One of the consequences of Donald Trump becoming president of the United States is that now Canada, the U.S. and Mexico are meeting to discuss amendments to the North American Free Trade Agreement, which Trump has threatened to pull out of entirely if he doesn’t get his way.
Canada has made clear that it plans to keep cultural exceptions to the free trade agreement, allowing it to continue to protect its cultural institutions from its much larger neighbour. So it might be tempting to think there won’t be any change here.
But there is one change being proposed that could make a huge difference to the Canadian television industry, and its one that proponents on both sides of the border would argue strengthens rather than weakens cultural protection.
It’s called retransmission consent.
CUSFTA, NAFTA and copyright law
When it comes to broadcasting law, NAFTA defers to the earlier Canada-U.S. Free Trade Agreement, whose text is posted online in a PDF. Article 2006 of the CUSFTA lays out requirements and exceptions to copyright law when it comes to retransmission of distant television signals. Under its rules, each country must prohibit non-simultaneous retransmission, or altered retransmission, of signals that aren’t meant for over-the-air broadcast, without the consent of the copyright owner.
But the rules intentionally leave a big hole for simultaneous transmission of over-the-air stations without that consent. As a result, Canadian television distributors can distribute U.S. over-the-air stations (CBS, ABC, NBC, Fox and PBS) without those stations’ consent or compensation to them, following only the rules set by the CRTC.
This exception to copyright law dates back to the early days of cable TV, when providers picked up the cross-border stations over the air and distributed them to their customers. The rules have been codified since then (generally, providers can distribute two sets of what are called 4+1 stations — PBS is the +1 — and choose to take a group of Eastern time zone stations and a group in the Western time zone) but the essence remains in place to this day, enshrined as section 31 of the Copyright Act.
Some people want to change that, on both sides of the border.
Cross-border unity
On the Canadian side is Bell, which owns CTV stations. Appearing before a parliamentary committee hearing on Sept. 20, Rob Malcolmson, Senior Vice-President, Regulatory Affairs, suggested eliminating section 31 of the Copyright Act entirely, which would mean television providers would need to negotiate carriage of distant signals both Canadian and American. CTV and CTV Two stations being carried outside their markets would get some compensation as a result. (Current copyright law requires TV providers distributing distant stations to compensate rights holders, both Canadian and American, through a fund that taxes them at about $1 per subscriber per month, but that compensates the creators of the programming, not the stations broadcasting them, and it’s not optional.)
Requiring retransmission consent would change a lot for U.S. border stations. Giving them negotiation power would mean they too could get compensated, and just as important, they could set conditions on carriage, which could include things like blackouts for programs they don’t have the Canadian rights to. A content provider (like, say, the NFL) could make this a condition for being broadcast on border stations, and those border stations could make it a requirement for being rebroadcast in Canada.
Or the U.S. stations could simply decide not to be carried in Canada. And that’s exactly what some of them want.
Some U.S. border stations carried in Canada have formed the U.S. TV Coalition, a group that has been actively lobbying the Canadian government to change its laws so those stations have bargaining power or can take themselves out of Canada entirely. Its members include WXYZ-TV and WDIV-TV in Detroit, WIVB-TV and WNLO-TV in Buffalo, and KSTP-TV in Minneapolis.
KSTP in 2015 tried to ask the CRTC to remove its station from the list of those authorized for rebroadcast in Canada. The CRTC refused, saying their consent isn’t needed.
Making simsub moot
So what would happen if this simple but substantial change went through? It’s hard to say exactly, because the Canadian television system has been so reliant on the current scheme. But here are some things that could happen.
First, some U.S. stations could refuse to be carried in Canada, either because they don’t want to deal with getting Canadian rights to programming or because they don’t think they’re being compensated enough. Canadian TV providers would probably find others that would be game for replacing them, since for many U.S. markets (like Burlington/Plattsburgh or Buffalo), the Canadian market is a big source of their audience.
Then, U.S. rights-holders, probably starting with major sports leagues, could start demanding that signals be blacked out in Canada during their programming to protect the rights of their Canadian broadcast partners. The U.S. stations, which now have bargaining power, could impose this requirement on cable companies carrying their stations.
As new carriage agreements are signed with U.S. stations, they could demand direct fees for carriage (which would undoubtedly depend on whether their programming is subject to blackouts). Those fees would be passed on to the consumer, and the days of TV providers including U.S. stations for free in basic cable packages would be gone.
This doesn’t get much attention in Canada, but as Cartt.ca points out, there are also U.S. border communities where Canadian stations are carried on cable TV. Canadian stations could start making similar demands of U.S. cable providers.
If blackouts take hold during primetime series and sporting events, Canada’s simultaneous substitution system becomes moot. (Though an alternative would be to expand simsub so Canadian ads are seen on U.S. stations regardless of when the program airs or where.) If simsub is no longer a major factor in Canadian TV stations’ revenue, they suddenly get a lot more programming flexibility. Rather than CTV, CTV Two, Global and City building their schedules around having as many simultaneously broadcast U.S. network shows as possible, they could schedule their shows whenever they want.
Original Canadian series would no longer get bounced around the schedule. Programs that follow live sports (like NFL games) would no longer have to be delayed so they sync up with the U.S. network’s delay. Sports programming carried on U.S. network stations (particularly NFL games) could be moved to TSN or Sportsnet so local stations could continue to carry local news. Conversely, Canadian sports like the CFL’s Grey Cup could be moved to local stations because the Canadian over-the-air networks would no longer be reserved for simsubbable programming.
It could be a seismic shift in how English Canadians watch television, giving a lot more power and flexibility to Canadian TV networks.
Don’t hold your breath
Or maybe it won’t. Neither government has indicated it wants to press this as an issue, and though the U.S. TV coalition is pushing it, there isn’t much public support.
The reality is that Canadians like being able to watch ABC, CBS, NBC, Fox and PBS, and any move that would risk taking those channels away (or subjecting them to blackouts) would be deeply unpopular, no matter how much it might benefit the Canadian system. And it’s not like Canadians are desperate to make the lives and bottom lines of Bell, Corus and Rogers any better.
So this is more of an academic exercise than anything else. Realistically, the system will mostly stay the same until the point where Internet-based video consumption takes over from regulated TV distribution as the main source for popular video content. And the Internet has a separate scheme for ensuring that video doesn’t cross the border when a producer or broadcaster wants to protect their rights.
UPDATE (Sept. 4, 2018): A report by the Globe and Mail suggests that U.S. NAFTA negotiators are indeed pushing for changes to simultaneous substitution. It’s not clear if they’re seeking to mandate consent or just allow the U.S. ads into Canada.
