They say politics is the art of the possible. And so, more than a decade after it became apparent that internet-based streaming would bypass Canadian-content rules, the federal government has finally fought off the skeptics and naysayers to regulate foreign services. The Online Streaming Act, the first update of the Broadcasting Act since 1991, became law Thursday.
For those who have followed this file since Netflix first entered the Canadian market in 2010 and rapidly signed up a million subscribers, it is hard to know what’s more amazing: that it took this long or that it even happened at all.
It’s easy to demonize content regulation for political gain – according to Conservative Leader Pierre Poilievre the government is now engaged in censorship – but much harder to explain the intricacies and injustices of international entertainment markets. Many opponents of the new legislation seem far more concerned about hypothetical government-mandated algorithms that might be used to boost Canadian shows or songs than the actual ones currently used by Big Tech. So kudos to Minister of Canadian Heritage Pablo Rodriguez for standing his ground, working Parliament and finally succeeding where two Liberal predecessors (Mélanie Joly and Steven Guilbeault) had valiantly tried but ultimately failed.
The simplest justification for the new act is economic: Foreign streaming services, which take millions in subscription revenue out of the country, should be required to invest in local production. The more complex reasoning is about the benefits, not merely economic but also social, that accrue to Canadians through the production and consumption of entertainment that has been made at home. For all the delights of Hollywood and global cultures, for all the importance of both escapism and human empathy in the arts, you do not want to be a place that relies exclusively on cultural imports, a place whose citizens are always looking through windows at other people and other lands. Think of it as an arts version of eat local.
Debates about what cultural regulation can achieve date back years and have only grown more intense with the rise of internet distribution. YouTube had been available globally for five years when Netflix arrived in Canada in 2010; Spotify followed in 2014, Apple Music came in 2015 and Amazon Prime Video the following year. It was clear from the earliest days of these streaming services that rules written to cover cable and terrestrial radio and television services would gradually become obsolete.
In those first years, discussion tended to focus on whether conventional broadcasters could still be required to uphold Canadian-content regulations when their international internet-based competitors didn’t. In legal terms, the newcomers were covered by the new-media exemption offered by the Canadian Radio-Television and Telecommunications Commission (CRTC) in 1999; in practical terms, no one could figure out how they might be drawn inside what is sometimes called Canada’s walled garden.
That is what has changed, and perhaps in that regard, the wait has benefited the legislators as Europe and Australia have worked away on the same problem. The new act will end the exemption and leave the CRTC to figure how much money the newly licensed online services will be required to spend on Canadian programming – and how they might promote it.
Canadian audiences, including peevish Poilievre and anyone else equally incensed, can still watch as much American, European or Asian content as they want, but more Canadian options should become available too. Nobody, in the internet age, is forcing anything down anybody’s throat, although Netflix did recently remind me that I haven’t finished season 5 of The Crown.
The principle that the new act upholds is one of fairness: If Netflix or Disney+ or Spotify are going to take hundreds of millions in revenue out of Canada, they must also contribute to the production of domestic content. Just as the reluctant CTV, Global and City have done for many years – reluctant because it has always been more profitable to resell certified American hits to Canadians than to take the risk of making homegrown shows.
With the international success of shows such as Sort Of, Kim’s Convenience and Letterkenny, and the continuing growth of international television and film production in Canada, it may seem like that kind of simplistic Hollywood import business is withering north of the border. Perhaps international streaming services will easily outstrip their new requirements – even if those are less than domestic services are asked to meet.
That is one of the criticisms that has been made of the new act, that it applies more stringent definitions of domestic creative talent to Canadian broadcasters than it does to foreign online undertakings. There is also much debate about whether it genuinely exempts user-generated content, a prime concern of music creators.
The CRTC will be deciding these issues; Rodriguez has made clear that he is not getting down in the weeds. But no doubt, in months to come, the rest of us will be lost in them, debating this directive or that regulation, what’s Canadian and what isn’t.
In the meantime, let’s celebrate a victory for the possible.