and its confidentiality process. I can’t do a better job than Dwayne Winseck did in his blog post so I refer you there for an explanation of the process and why Netflix was wrong.

It appears to me that as the past 15 years of CRTC regulation of OTT had no impact on Google and Netflix they ignored it. So now the CRTC is exercising its jurisdiction by requesting data and Google and Netflix have to decide whether to acknowledge the jurisdiction or fight it. Yes, the CRTC will likely grant confidentiality (they certainly have in less sensitive situations) so that really is not the issue. Google and Netflix do not want the next step of regulation. Netflix may already be dealing with this in Europe where they have to pay a Culture Ministry tax in France (an actual tax) if their annual earnings are more than 10 million Euros and the French government has either recommended or required (Commissioner Pentefountas requested clarification from Netflix) that the Netflix recommendation engine favoured French and European content. Netherlands has similar laws about favouring domestic content.

Canada is a huge market and an easy market for Google and Netflix. They have to weigh the potential aggravation and cost of complying with CRTC regulation to the revenue that they make from the Canadian market. As of publishing this post nothing has been posted publicly but CRTC staff may be reviewing it – I will update. I doubt that they will just walk away. If they do not, we could see Canadian television shows and features showing up in the recommendation engine and not relegated to the “Canadian” category that consumers have to go hunt for. And maybe, one day, we could see foreign OTT making a financial contribution to the Canadian broadcasting system that they are participating in.

[Kudos by the way to Denis McGrath for trying to explain all this to ‘free Internet’ folks one tweet at a time. Check out his feed at @heywriterboy for an impressive attempt.]

Update 6:10pm – Financial Post reporter Claire Brownell has tweeted:

 
The ball is now in the CRTC’s court.

More Talk TV – Drawing a Box Around It

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So as I’ve said before, this TalkTV consultation is HUGE. My big concern has been that there would be very little air time for programming issues as the Commission and the media focused on pick and pay and simulcast. Mainstream media has certainly gone in that direction already (with the notable exception of Cartt.ca, which has had a series of articles on almost every topic raised in the hearing.).

The Commission is now trying to draw a box around what will be discussed at the hearing by throwing out some proposals and asking for a focused discussion on those proposals. Stakeholders are free to talk about anything they want and in particular to float alternative proposals but this is a starting point.

The Commission has also re-opened the online public discussion forum and asked the public for their thoughts on the proposals now and over the course of the hearing. So instead of yelling at your computer screen at some of the things said at the hearing, you could post to the discussion forum.

Back to the proposals. They are extensive but they do limit the discussion from the 80 different questions in the original Public Notice. There are now 29 issues, though some of them have an Option A and an Option B. I find some more interesting than others, particularly those focused on Canadian programming. Here are a few to listen for in the oral public hearing (and note – @CRTCeng confirmed that the hearing will be available by audio and video feed so we’ll be able to see faces).

Simultaneous substitution: There are two options, either no more simsub or remove simsub from live events such as the Superbowl or Oscars. This is interesting because while a few stakeholders expressed concern over the impact of simsub on programming schedules, few came right out and asked for simsub to be rescinded. There was a general recognition that while it might not be perfect, simsub revenues are hugely important to the health of conventional broadcasters and by extension to their level of expenditure on Canadian programming. Apparently there aren’t even that many complaints about not being able to watch US commercials during the Superbowl. Seriously – if you really want to watch them, they’re almost immediately available online.

Redefining Broadcasting Revenues: The proposal is to include revenue from programs offered online in the base for calculating CPE. Broadcasters would then also be able to count expenditures from programming created for online platforms as part of their CPE. The CRTC sees this as a way to encourage made for digital content but it is also a huge potential first step towards looking at the broadcasting system as a whole and not its regulated and unregulated parts. Given that no proposal included a reference to extending regulation to OTT, this could be the CRTC’s first step towards platform agnostic regulation. Or it could be an attempt to close a loophole as its been widely speculated that since broadcasters have the ability to allocate revenues and expenses between regulated and unregulated platforms they are doing so to their advantage. I expect a lot of ‘oh no, you can’t make us do that’ and ‘oh no, we just can’t identify our revenues/expenses that way’ and of course ‘but we don’t make any money from online platforms and we are incapable of proving that’ and other such arguments heard before.

