The Netflix – CRTC battle has generated considerable attention, but Netflix is not alone in contesting the CRTC’s authority to regulate Internet video services. As I suggested in a post yesterday, Google has adopted a similar position, refusing to provide the Commission with all of the information it was seeking. While the Google and Netflix submissions have oddly not yet been posted by the CRTC (all others have), the Globe obtained a copy that confirms Google’s position that it believes it also falls outside the Broadcasting Act. According to the report (also not online), Google declined to provide some requested data, noting that “Google does not publish or otherwise disclose this commercially sensitive business information.” The company adopted the position that its disclosures were voluntary and that it is not part of the Canadian broadcast system.
The Google position is notable because it is presumably not based on the question of presence within Canada, since Google maintains a significant Canadian presence. Rather, the core challenge will likely focus on whether a service such as Youtube (which once went by the slogan “Broadcast Yourself”) can properly be characterized as broadcasting for the purposes of current Canadian law.
Since Google appeared on the first day, it is easy to forget that its appearance before the CRTC was also marked by tension with the Commission. For example, there was this exchange between CRTC Chair Jean-Pierre Blais and Google’s Jason Kee:
THE CHAIRPERSON: Now, in your submission you’re arguing that Canadians are very successful in the online environment, both in terms of creating the content and exporting it, in a sense, beyond the borders, yet I seem to find no evidence or research that supports exactly what kind of Canadian content or content made by Canadians we are talking about. I find that a bit surprising from a company that prides itself to being the information and web search expert.
MR. KEE: It’s precisely for that reason that at least I provided some of the anecdotal examples of a few of the success stores that we have seen on the platform. In the online environment it’s actually not unusual that detailed information like that is actually not disclosed, largely for competitive reasons, which is why it wasn’t included.
THE CHAIRPERSON: Our rules allow for filing information in confidence. Are you saying that you have that information?
MR. KEE: I’m saying that I would have to have internal discussions about the availability of the information.
THE CHAIRPERSON: What do you mean by that?
MR. KEE: I would have to have a discussion internally about whether or not that information could be obtained.
THE CHAIRPERSON: That doesn’t really answer my question. Is that information available in terms of the amount of content available that is of Canadian origin, let’s say on the YouTube offerings?
MR. KEE: Internally we are able to determine where the content was uploaded from, which is what we are defining as Canadian content for the purpose of this discussion. As noted in my submission and in my presentation, that identifying something as Canadian content in the sense that the CRTC uses rules to determine it or, say, for a CAVCO scale for example, is not information that we have.
THE CHAIRPERSON: But you are able to identify how much of that content has been uploaded from a Canadian site or a Canadian location?
MR. KEE: Correct.
THE CHAIRPERSON: Whether or not it is 10 out of 10 or 9 out of 10 within the traditional regulatory network — regulations; is that correct?
MR. KEE: I’m not —
THE CHAIRPERSON: Well, you’re able to tell me you have information on where that audio-visual content is being posted; is that correct?
MR. KEE: Where it’s being uploaded from, correct.
THE CHAIRPERSON: Would you be able to provide that between now and the 19th of September?
MR. KEE: I would have to have internal discussions, with respect, because we don’t customarily disclose that kind of information.
THE CHAIRPERSON: This is a regulatory process and I can understand that you don’t necessarily share information with the public-at-large, that’s why we have rules and undertakings.
MR. KEE: And I can undertake to have a discussion internally with respect to the provision of that information.
THE CHAIRPERSON: And I guess if you don’t provide it, we can draw the conclusions that we can from that lack of co-operation.
MR. KEE: It wouldn’t be intended as a lack of co-operation.
THE CHAIRPERSON: Whether you intend it that way or not, it may be perceived that way.
So will you be able to undertake to come back to us by the 19th of September on that issue?
MR. KEE: I can certainly come back with a response.
CRTC Chair Jean-Pierre Blais did not raise a regulatory threat as he did with Netflix, but the reference to drawing conclusions on Google’s lack of cooperation was a clear shot across the bow. In light of those comments, both Google and Netflix appear to have concluded that they will cooperate voluntarily where possible, but are prepared to challenge the CRTC’s jurisdiction over their online video services. With two of the biggest Internet companies in the world disputing the CRTC’s authority to regulate, the Commission may well head to the courts to either enforce its perceived powers or simply ask the courts by way of reference to determine whether the Broadcasting Act applies to Internet video services.
The chairman sounds like he’s a small child in a snit, putting words in the mouth of the witnesses.
