Tag: quebec

The Online Streaming Act Was Already Complicated and Controversial Enough, But Now Quebec Enters the Fray (No Surprise: It’s Happened Before)

An illustration depicting a tug-of-war scenario, featuring a Canadian flag on one side and a Quebec flag on the other, symbolizing the cultural and political tensions between Canada and Quebec.

Tug of War Image: Shutterstock (modified)

Welcome to Canada, where the difficult can become the intractable when you add the inevitable additional ingredient of federal-provincial politics to any policy issue. Throw in the survival of the French language and Quebec culture in Canada and you have another classic Canadian drama. How to ensure that in protecting majority interests you don’t damage minority interests, or put another way, how to govern in the national interest without making a special exception for Quebec that will undermine the federation, especially now that some other provinces, such as Alberta, are playing the “Quebec card”. It has always been a delicate dance to keep the two linguistic groups rowing in the same direction, often accomplished by providing concessions to Quebec that have managed to meet its unique needs while maintaining provincial interoperability and minimum national standards. The latest challenge is broadcasting, or more specifically, streaming—which may or may not meet the definition of broadcasting.

It has been a well-established principle for decades that broadcasting in Canada is regulated by the federal government, although this was initially contentious (as it is once again). Perhaps not surprisingly, the original challenge came from Quebec which passed its own Broadcast Act in April 1929, before any federal legislation in the broadcast space had been enacted. A Royal Commission on Radio Broadcasting had been established by the federal government the year before to examine British and US systems (one leaning heavily toward a national public broadcaster, the other taking the lightly regulated commercial broadcasting route). Quebec quickly seized the initiative before any recommendations were issued by passing its own legislation. The Royal Commission’s findings, known as the Aird Report after Chief Commissioner Sir John Aird, former President of the Canadian Bank of Commerce, were finally issued in November of 1929.

That report recommended a public broadcasting system and laid the foundations for the establishment of the CBC/Radio-Canada. The stock market crash and ensuing Depression delayed action, along with a change of government, but by 1931 the R.B. Bennett government was ready to act. Quebec further forced the issue by passing a provincial Radio Act relating to licensing of receivers and transmitters. The federal government then referred the jurisdictional issue of broadcasting to the Supreme Court of Canada which ruled, 3-2, that broadcasting was a federal responsibility under Section 92(10)(a) of the BNA Act on the grounds that broadcasting was an undertaking, like the telegraph, that extended beyond provincial boundaries. Quebec appealed, but the Privy Council in London upheld the Supreme Court’s decision. The Bennett government then established the Canadian Radio Broadcasting Commission (CRBC), the forerunner of both the public broadcaster, the CBC, and the broadcast and telecoms regulator, the CRTC (Canadian Radio-Television and Telecommunications Commission). Originally national broadcasting was in both official languages but to meet criticisms from Quebec, the CRBC launched French language programming unique to Quebec in 1934, marking the beginning of Radio-Canada’s French language service. An excellent summary of the history of Canadian broadcasting, produced by the Canadian Communications Foundation, can be found here.

Given the fractious history over who should regulate the airwaves, particularly given the importance of communications when it comes to cultural and linguistic identity, it is not surprising that differences have arisen with regard to streaming. The key question is whether streaming constitutes broadcasting. The federal regulator, the CRTC, has always maintained that mass communication transmitted digitally (new media) is a form of broadcasting although for many years it declined to regulate it on the grounds that there was no current need and that regulation might stifle innovation. In 1999, it issued a New Media Exemption Order, the main conclusion of which stated;

“…pursuant to subsection 9(4) of the Act, the Commission exempts persons who carry on, in whole or in part in Canada, broadcasting undertakings of the class consisting of new media broadcasting undertakings, from any or all of the requirements of Part II of the Act or of a regulation thereunder. New media broadcasting undertakings provide broadcasting services delivered and accessed over the Internet,…”

The Exemption Order was extended in 2009, but all that changed with the introduction in 2023 of the Online Streaming Act. That legislation amended the Broadcasting Act to specifically bring streaming content under the purview of the regulator, thus allowing the application of many provisions regarding streaming content, a number of them controversial. In particular it extends CRTC authority over foreign based streamers distributing programming in Canada. While the legislation gave authority to the CRTC (the Commission) to implement key parts of the Act, this will be a slow process as extensive hearings are required. Nonetheless, the Commission fired the first shot almost exactly a year ago, even before hearings had commenced, by requiring “base contributions” of 5% of Canadian revenues from (mostly foreign) streaming services for the creation of Canadian content, including funding to support local news broadcasting in Canada. This occurred prior to the CRTC’s review of how to define Canadian content, and determining who is entitled to claim a Canadian content credit for its creation. In the meantime, the foreign streamers have gone to Federal Court to fight the mandatory “contributions”, and so far not a nickel has been paid.

