Canadian broadcasters keeping in-demand shows off streaming services

Set in the Cold War1980s, the television drama kicks off its fifth season March 7following the exploits of two Soviet spies livingundercover in the suburbs of Washington, D.C.The hit series has won numerous awards for itsportrayal of the tense political and sociallandscape one with striking parallels to modern-dayAmerica.

For Canadian viewers, there's just one problem:The Americanscan't be found on any legal streaming service here.

There should be no situations where there is content out there that's available for people around the world to watchbut ... Canadians aren't able to see it.- MeghanSali, Open Media

It was one of the marquee titles onthe joint Rogers-Shaw streaming service Shomibefore that was shut down in November. Itthus joinsa long list of series including HBO'sGame of Thrones, Silicon ValleyandGirlsthat are being kept off streaming services by traditional broadcasters for one reason or another.

That'sfrustrating cord-cutters and leading some consumeradvocates to say the time has come for policymakers to enact use-it-or-lose-it rules on streaming rights.

"There should be no situations where there is content out there that's available for people around the world to watchbut, because a Canadian broadcaster doesn't want to release it, Canadians aren't able to see it," says Meghan Sali, ofinternet advocacy group Open Media. "It's what Canadians expect."

Reviews already underway

The timing could, indeed, be right. Heritage Minister Mlanie Joly is currently engaged in a sweeping review of Canada's cultural and broadcasting framework and has said "everything's on the table." A federal review of the Copyright Act is also due this year.

Under a use-it-or-lose-it rule, streaming rights revert to producers/owners if the licensing party failsto exploit them within a specified period of time afteracquisition. Rights owners arethenfree to re-license their content to another streaming service.

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Canadian content producers (more than 350 independent production companies that are members of the Canadian Media Producers Association, or CMPA), have such an agreement in place with Canadian broadcasters.

But that will no longer be the case after September, due to a decision by the CRTC.

And no such agreement exists when it comes to American content.

Without the use-it-or-lose-it rule, streaming services such as CraveTV, Netflix and Amazon Prime will theoretically be able to buy up the rights to Canadian- or American-produced shows and shelve them.

Industry watchers say there's a public interest in forcing streaming services to use rather than hold onto the rights to Canadian productions, so that those programs are seen in a timely way by Canadians.

Applying such rules to international producers andservices, however, would likely be trickier.

"The public interest argument in makingGame of Thronesavailable [to everyone] is harder to make," says John Lawford, executive director of the Public Interest Advocacy Centre.

Canada on piracy 'watch list'

Use-it-or-lose-it would also likely be complicated by the business strategy and contractualobligations of the companies involved.

In the case ofShomi, some content that was previously on the service has indeed landedelsewhere Jane the Virgin, for example, is now onNetflix, whileMr. Robothas migrated toAmazon Prime. A spokesperson for Rogers says the company is in negotiations to makeavailable other content previously found onShomi.

But Shomi's content isn't easy to relicense because of the joint nature of the former service,according to Greg O'Brien, editor of telecom and broadcasting news site Cartt.ca. Not only doRogers and Shaw have to agree on deals, they also don't want to hand assets over to chiefrivals, especially Bell.

"They're not going to sub-license [The Americans] to CraveTV," he says. "That's just not going to happen."

Bell, for its part, acquired full streaming rights to all HBO content in November2015, yet so far has only made older shows such asThe SopranosandSex in the Cityavailable on CraveTV.

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Newer, in-demand series such asGame of Thrones,meanwhile,can only be streamed by cable subscribers via Bell's TMN app a way to stop consumers from cutting the cord, observers say, which isprecisely the sort of move that's provoking calls for use-it-or-lose-it rules.

"They're not scared of someone else getting the rights, they're not scared of anyone having a different distribution system," Lawford says. "They're not scared of anyone anymore."

Bell did not return requests for comment and HBO declined to answer queries regarding streaming rights in Canada.

Without use-it-or-lose-it rules or a change in attitude by broadcasters, piracy is likely to continue. TheInternational Intellectual Property Alliance, a lobby group representing theU.S. entertainment and software industries, has again placed Canada on a "watch list" of high-piracycountries and urged the Trump administration to push for stronger copyright enforcement inCanada.

One of theorganizationsrepresented by theIIPAis the Independent Film &TelevisionAlliance, which counts Time WarnerHBO's parent companyamong its members. An HBOrepresentative would not say whether the company supports the IIPA's position.

If we don't see such rules comein, we can expect to see Canadians continuing to find ways to work around the existingframework to get access to content.- MeghanSali, Open Media

Reports have shown that legal availability of content correlates directly with decreases inpiracy. The Australian film industry in 2015 estimated that piracy had declined by29 per cent from the previous year thanks to a number of new legal streaming services. And Britain's IntellectualProperty Office last year found piracy to be at record lows thanks toNetflixand other streamingservices.

"The willingness is there to pay for it," says Open Media'sSali. "If we don't see such [use-it-or-lose-it] rules comein, we can expect to see Canadians continuing to find ways to work around the existingframework to get access to content."