I’m confused as to what CRTC’s need for this information is in the first place. If, let’s say, 10% of all YouTube content is uploaded by Canadians, then what? One cannot force Canadians to upload more content if this ratio is too low. As for Netflix Canadian content, they can make available dozens of shows, but why bother if nobody watches them? Maybe Canadian broadcasters should concentrate on producing shows that people actually want to watch. Fortunately, we do have many good Canadian shows, but unfortunately, there are many more good non-Canadian (i.e. American) shows. CRTC, Bell and Rogers can shout about Canadian content all they want, but it will not change this indisputable fact.
The regulatory threaths for Netflix were due to Netflix stating they did not trust the CRTC to keep information confidential.
Google essentially said they would respond as best they could, but couldn’t make garantees.
The end results may be the same, but Google did not publicly insult the CRTC’s ability to keep information in confidence, so they didn’t cause steam to come out of Blais’ ears.
From the transcript, Netflix had been told that they would *not* have their data protected, the chairman thought they would and got mad, and then appeared to back out of making any promises. To my ear, it sounded like he’d forgot something, and got mad when reminded (;-))
Netflex did NOT state that they didn’t trust the CRTC to keep information confidential.
From the video:
Corie Wright, Netflix Inc.’s global public policy director:
“Mr. chairman can the panel guarantee confidential treatment of that information?”
CRTC chairman Jean-Pierre Blais:
“You are not entitled to a special treatment, we are treating you like every other applicant, intervener, person who appears before the commission.”
Watch it:
http://www.cbc.ca/player/News/TV%20Shows/The%20National/Canada/ID/2524254918/
She simply asked if the panel could guarantee confidential treatment of subscriber information and the arrogance and disrespect coming from the CRTC chair made him look ignorant.
If the CRTC had any respect at all for consumers the proper response would have been ‘yes’ instead of crowing off on her.
I smelled a rat when the CRTC came out with the logo: “Let’s talk TV”
The CRTC has been talking TV since the 1960’s and this nonsense has nothing to with last century television.
This man’s behaviour was embarrassing to watch.
Netflix can and has been negatively affected by ISPs. All major TV providers in this country are also major ISPs and their former executives figure large within the CRTC. It is very reasonable for Netflix to be completely untrusting of the CRTC and is, IMO, to their credit that they even agreed to show up.
Oh bother, “regulatory capture” strikes again.
The term refers to the persons being policed taking over the force that’s supposedly policing them. See http://www.tobinproject.org/books-papers/preventing-capture for a book on preventing it.
This is why I much prefer the simpler form of regulation called “separate ownership.” Don’t let the ISPs own content providers and vice versa.
Strongly agree: no organization with monopoly (or oligopily) power should be permitted to own another business.
@JF,
Not sure if you picked up on this, but I think Blais tried to un-nerve some of the players during the hearings. It was also seen right at the very start w/ Bell when Blais asked about Wade Oosterman’s title and function. Unlike Ms. Wright, Oosterman was like a deer caught in the headlights and was stunned.
This threw off his game and he was stumbling and fumbling.
Ms. Wright is a shark. She didn’t flinch, kept her cool, kept her composure, and even had some witty come-backs.
In some ways, I think some of his game was to throw them off a bit from what they prepared for. This didn’t work with Ms. Wright, another lawyer, who is likely use to the game.
Review the first 10 minutes of Bell’s questioning when Blais starts. He threw them right off. His game was good, but it didn’t work with everyone.
Seriously? WTF does the number of uploaded Canadian videos or Netflix subscribers have to do with the CRTC’s Let’s Talk TV? NOTHING!
Canadian broadcasters have lived too long in the walled garden and seem to think their content oligopoly will last forever.
With players like HBO considering Internet streaming subscriptions, I think everyone including those fat and lazy broadcasters know the future DOES NOT include them and their sorry examples of Canadian content!
Just the other day, a Zulu warrior from the Natal Province of South Africa posted a video on google using a US based VPN/proxy server about the fighting capabilities of Canadian soldiers in Iraq.
Is that Zulu, South African, Anglo-saxon, African, US, Canadian or Iraqi content, Mr. Blais?
The Cdn broadcasters are NOT regulated on-line. They could have started Show-mi etc before Netflix arrived here. They would have a substantial lead today. They didn’t because their executive bonuses are based on 1-2 year share performance of their stock not 5-10 years down the road.
So Mr. Blais, can you hamstring the frontrunner so we can catch up? (I have fallen and I can’t get up!).