Another element of the CRTC’s deliberations will be deciding how to implement measures to ensure “discoverability” of Canadian content on streaming platforms. “Discoverability” in a broadcasting/streaming context goes beyond the plain English use of the word. Canadian Heritage (now the Ministry of Canadian Culture and Identity) has published a whole research paper on the technical aspects of discoverability. The paper offers a general definition (“…how content can stand out in order to reach an audience in a universe of hyper choice, where the catalogues of major cultural dissemination platforms offer tens of thousands of titles and products to users..”), but then goes on to point out the difference between content discoverability based on actions aimed at target audiences (such as highlighting certain content), and the use of technical tools or automated systems to showcase content and make it more findable (such as modifying or influencing algorithms). In short, it is a complex issue.

Discoverability was one of the most controversial and misinterpreted aspects of the Online Streaming legislation, then known as Bill C-11. Amendments introduced during the legislative process to encompass user-generated content, requiring that from a platform perspective it too be subject to the discoverability rules, were wildly and inaccurately criticized as internet censorship. Some groups purporting to represent the creative and user communities criticized the discoverability requirements as interfering with market forces and altering algorithmic results. But the Bill passed, including the discoverability requirements, the details of which remain to be established by the CRTC. While this process is underway, Quebec just threw a grenade into the room through the introduction of its own legislation, Bill 109, ”An Act to Affirm the Cultural Sovereignty of Québec and to Enact the Act Respecting the Discoverability of French-Language Cultural Content in the Digital Environment.”

Michael Geist of the University of Ottawa has described the Quebec bill as “unconstitutional, unnecessary and unworkable”, which is a pretty damning but largely accurate indictment. The problem that Quebec is trying to address, as MediaPolicy.ca blogger Howard Law has pointed out, is the “drastic underconsumption of French-language music on streaming platforms, a stunning 4.6 per cent of the top 10,000 song streams in Quebec, a province that is 80 per cent native French speakers.” Compare this to the French-language content requirements imposed by the CRTC on French-language radio stations. These stations must devote at least 65% of all popular music broadcast each week to French-language selections. The CRTC policy, whether it is Canadian content or French-language content, is based on the same premise; if you don’t require a minimum of Cancon/French-language content, the stations will default to non-Canadian, non-French language content. This will deprive Canadian anglophone and francophone artists of exposure and hinder development of “desirable” cultural content. And possibly contribute to weakening the French language in Quebec.

The cultural libertarians would say, so be it. If quotas are required to ensure that Cancon or French-language content gets consumed, then maybe it is not worth listening to or watching. Let the consumer decide (which is essentially how streaming works; the consumer chooses what to consume rather than consuming what is offered). The counter policy argument is that the content industry is so dominated by (take your pick; Hollywood, the major US labels, English language content, etc) that countermeasures are required to balance the playing field and ensure that local cultural content has a chance to breath before it is suffocated by the dominance of outsiders. In a society like Quebec, that represents roughly 7 million francophones in a sea of well over 350 million anglophones in North America, this is an especially critical issue. Will regulating discoverability requirements change the listening or viewing habits of Quebecois, especially young people. I have my doubts, but what is the alternative?

Governments regulate markets in many ways for the greater good, so why not cultural content? In Canada, the whole premise of broadcasting (going back to the 1920s and 1930s), and now streaming, has been to preserve and encourage Canadian voices, whether they be anglophone or francophone. How that should be done and who should do it has always been a tricky question and at times has required a delicate balancing act, sometimes between Canada and the United States, and sometimes between the Canadian federal government and Quebec. It would seem that we are in the midst of another one of those moments. Quebec’s desire to put its thumb on the scale to protect the French language is not new and should not be a surprise, although whether Bill 109 is constitutionally legal and, if it is, whether it will be effective, are valid questions. But we have been here before. As I said at the outset, welcome to Canada.

© Hugh Stephens, 2025. All Rights Reserved.

A Cautionary Copyright Tale

My daughter’s (copyrighted) art, circa 1990, age 5 (Used with permission)

It is rare that a copyright story makes the national news, in Canada or elsewhere, but this one had all the needed ingredients. A teacher exploiting students, irate parents, and a possibly negligent school board. What’s not to like?

The Canadian Press reported that ten Montreal area parents have launched a lawsuit for CAD$1.6 million against a junior high school teacher for copyright infringement, and for negligence on the part of the Board. According to the report, Mario Perron is (or was?) an art teacher at Westwood Junior High in St. Lazare, QC, west of Montreal Island. Perron had assigned his class to prepare “creepy portraits” of themselves and other students in the style of artist Jean-Michel Basquiat who, despite his Quebecois sounding name, was an American neo-impressionist artist in the 1980s who worked with Andy Warhol. Some of the works produced by the students were quite interesting, judging by the samples displayed in this Google search. (Who knows? Maybe they relied on an AI program to produce Basquiat-like works “in the style of”, as I did a couple of years ago for an earlier blog). My prompt, however, was for an artist (Monet) whose work is in the public domain.