Programs of National Interest: First there is the positive statement that PNI will be maintained (sad that this had to be said). Then, that children’s programming will be included. There has been a decline in commissioning original children’s programming and this is the CRTC’s response. Expect to see discussion about whether this will be effective or whether there also needs to be CPE sub-quotas for children’s programming (as well as feature films and long form documentaries).   Just because you CAN include children’s programming in your CPE does not mean that you will, particularly if you are a corporate group without any children’s services and have been allowed to walk away from children’s programming on your conventional services (*cough* Shaw *cough* Rogers *cough*).

Programming requirements: An interesting proposal is to eliminate exhibition requirements during the day but maintain them for prime time. This will mean no incentive for Canadian daytime talk shows, particularly on conventional stations that can also simulcast US daytime talk shows or soaps. Do people care? This is one where I’d be interested to see if there are any responses on the online discussion forum. How much do people want their “The Social” and “The Marilyn Dennis Show” or can they live with “The View”. From a policy perspective, it’s saying that the Broadcasting Act can fulfill its goal of providing a diverse range of programming to Canadians through prime time programming alone. I’m not sure that’s what was intended. I’m also not crazy about getting rid of any exhibition requirements while scheduled programming is still important to Canadian audiences. We are not yet in an on demand world.

Another programming requirement proposal is to extend CPE requirements to all licensed services. Currently they are limited to conventional services, Cat As and Cat Bs with subscribers of 1 million or more. CPEs would be set at licence renewal and it is assumed that those Cat Bs with low subscriber bases or niche audiences would have lower obligations than the other services. They would also be part of the corporate group, if they are owned by one of the large companies, and could help to amortize costs. This could mean more money for CPE generated by services that air little Canadian programming because of their conditions of licence. If this extends to independent Cat Bs (and it’s not clear from the wording), I can see them having more of a problem than the Cat Bs in corporate groups.

Genre protection: The proposal is to eliminate genre protection and nature of service definitions. If this goes through then the Commission will overturn its recent decision on OLN and you’ll get your Whisker Wars back because services will be able to morph into anything that they want, whenever they want. I find this an odd proposal given that they just came down hard on OLN and before that issued warnings to G4TechTV and OWN and others. There are a number of reasons to advocate for at least enforced nature of service definitions both for diversity of programming (i.e. to avoid all services chasing the same audiences) and clear branding in a pick and pay environment.

Local programming: There were a lot of submissions which identified the need to re-examine the funding mechanisms for local programming and in particular to bring back some form of LPIF. The Commission apparently doesn’t want to go down that road (it is always very reluctant to reverse decisions) so instead they are suggesting that the expense burden on local services should be lightened by removing their obligation to maintain transmitters. Given how many stakeholders advocated a more direct funding regime, it could still be a topic at the hearing.

Finally, the Commission proposes that all of these rules would come into place December 15, 2015.

It’ll be interesting to see if the Commission’s attempt to draw a box around what it wants to talk about will actually limit topics or just add new ones to all the things that stakeholders want to talk about. This could be the last big hearing for some time so everyone wants to get their kick at the can (using a very old analogy, which seems quite wrong in this context). There’s also the fact that some of the decisions about programming and in particular tweaks to the Group Licence Policy have to be made now in order to implement them in the 2016 licence renewal process.

This is going to be a long hearing.

 

 

 

 

 

 

 

 

 

 

Rogers Licence Renewal

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When the Rogers Licence Renewal decision came out last week (July 31, 2014) it didn’t create much fuss. That’s partly because it is the middle of summer and partly because it is a short term licence renewal – many of the issues will be addressed again and perhaps in more depth at the Group Licence Renewal in 2016.

As a reminder, Rogers had an earlier licence renewal because at the time of the Group Licence Policy and the group licence renewals, Rogers was still a group of not yet national conventional stations and a few specialties but had already started buying up what they needed to become a third diversified group (Corus is part of the group licensing framework but with almost no conventionals so is a different beast altogether). Rogers wasn’t a group in 2010 but they are now.

