On the "deja vu all over again" front, recent
developments relating to online television content in Canada have
stirred up memories of the good old days of "grey market"
and "black market" satellite dishes. It was only a decade
ago or so that Canadian broadcasters had to address the consumer
backlash relating to the inability to legally receive HBO in
Canada. The focus of consumer anger was directed at the Canadian
pay TV services, which were licensed by the CRTC to offer premium
subscription pay TV services. In response to the consumer outcry
"I want my HBO!", Canadian pay TV channels tried to
explain that every program on U.S. pay TV services such as HBO,
Showtime and Starz was licensed for exhibition in Canada by the
Canadian pay TV services (The Movie Network in Eastern
Canada and Movie Central in the West).
But that did not quell the outcry. The grey and black markets
flourished. Eventually the owners of The Movie Network
(then Astral, now Bell) and Movie Central (Corus) quelled
the controversy by rebranding some of their multiplex channels as
But in what feels like an episode of "Groundhog Day"
in the regulatory arena, significant consumer dissatisfaction has
been percolating with respect to the range of content available in Canada on legal
services such as Netflix Canada, Shomi and CraveTV. This has in
turn led to consumer puzzlement over the lack of access to
Netflix's U.S. service and to services such as Hulu (an online
aggregator jointly owned by Fox, Disney and NBC Universal).
Canadian broadband subscribers who port online TV to their
living rooms (whether via Apple TV, Roku Boxes and many other
options) have a plethora of choice for (legal) online content,
ranging from Netflix Canada to Shomi (Rogers/Shaw) and CraveTV
(Bell). But just as Canadian offerings are catching up to the
choice offered in the United States to broadband customers, it
seems the U.S. market is taking another leap forward, with a slew
of dedicated streaming services now being made available
"direct to consumers" by a broad range of providers
including networks (CBS Univision), cable networks (HBO, Starz),
studios (Sony, Warner Bros.) and other OTT services (Amazon, Prime,
None of these services are available in Canada including the
newly announced HBO streaming service. Why? Well, don't blame
the CRTC. The Toronto Star recently ran a
useful analysis by Peter Nowak of the opportunities and challenges
facing online TV in Canada. As Nowak explains, the reason for the
very different product offering on both sides of the border lies in
a complicated web of licensing rights that ultimately restrict what
Canadians can see online. For example, the online rights to HBO
programming in Canada has been tied up by Canadian media companies.
Along with the linear channels offered by HBO Canada, one of the
pay TV "multiplex" channels operated jointly by Bell
Media and Corus Entertainment also have the rights to stream
HBO's new content and back catalogue. This programming will
likely find its way onto CraveTV in Canada rather than permitting
Canadians to having access to new streaming services such as the
newly launched HBO online service in the United States.
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In less than nine months, on July 1, 2017, persons affected by a contravention of Canada's anti-spam legislation will be able to invoke a private right of action to sue for compensation and potentially substantial statutory damages.
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