I wanted to do the Hybrid VOD part of today’s decision separately because I think it warrants a little more context. As you will recall from my earlier post You Can’t Always Get What You Want, Shomi and CraveTV were oddly set up from a regulatory perspective. I struggled to understand how they were licensed and then finally it became clear to me (with some help from friends in the know) that both services were actually two services rather than one. The VOD service on your set-top box was regulated as a VOD service and the OTT service on your tablet/computer/phone was exempt under the Digital Media Exemption Order. That created the very odd situation that the VOD service had CanCon obligations but the OTT version did not but the consumer thought it was all the same service.
Very confusing, right? Even executives at Shomi and CraveTV were confused as they publicly stated that they had no CanCon obligations at both Banff Connect and Prime Time (though Bell’s Kevin Goldstein had no doubts about the twin-spirited nature of CraveTV).
The other problem though was that as an authenticated service (you have to identify yourself as a subscriber of a cable or satellite company that has a business agreement with Shomi or CraveTV as the case may be), if you were a subscriber of say Rogers then you could not subscribe to CraveTV. Or vice versa.
Today’s decision focused on the issue of exclusivity, which is a third issue that addresses the problem that, for example, Bell subscribers have no way of seeing “Transparentâ€, which is exclusive to Shomi. The CRTC’s argument is that it is ok if Netflix has exclusive content (e.g. “The 100â€) because any Canadian can access it through their choice of internet provider. The same cannot be said of the exclusive content licensed by Shomi and CraveTV.
So the CRTC created a new licensing category for these ‘Hybrid VOD’ services, which makes total sense to me. The CRTC reiterated that to operate in Canada a service has to be authorized by the CRTC under a licence or an exemption order and then it must abide by the rules of that authorization (*cough* Netflix *cough*).   If a service is going to operate under the Digital Media Exemption Order then it has to be available to all Canadians over the internet. So a Hybrid VOD service can only take advantage of the Digital Media Exemption Order (and therefore no CanCon obligations) if it is ‘offered on the Internet to all Canadians without authentication to a BDU subscription’. Those exact words are key because Bell Media has always said that they offer CraveTV to Rogers and Shaw and it’s not their fault that Rogers and Shaw aren’t interested. The CRTC has sidestepped the whole issue of competition by saying that no BDU subscription can be required.
The exact wording of the new exemption has to still to be agreed upon and that could be contentious as Bell, Rogers and Shaw all fight to stay both exempt and not exempt. And we know that Bell is not afraid to appeal. So don’t expect any changes overnight but they could be coming.
