Globe and Mail editorial attacks on Canadian creators and broadcasters: what’s up with the Globe?

January 4th, 2018 by Barry Sookman Leave a reply »

There was a time you could count on The Globe and Mail to support the Canadian cultural industries and to favour legal frameworks designed to strengthen them. You could also count on the Globe not to be soft on content theft by commercial pirates that harm Canadian businesses and impede their ability to innovate. Recently, however, the Globe has taken one-sided positions opposite the creative community. Worse, it has taken these positions relying on inadequate research and supporting them with inaccurate factual assertions, in some cases by relying on writings of anti-copyright activist Michael Geist.

A case in point is the Globe editorial: A bad idea for ‘fixing’ Canada’s internet rules, (Oct 1, 2017). This editorial was critical of proposals to counter streaming piracy outlined by Bell before the Standing Committee on International Trade on NAFTA on September 27, 2017.

The first proposal to fight piracy was to empower the CRTC to make orders requiring ISPs to block pirate websites.

The Bell representative first outlined the problem broadcasters and distributors have with the Kodi box Internet streaming problem.

U.S. interests have long complained that widespread online copyright infringement here in Canada is limiting the growth of the digital economy. In fact, many of the most prominent global players in the piracy ecosystem operate out of Canada as a relative safe harbour. Canadians made 1.88 billion visits to piracy sites last year…

Set-top boxes are being sold in any electronics store on virtually every corner in a city where you can buy something called a Kodi box that comes preloaded with content we and Rogers own the copyright in. You can buy that for $50 and you can watch live TV for free.

Bell then outlined a proposal to have an administrative agency blacklist certain sites. The blocking orders would be made by the CRTC. See, Barry Sookman, Website blocking proposal good policy. The sites were described in Bell’s testimony as “digital pirates”, “pirated websites”, and “a blacklist of egregious piracy sites”.

The proposal was immediately criticized by Michael Geist in a blog post, Bell Calls for CRTC-Backed Website Blocking System and Complete Criminalization of Copyright in NAFTA. The Globe followed suit adopting his criticisms claiming that “A small handful of companies connect Canadians to the Internet, and one of them would like Ottawa to help control and restrict that access” and further that the proposal “adds up to a frontal attack on online freedom”.

As I pointed out in a prior blog post, website blocking of pirate sites is a tried and true way of addressing internet piracy among many of Canada’s trading partners. Further, the courts which have addressed ISP blocking have found that such orders do not violate freedom of expression values. In short, orders that target Internet pirates cannot be considered as a “frontal [or any other kind of] attack on online freedom”.

The editorial went even further suggesting that states that have site blocking “tend to be authoritarian”.[i] While some states that use web site blocking to censor political speech may be authoritarian, it is factually wrong to assert that states that use it “tend to be authoritarian”. Website blocking is a legitimate tool used by many free and democratic countries that support an open Internet to block a variety of websites that disseminate illegal content such as child pornography, malware, investment fraud, terrorism, personal information, counterfeiting, and copyright infringement. It can hardly be argued that countries that use website blocking to protect members of the public such as England, France, Singapore, Australia, Portugal, Italy, and the Province of Quebec (gambling) are authoritarian. See, Nigel Cory, “How Website Blocking Is Curbing Digital Piracy Without “Breaking the Internet”, ITIF, August 2016.

It is unfortunate that the Globe would outright reject what is perhaps the only way to restrict access to foreign pirate websites while ignoring the existential threat to creators, broadcasters, and distributors posed by online streaming including streaming to Kodi boxes and other Internet streaming devices (ISDs).

The second proposal Bell made was to target Internet piracy by criminalizing copyright infringement for commercial purposes. On this Bell said “Canada should also create a criminal provision for any infringement of copyright, including facilitating and enabling piracy where it’s undertaken for a commercial purpose.”

The context of the proposal was clearly for a criminal remedy to address commercial scale Internet piracy. Indeed, Article 1717 of NAFTA already requires that Canada “shall provide criminal procedures and penalties to be applied at least in cases of… copyright piracy on a commercial scale.” Article 61 of TRIPS has a similar provision. Article 1877 of the TPP would also have required member countries to “provide for criminal procedures and penalties to be applied at least in cases of …copyright or related rights piracy on a commercial scale.”[ii]

The issue is that while Canada has some criminal rules against copyright infringements in some commercial situations, they are framed in the context of the older practice of piracy based on certain forms illegal copying, and not well-suited for modern piracy on a commercial scale that takes place through streaming. In recognition of this problem and the problems faced by the creative community in the U.K. by modern commercial forms of piracy – which the U.K. takes seriously – the U.K. government recently enacted the Digital Economy Act 2017 to, among other things, modernize its criminal copyright enforcement provisions to include communicating (or making available) a work to the public for the purpose of gain or where the person “knows or has reason to believe that communicating the work to the public will cause loss to the owner of the copyright, or will expose the owner of the copyright to a risk of loss”.

