With passage of C-11 ‘Canadian content’ definition still to be determined: Dentons’ Margot Patterson

The legislation sets out a broad framework, and the details will take shape following consultations

With passage of C-11 ‘Canadian content’ definition still to be determined: Dentons’ Margot Patterson
Margot Patterson, counsel at Dentons

With the passage of the Online Streaming Act, the Canadian Radio-television and Telecommunications Commission (CRTC) have a broad framework to regulate online streaming and on-demand entertainment services. But what the regulatory obligations will look like and who will be regulated and exempt is still to be determined.

The legislation received Royal Assent on April 27. Next, Cabinet will issue a policy direction to the CRTC to guide its implementation of the Bill. The CRTC will consult with stakeholders and the public before it proceeds to make the regulations and orders.

The CRTC may decide to exempt some services, or classes of services, from regulatory obligations, says Margot Patterson, counsel at Dentons.

“There is a lot at stake for online services,” she says.

Patterson practises in the firm’s intellectual property; communications law; and media, entertainment, and sports practice groups. Her practice involves broadcasting, copyright, and advertising and marketing, and she has been advising online streaming and on-demand services on the Online Streaming Act, she says. Before joining Dentons in 2010, she was general counsel at the Canadian Association of Broadcasters.

The first major reform to the Broadcasting Act since 1991, Heritage Canada said the aim of the legislation is to require streaming services to contribute to the creation, production, and distribution of Canadian content.

“One of the most important sets of regulations will be those that define what Canadian content is,” says Patterson.

The Act sets out factors that the CRTC must consider when defining Canadian content, but there is still an opportunity for stakeholders to advance arguments on the nature of that definition.

Some believe that a more flexible definition than has existed in the past is appropriate, she says, and others believe that the definition should more directly reflect Canadian culture by featuring recognizable Canadian stories.

The bill was designed to provide the CRTC with a broad framework with which it would use its “deep expertise” to make important decisions along the way, says Patterson. The framework is “not extremely granular” but defers to the CRTC on how to implement the policies and priorities in the act and determine the obligations which will be attached to various services, she says.

Ottawa’s aim was to “level the playing field” between online services and traditional broadcasters, says Patterson.

The legislation will apply to both audio-visual content and exclusively audio content, such as podcasts.

"Today, we are standing up for our stories, our artists, our producers and our creators,” said Minister of Canadian Heritage Pablo Rodriguez. “We're standing up so that Canadians have even more opportunities to see themselves in what they watch and listen to.”

“With this legislation, we are ensuring that Canada's incredible talent has a bigger and brighter stage online,” said Rodriguez. “They tell our stories, they make our voices heard, they contribute to our economy, and they make our culture what it is: strong, diverse and unique. Today, we stand up because our stories matter and our artists who tell them matter.”

Heritage Canada said that the Online Streaming Act is one of three legislative projects which form a key part of the government’s “digital agenda.” The other two are the Online News Act and a bill on online safety which is still in development.

Much of the controversy surrounding the bill stemmed from whether the CRTC would regulate user-generated content on social media platforms. The government rejected a senate amendment that would have exempted individual content creators. The Conservative party also alleged in Parliament that Bill C-11 would censor what Canadians see online and have pledged to repeal the legislation when they form government.

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