Canadian broadcasters keeping in-demand shows off streaming services

Set in the Cold War 1980s, the television drama kicks off its fifth season March 7 following the exploits of two Soviet spies living undercover in the suburbs of Washington, D.C. The hit series has won numerous awards for its portrayal of the tense political and social landscape — one with striking parallels to modern-day America.

For Canadian viewers, there's just one problem: The Americans can'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 watch but ... Canadians aren't able to see it.- Meghan Sali, Open Media

It was one of the marquee titles on the joint Rogers-Shaw streaming service Shomi before that was shut down in November. It thus joins a long list of series — including HBO's Game of Thrones, Silicon Valley and Girls — that are being kept off streaming services by traditional broadcasters for one reason or another.

That's frustrating cord-cutters and leading some consumer advocates 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 watch but, because a Canadian broadcaster doesn't want to release it, Canadians aren't able to see it," says Meghan Sali, of internet advocacy group Open Media. "It's what Canadians expect."

Reviews already underway

The timing could, indeed, be right. Heritage Minister Mélanie 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 fails to exploit them within a specified period of time after acquisition. Rights owners are then free to re-license their content to another streaming service.

• Live TV is coming to YouTube — unless you live in Canada
• Streaming TV options still limited in Canada, despite year of change

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 and services, however, would likely be trickier.

"The public interest argument in making Game of Thrones available [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 contractual obligations of the companies involved.

In the case of Shomi, some content that was previously on the service has indeed landed elsewhere — Jane the Virgin, for example, is now on Netflix, while Mr. Robot has migrated to Amazon Prime. A spokesperson for Rogers says the company is in negotiations to make available other content previously found on Shomi.

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 do Rogers and Shaw have to agree on deals, they also don't want to hand assets over to chief rivals, 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 November 2015, yet so far has only made older shows such as The Sopranos and Sex in the City available on CraveTV. 

• Amazon Prime video service launches in Canada
• Cable giants step up battle against 'free TV' Android box

Newer, in-demand series such as Game 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 is precisely 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. The International Intellectual Property Alliance, a lobby group representing the U.S. entertainment and software industries, has again placed Canada on a "watch list" of high-piracy countries and urged the Trump administration to push for stronger copyright enforcement in Canada. 

One of the organizations represented by the IIPA is the Independent Film & Television Alliance, which counts Time Warner — HBO's parent company — among its members. An HBO representative would not say whether the company supports the IIPA's position.

If we don't see such rules come in, we can expect to see Canadians continuing to find ways to work around the existing framework to get access to content.- Meghan Sali, Open Media

Reports have shown that legal availability of content correlates directly with decreases in piracy. The Australian film industry in 2015 estimated that piracy had declined by 29 per cent from the previous year thanks to a number of new legal streaming services. And Britain's Intellectual Property Office last year found piracy to be at record lows thanks to Netflix and other streaming services.

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