“The regulatory threaths for Netflix were due to Netflix stating they did not trust the CRTC to keep information confidential.”
Seriously, what evidence do we have that the CRTC even has a clue about protecting any data, or if it even has any genuine desire to protect it?! Their track record so far hasn’t been very impressive (to state it charitably).
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One of the funny things is that the “country of upload” identification would erroneously label any ‘pirated’ American content as Canadian if uploaded from Canada. Now in the cases of blatant profit-reducing material such infringement is readily enforced, but is fair less consistent in enforcement the cases of older content, for example content produced before 1990-95.
So if a Canadian uploaded or merely re-uploaded non-Canadian content or at even someone merely using an IP address that is Geo-located as a Canadian network (IP) address, it would erroneously be identified as Can-con. This is counter to the very interests of the Canadian cultural and artistic communities, that the CRTC appear to be trying to protect. While useful for estimation, it is misleading to mistakenly identify that content as being the least bit Canadian either origin or creation by IP address. Never-mind that the CRTC has no mandate in regards to promotion or distribution of not-for-profit or non-professional content such as the majority of YouTube content uploaded by individual Canadians.
I wonder whether it is fair to say the CRTC chair, Jean-Pierre Blais, perhaps with the encouragement of James Moore [1][2], appears to have adopted the debating style common amongst conservative politicians, of polarizing discussions as a high-risk gambit to gain acceptance, versus a more conciliatory approach consistence with the CRTC mission and principles.
[1] http://dwmw.wordpress.com/2014/01/09/arms-length-or-strong-arming-the-crtc-minister-moores-mandate-letter-to-crtc-head-jean-pierre-blais/
[2] http://www.thewirereport.ca/sites/thewirereport.ca/files/05letter.pdf
One very legitimate reason for the cautious attitude of Google’s Jason Kee, it is actually possible that logs with the network (IP) address for uploaded is not necessarily retained long term making such a request unfeasible. Content is organized by accounts, which is deemed satisfactory for enforcement purposes in the majority of copyright infringement cases, not necessarily by original IP address.
It’s not like Bell or other Canadian broadcasters or telecoms haven’t been permitted to not answer CRTC queries if they are onerous or unable to compile the answer, and perhaps a few cases where it might not be quite so onerous as presented. I believe the hearings on E-911 have a few cases of that.
Does anyone know what the acronym CRTC stands for?
I think it is clear, that they are trying to expand their mandate to include internet based streaming services. They are trying to give themselves a job by rationalizing that Canadians are producing a large enough portion of the content to give them cause to be a regulator of those activities.
We have come a long way since the days of chopping up radio frequencies and granting licences to a select group of companies. In the old days, pirate radio stations were everywhere. The CRTC ran them out and created a state controlled monopoly in broadcasting with the power to shut down any broadcaster that did not tow the line.
Services like YouTube have once again given individuals the power to create their own content and broadcast channels. This means they may actually be able to express an opinion that conflicts with the Canada regime. Add to this our copyright regulatory agency SOCAN and what you have is state control and distribution of information.
This is the kind of thing we expect from heavy handed Communists countries like China. I am ashamed to call myself a Canadian.
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If Stomping Tom Connors were alive and starting out today, he would not need the CBC/CTV or the radio stations for his tunes, because the internet sites here and elsewhere, are there for all, regardless of their origin country or their culture.
Canadian culture is not going to disappear because of online services. The availability of the internet makes the same Canadian culture more accessable to the world.
The net does not need to be regulated. Democracy prevails over fascism.
This process is flawed and it becomes more obviously flawed with each passing question by the CRTC. In the near future all content generated within a nation will be online in some location, and as it is generated, it will be stored there. The current broadcasters and consumers will become one and the same, and THIS has the incumbents fearful.
The broadcaster have in place a system where they can receive remuneration and act as gatekeepers with the appearance of providing Canadian content , when in reality they just want to keep the money rolling in.
The population is able to bypass the controls put in place by the broadcasters and act as their own programmers and schedulers and broadcasters, thus removing the incumbents from their position of middle men. Every cloud service is now a broadcast medium, every provider of content is a broadcaster, the middle men have been replaced long ago, no longer is it the Rogers /McLean Hunter/Shaw/Bell it is the ISP’s that are the middle men the carriers of the content and that’s why they are trying to control that space also and squeeze out the ISP’s who saw the opportunity back in the early 90’s to provide connectivity to the internet and were the initial pioneers of the Information Highway, granted Rogers had the Wave network in 97, but prior to that there was no rogers its was local Dial up.