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Anti-piracy group under fire for website-blocking proposal

FairPlay Canada was founded in part by BCE-owned Bell Media, which broadcasts the series Game of Thrones on CTV.

HBO/BellMedia

A major media coalition's plan to put a halt to online piracy is under fire.

In the week since it was submitted to the federal broadcast watchdog, a proposal from FairPlay Canada – a consortium of the country's largest media companies and creative industry groups – has prompted nearly 4,000 comments on the Canadian Radio-television and Telecommunications Commission's website.

Comments include: "Corporations should not be creating legislation to protect their private profits on infrastructure that everyone uses;" "Choosing who to shut down is a slippery slope to start on;" "I am against the censorship of the internet, in any form."

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These are the criticisms that Bell Media – which played a major role in launching the FairPlay initiative more than a year ago – and its fellow coalition members face as they attempt to convince the regulator that such measures are needed to contain the threat posed by websites that distribute content they don't own.

"Would you like them to continue to make Game of Thrones? Who's going to do that if you decide to watch it with no deference to economics?" Bell Media president Randy Lennox said in an interview, addressing critics of the proposal. "The revenue is down in the hundreds of millions of dollars to feed the creators who make the content. ... These are real numbers. People think these are successful corporations, so they don't exactly garner empathy. But we deal with dozens of producers that are relying on us largely for their livelihood."

FairPlay, whose signatories also include Rogers Communications Inc., Quebecor Inc. and a host of industry groups, has asked the CRTC to establish an independent panel that would review requests to block websites. If this independent organization found a website to be engaged in piracy, it could then order internet service providers (ISPs) to block access, but those providers could not choose to do so arbitrarily: Such decisions would be subject to appeal both through that regulatory group and through the courts, according to Barry Sookman, a copyright lawyer and partner at McCarthy Tétrault LLP, which prepared the legal argument in FairPlay's submission.

Taking the stage at an industry conference in Ottawa on Friday, Mr. Sookman argued that the principles of net neutrality apply only to the free movement of legal content online – not to the right to piracy.

"The net neutrality argument is simply a red herring," he told the audience at the Prime Time conference, which is organized by the Canadian Media Producers' Association, another member of the coalition.

But opponents have raised concerns about the potential for the overreach. Michael Geist, Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, called the proposal "ill-advised and dangerous" in an opinion piece in The Globe and Mail last week. He also pointed to a CRTC statement, during a 2016 case involving a plan to block unlicensed gambling websites in Quebec, that the law governing the regulator only allows for website blocking under "exceptional circumstances."

Bell Media has not always seen regulatory intervention as the best avenue to address unsanctioned access to TV content online. In 2015, Mr. Lennox's predecessor, Mary Ann Turcke, said it would be a "cop out" to ask the government or the CRTC to solve the problem of VPNs, or virtual private networks that make internet protocol addresses appear to be coming from the United States. VPNs are used to gain access to services such as the U.S. version of Netflix, which differs from the Canadian version because of content rights agreements. VPN use constitutes "stealing," Ms. Turcke said, but added the solution was for the industry to promote behavioural change.

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"We, Bell Media, we, the industry, need to make our content more accessible," she said at the time. "Viewers are demanding simplicity. And they will seek it out."

Bell's mindset has now shifted.

"Because we are a regulated community, we need our partners, the government, to join us in partnership to fight a common enemy," Mr. Lennox said, adding that the industry's attempts at behavioural change are not enough on their own. "Her statement is absolutely right that we need to change behaviour. … We are doing our best to change behaviour in the way we provide content."

Like other companies, Bell Media has been pursuing strategies to follow audiences who are either migrating away from traditional TV entirely, or slimming their TV habits in favour of streaming content. During the Super Bowl this weekend, the company advertised the launch of a new mobile app called Snackable TV. Unlike Bell's online streaming service CraveTV, Snackable is geared specifically toward viewers on mobile devices with short-form video content.

Bell Media saw consistent declines in advertising revenue in the first nine months of last year, according to parent company BCE Inc.'s most recent earnings report, in November. TV audiences have also been in decline.

Mr. Lennox believes those are "short-term" setbacks, and that Bell can draw advertisers back by making its shows more accessible – placing an episode on Crave right after it airs on TV, for example, launching new mobile offerings, and building audience followings on social media – and then offering bundles of advertising that combine TV and digital sales. "CTV in 2018 is cool," he said, "because we are putting it on so many platforms simultaneously."

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Broadcasters have been touting such bundled ad sales for a number of years, including at their annual "upfront" presentations to advertisers. The struggle is to continue to attract audiences in a broader competitive landscape that includes not just other TV networks, but also digital streaming giants that are spending billions of dollars on content production each year.

But on top of legitimate streaming sites such as Netflix, the industry is struggling with its content being stolen and redistributed online, Mr. Lennox said. In his previous role at the helm of Universal Music Canada, he had a firsthand view of how piracy affected the music industry – and believes TV now similarly must grapple with the issue.

"If we can get the government to align with us, we'll see a long-term victory here," he said. "The media business in this country is not in decline. It's just under attack."

Editor’s Note: An earlier version of this story incorrectly identified Telus as a FairPlay signatory.
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