Their teacher clearly did not give much thought to copyright when he posted artwork created by the students on his website, including portraits of classmates and self-portraits screened on to tee-shirts and coffee mugs. They were offered for sale at various prices, over $100 in some cases. There is little question that this was a flagrant violation of the student artists’ copyright. You may ask why these students would enjoy copyright in these amateur works? The answer is simple. The works met all the criteria in Canada to be eligible for copyright protection.

There is no minimum limit on the age of a creator, although a creator has to be living, sentient human being, not an AI robot or a monkey with a camera. (Yes, in theory even an infant’s artwork could be protected by copyright). All that needs to be shown is that the work is original (not a copy), that it is the expression of an idea (the idea itself cannot be copyrighted), that it demonstrates “skill and judgement” and that it is fixed in some form (i.e. a physical incarnation as on a canvas, or on paper, a recording, a photograph.) Plus, the artist must be a resident of a Berne Convention country (which Canada is). These works met all these criteria. A work does not have to be a Rembrandt to enjoy copyright protection. The artist does not have to be famous or have produced any other work. It could be argued that even dipping your hand into a can of paint and placing it in a certain way on the canvas constitutes originality, skill and judgement. These works belonged to the student artists and neither their teacher, nor anyone else, had the right to appropriate them through unauthorized reproduction and distribution, let alone for commercial purposes. The law is very clear.  

In addition to copyright considerations, here are additional factors to take into account, such as the fact that the portraits were, according to the teacher’s instructions, either self-portraits or portraits of classmates. Since the instruction was to produce a “creepy portrait” à la Basquiat, it is not inconceivable that some of the subjects of the works might become the object of ridicule or harassment since their first names were attached to the portraits. This issue goes beyond copyright law, but it is important to remember that copyright law grants the creator the right to determine the means and extent of distribution of a work (for example, the author can decide not to publish or display it). These rights were violated. It is the potential damage from the unauthorized distribution of the works that could be even more harmful than the violation of economic rights. To usurp the right of the artist to decide where and how their work will be displayed is a clear violation of copyright law. I won’t comment on the personal harm aspects of the case, but they are clearly related to the copyright infringement elements.

The remedies sought are substantial, amounting to $155,000 for each of the ten families involved in the suit, based on statutory damages of $5000 per work times 31 works, the number created by each student. In addition, the plaintiffs are seeking $100,000 in punitive damages and $150,000 in costs. Canada’s Copyright Act, Section 38.1(1) provides for statutory damages (damages where the amount of actual damage does not have to be documented, nor actual injury proven) of not less than $500 and not more than $20,000 for commercial infringement, and not less than $100 and not more than $5000 for non-commercial infringement. Mr. Perron is potentially in big trouble.

As for the School Board, which is saying very little, the claim is that they were negligent in allowing this to happen. Are they any more negligent than a company whose employee carries out illicit after-hours activities, such as copyright violations of the work of others? I wouldn’t have thought so, but of course a teacher does exercise a position of trust over their students, and the Board is responsible for ensuring that the trust is exercised responsibly, so perhaps. The works were created in a classroom setting (this does not give either the school or the instructor any authorship rights over the works, by the way), yet the infringement occurred outside school hours and premises. Could or should the school administration have known? There certainly wasn’t a line in the policy book for teachers that said, “Do not make unauthorized use of student art for your own commercial gain”. Who would have thought of that?  Anyway, I am not a lawyer so what I think about the Board’s culpability doesn’t really matter. The court will decide, if it gets to court.

The parents (one of whom must surely be an IP lawyer) have also asked for a written apology, the removal of all the students’ art from the internet and an accounting of funds earned. To my knowledge, they have not demanded that Perron be fired, although that may happen. Perhaps the suit has been filed to get the attention of the School Board, which was dilatory in responding to initial complaints. Perhaps there will be a non-punitive settlement, with any proceeds to date being donated to school art programs. Hopefully Mr. Perron and others will have learned an important lesson about the role of copyright in protecting the work of creators, even if they are young students. Perhaps he won’t lose his job.

I would like to think the result will be a greater awareness by educators, students and the public of the importance of copyright in society today. Let’s hope that this particular teacher was simply blind or ignorant with regard to his actions, not malign. He will now know better. It is an important lesson for all concerned, and a cautionary copyright tale if there ever was one.

© Hugh Stephens, 2024. All Rights Reserved.