CPTPP allows Canada to regulate streaming
Can-con and cultural/arts protections
TORON TO • Side deals under Canada’s newest trade agreement leave the door open for the government to regulate foreign video services such as Netflix Inc., although the current Liberal government has shown little appetite for such measures.
Canada signed bilateral agreements on culture with every country participating in the Comprehensive and Progressive Agreement for Trans- Pacific Partnership ( CPTPP), which was signed by 11 member countries in Chile on Thursday.
The side letters, released Thursday, exempt Canada from a clause in official text that prohibits discriminatory rules on foreign audiovideo services. Instead, the letters stipulate that Canada “may adopt or maintain discriminatory requirements on service suppliers or investors to make financial contributions for Canadian content development and may adopt or maintain measures that restrict access to online foreign audio- visual content.”
Legal experts say that could give Canada the power to require foreign players to contribute to Canadian content production.
“This leaves the door open for the Canadian government to move into regulating services like Netflix or in theory trying to block services like Netflix,” said Michael Geist, University of Ottawa law professor and Canada Research Chair in internet and e-commerce law.
“In the current environment that’s a bit unimaginable — the government has said they’re not interested in it,” said Geist, who is not a proponent of imposing broadcast-era regulations on online services.
“But the fact that that’s still a potential policy measure may be viewed by some as a future opportunity.”
The side letters also indicate the government wants to maintain cultural exemp- tions in trade talks, a signal that could have implications for the North American Free Trade Agreement talks, Geist said.
The deal comes as the broadcast industry grapples with massive disruption from the internet. Many industry players are calling on the federal broadcast regulator to regulate online streaming services.
But the CPTPP culture side letters aren’t expected to make many waves. The original wording gave Can- ada wiggle room to regulate as long as it applied the same rules to both domestic and foreign services.
“The two cultural conditions insisted on by the U. S. in the original TPP deal were not welcome although the practical implications were not very significant since they were worded in a way that Canada could probably have lived with,” said Peter Grant, lawyer at McCarthy Tétrault and expert on communications and cultural policy, in an email.
“That being said, it’s a distinct improvement for Canada to get rid of the conditions entirely,” Grant wrote.
It’s not clear exactly how or whether the government intends to use the side letters to advance policy, but Minister of Canadian Heritage Mélanie Joly lauded the deal as one that will protect Canadian culture.
“The deal that Canada signed was the one we needed. We stayed focused on our goal and got the recognition from other countries of Canada’s unique culture and our flexibility to support, promote and protect it,” according to a statement from the minister’s press secretary.
“We pushed until the very end to get the protection that Canada needed to continue to support our artists and creators, something that Scheer- Harper Conservatives gave up right away. In a world where technology is changing daily, it’s the first time our government has firmly set out its ability to protect its culture and artists on the web.”
GOVERNMENT HAS SAID THEY’RE NOT INTERESTED IN IT.