Being an official group (they were sort of a group before in the way that they were licensed but not fully) puts Rogers on the same footing as Bell, Rogers and Corus going into the Group Licence Renewals. That’s important.

There are a lot of picky little details in the licence renewal but I would like to highlight a few things that caught my attention.

There were a lot of concerns about Sportsnet 360 being included in the group. It is not a Category C (news and mainstream sports) service but a Category B so there is no regulatory reason to exclude it. There were concerns expressed at the hearing that Sportsnet 360 combined with CITY broadcasts of NHL games would allow Rogers to spend all of their non-PNI CPE on sports and specifically NHL hockey. The Commission in the decision advised that they shared stakeholders concerns but they didn’t think much could be done to change programming plans during the coming two years so rather than impose regulatory safeguards they would instead require detailed reporting and monitor the situation. So the message is ‘don’t do what we’re all afraid you’re going to do or we will regulate’.

The level of reporting required is also interesting in a wonky way. Rogers has a multiplatform deal for the NHL rights and that means an ability to deliver programming across multiple platforms but also an ability to allocate revenues and expenses across those platforms. There is huge opportunity to game the system here and the Commission knows it. They have asked not only for detailed reporting of NHL revenue and expenses across regulated and unregulated platforms but also details on how the allocation formulas were arrived at.   The reporting requirement is an enforceable condition of licence and not one of those ‘expectations’ that can be ignored.

Rogers had asked for a lot of concessions on their ethnic programming on OMNI which basically would allow them to air a lot less Canadian and ethnic programming on the basis that the business model was broken. You may remember in the public hearing when Commissioner Shoan repeatedly asked intervenors if they watched third language news online because that was Rogers’ argument for asking for a reduction in prime time commitments. The answer was universally no. So Rogers didn’t get most of the concessions requested. Their Canadian exhibition requirements were slightly reduced but only to bring them in line with the exhibition requirements under the Group Licensing Policy. There are a few other reductions but in the interest of harmonizing the requirements across the OMNI stations. They were once individual services and as a result each had different conditions of licence.

Then there is my favourite part. For the third time Rogers tried to expand the interpretation of OLN’s nature of service to allow it to broadcast programs that have nothing to do with outdoor adventure. You may remember the first time when they tried to argue that “Lost” was outdoor adventure and they should be allowed to use OLN to air more US prime time dramas like “Lost” in second run. In the second attempt some of us cut and paste our arguments from the first intervention for the second intervention because so little had changed. This time the argument was that “Baggage Battles”, “Operation Repo” and yes, “Whisker Wars” (really – it’s a show about competitive beard growing – I kid you not), should all be part of a more vaguely interpreted outdoor adventure nature of service.  Not only did the Commission disagree strongly but they gave Rogers till January 31, 2015 to fix their schedule. This short time frame came in the same decision where the Commission said they understand how long it takes to change programming schedules so they didn’t think Rogers would fill its schedule in 2015 with hockey.   Finally, the requirement to report by January 31, 2015 to demonstrate how they have fixed their schedule is an enforceable condition of licence.

This nature of service decision is also interesting because it suggests that at the Talk TV hearing in September, the Commission is not likely to drop nature of service definitions as requested by some broadcaster intervenors.  Arguments have been made that enforced nature of service definitions are essential to diversity of programming and it could be that the Commission is open to this argument.  We will see.

Why am I excited about the enforceable conditions of licence in this decision? In the past these sorts of provisions would be ‘shoulds’ and were often ignored or half-fulfilled.  As a broadly written ‘must’ if the broadcaster fails to perform the required activity they can be called to a show cause hearing to give it the chance to explain why they didn’t do it and why the CRTC should not issue a mandatory order (enforceable by Federal Court) or any number of other harsher penalties such as refusing to reissue a licence. As Rogers is up for renewal in only two years they are not going to want a show cause hearing with licence renewal in question. I am hopeful that we won’t have a ‘History replaces CSI: New York with NCIS’ situation based on how the decision has been worded. We may not have a NMBU reporting situation with the NHL reporting – though I have to admit that I’m less hopeful with that one. Broadcasters do have a long history of fighting detailed reporting requirements.