Hill Times Letter: We need to move ‘broadcasting’ and ‘copyright’ from Canadian Heritage, to Innovation, Science and Economic Development

Letter to the Hill Times Editor published June 28, 2021

I’ve been active in related areas of policy since the 1990s, so have watched the damage caused by the Department of Canadian Heritage, created in 1993 and given royal assent in 1995. This is a department whose minister was granted jurisdiction over “Canadian identity and values, cultural development, heritage, and areas of natural or historical significance to the nation” (from 4(1) of An Act to establish the Department of Canadian Heritage).

The departmental mandate includes official colonial languages. Two areas of technology law where that mandate is in conflict are copyright and broadcasting, but these were incorrectly included in 4(2) of the act. These are areas of policy that should always have been the jurisdiction of the department currently called Innovation, Science and Economic Development (ISED), as transferred from the previous Department of Communications.

Sheila Copps set the tone as the first minister of Canadian Heritage from 1996 through 2003 and saw intermediaries, such as broadcasters and collective societies, as proxies for creators. Once the tone was set, every heritage minister since, Conservative or Liberal, and every Standing Committee on Canadian Heritage (CHPC), has followed her lead.

When I was very active in copyright with what a decade later was passed in 2012 as Bill C-11, I would closely follow what was said from MPs from the Standing Committee on Industry, Science and Technology (INDU) committee and those from the Standing Committee on Canadian Heritage (CHPC). It was my observation, including from meeting MPs in person, that the difference in views between an MP on INDU versus CHPC was far greater than the difference in views between a Conservative and NDP MP in the same committee.

During the 2019 review of the Copyright Act, INDU was forced to put out a press release reprimanding the CHPC for what for many people was yet another report from CHPC which read as if it were written by corporate lobbyists rather than a committee pretending to be concerned with the public interest.

The same is regularly said of the CRTC, which largely acts as a lobbyist for specific corporations rather than regulating in the public interest.

So, what is Bill C-10 really about?

In clause 1, it redefines “broadcasting” to include activities not related to broadcasting in order to yank jurisdiction away from ISED (INDU committee, and agencies such as the Competition Bureau, privacy commissioner, etc.) toward Heritage and the CRTC.

It really is that simple. There is further discussion of cross-subsidy and other schemes, and some pennies to Indigenous languages and content to distract from the Heritage Department’s primary colonial mandate, but the core of the bill is a power grab between government departments and agencies.

While the internet needs to be regulated, that regulation must be via a department and ministry, studied by a parliamentary committee, and managed by regulators that are looking at these issues from a lens that is the opposite of what Heritage and the CRTC will offer.

We need to remove “broadcasting” and “copyright” from the Department of Canadian Heritage, and move those areas of policy to ISED where they always should have been. Only then should the policy in Bill C-10 be revisited with the appropriate lens.

We need to properly fund and empower the Competition Bureau, Privacy Commissioner of Canada, Consumer Affairs, and related agencies to handle a growing number of internet issues.

We need to complete the digital transition, not continue to regulate digital technology as if it were still analog. (See letter from March 1, 2021)

We (including fellow creators) need more choice and competition in content distribution technologies, not less via central control.

We need to disallow content distribution intermediaries from controlling technology which they don’t own, such as was allowed/enforced in “copyright” under “technological protection measures.”

We need creators to have more control over their own content distribution to maximize the benefits for themselves, rather than continuing to allow intermediaries to extract maximum benefits off the backs of creators.

We need to empower audiences to make their own choices of what creativity they access. While we need to regulate situations where the sender is the content programmer (as was the case with analog-era broadcasting), we should never be regulating scenarios such as on-demand content libraries where it is the audience doing their own programming. (Discoverability is a competition policy issue, not a cultural policy issue)

We must end unaccountable cross-subsidy schemes, especially never extracting money from services deemed essential during the pandemic to sectors which were not.

Russell McOrmond
Ottawa, Ont.
(The letter-writer is an internet consultant.)