However, rather than siding with creators or suggesting how the proposal might be improved to appropriately target modern commercial pirate services, the Globe summarily rejected the proposal. Moreover, it did so misleadingly and inaccurately describing the proposal by quoting directly from Michael Geist who, in his blog post title (quoted by the Globe) misleadingly and inaccurately called it “the complete criminalization of copyright.”

Another example is the Globe editorial: In 2018, the fight for net neutrality must continue December 25, 2017)

The editorial purports to deal with issues related to net neutrality, but again misses the mark. It once again adopts Michael Geist’s views including those expressed in a submission to a CRTC consultation.

Dealing with the proposal from Canadian broadcasters for a regime that would enable the CRTC to order ISPs to block pirate websites, the editorial asserts that

“the free flow of information will be interfered with – precisely what net neutrality aims to prevent. If piracy is the problem, we should rely on Canada’s robust laws against intellectual property theft”.

It is hard to understand why a legitimate paper like the Globe would assimilate concerns about the “free flow of information” with the distribution of pirated/illegal content. Further, this is not a net neutrality issue – none of the net neutrality regimes in place around the world prevent government from addressing illegal activity online. Thieves have no freedom of expression rights in the dissemination of such illegal content.

The further assertion that “If piracy is the problem, we should rely on Canada’s robust laws against intellectual property theft”, which again is taken uncritically from Geist, simply confuses the problem with an inapt solution. The sites that would be blocked by the proposal operate outside of Canada, or like the notorious “The Pirate Bay”, would never obey a Canadian court order. The only effective way of protecting domestic markets against these illicit foreign sites and services is with the use of blocking orders against ISPs or deindexing orders against search engines.

The Globe then endorses Geist’s proposal in the submission to the CRTC

“to drop the “walled garden” approach to regulation in favour of a consumer-oriented approach to maintain affordable internet access and other measures “that foster increased global competitiveness of Canadian services and creators.”

It based this endorsement, in part, on a statement it quoted from Geist’s submission:

As University of Ottawa law professor Michael Geist summarized in a recent submission to the CRTC, “foreign financing now contributes more toward English-language television production than the licensing fees paid by private or public broadcasters, federal tax credits, Canadian distributors, and the Canadian Media Fund.”

The statement by Geist was attributed to a study published by the Canadian Media Producers Association (CMPA) in collaboration with the Association Québécoise de la production médiatique (AQPM), the Department of Canadian Heritage and Telefilm Canada.[iii] However, Geist misquoted the study and the Globe quoted Geist without fact checking him. The study, in fact, found that foreign financing accounted for only 18% towards English-language television production, with the balance from other sources.[iv] The private and public broadcasters accounted for 22%. Foreign financing of French language television production accounted for less than 1% of the financing.

The Globe editorial then proposed, also based on Geist’s submission, to do away with the long standing policy of simultaneous substitution, which it referred to as a “cash cow”. However, neither Geist nor the Globe referred to the important policy reasons supporting it. These were set out by the CRTC as follows

  • to protect the rights of broadcasters
    When broadcasters buy programs from American and Canadian producers or networks, they pay to have exclusive broadcast rights in certain markets. Signal substitution protects these rights.
  • to enable TV stations to draw enough advertising dollars
    TV services earn most of their revenue from advertising. The advertising rates they can charge depend on the size of their audiences. Without signal substitution, the audience for one show would be split across several stations. This would reduce the size of the audience for each station. With that smaller audience, the TV station couldn’t charge as much for advertising. Signal substitution means that local stations keep their local audiences and the advertising dollars that go with those audiences.
  • to keep advertising dollars in the Canadian market
    A lot of the time, an American signal is replaced with a Canadian one. By replacing American ads with Canadian ads, advertising money is generated in the Canadian market.

It is surprising that the Globe would not support proposals that would strengthen the Canadian broadcasting system and support the creative community in Canada. It is even more disappointing it would take the positions it took in its editorials without engaging in research (or in sufficient research) to properly understand the issues faced by the creative community and reasonable proposals to address them, or to do what every journalist is taught to do – to fact check sources, especially those with known biases.

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[i] The editorial stated “The principle rightly discourages governments and industry from blocking or favouring sites; states that ignore it tend to be authoritarian.”

[ii] Under the TPP, “In respect of wilful copyright or related rights piracy, “on a commercial scale” includes at least:

(a) acts carried out for commercial advantage or financial gain; and

(b) significant acts, not carried out for commercial advantage or financial gain, that have a substantial prejudicial impact on the interests of the copyright or related rights holder in relation to the marketplace.”

[iii] Profile 2016. Economic Report On The Screen-Based Media Production Industry In Canada, available at http://www.cmpa.ca/sites/default/files/documents/industry-information/profile/Profile%202016%20EN.pdf.

[iv] Ibid Exhibit 4-19 p. 55

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