New Code of Access Best Practices for BDU-Owned Community Channels

As you may be aware, the new community TV policy announced by the CRTC in September of 2010 (CRTC 2010-622) announced that an "industry working group" would be established to create of Code of Access Best Practices to guide cable operators in the administration of cable community channels.

CACTUS objected (as did the Fédération des télévisions communautaires autonomes du Québec--the Fédétvc) that the "industry working group" included five representatives of cable companies, and none from the general public these channels are meant to serve. In response to our complaint, the "working group" was told it must "consult" both the Fédétvc and CACTUS regarding the contents of the Code. The extent of this consultation was that the working group sent us a copy of their draft code. We and the Fédétvc submitted separate but similar comments to the effect that the Code gives cable companies too broad a scope to reject particular programming ideas on grounds such as "community values" and "public taste" (as determined by who?)

The working group ignored our comments, and submitted its draft Code to the CRTC. The CRTC posted the document for public comment in September of 2011. Since our comments had been ignored, both CACTUS and the Fédétvc resubmitted our comments as part of this public process. Finally, another year later, the Code of Best Practices was announced on September 7, 2012. Although the Code is largely the document proposed by the cable industry working group, it does include two new sections about dispute resolution and copyright (the latter echoing almost verbatim CACTUS' suggestions):

1. If disputes arise about access between producers and any broadcast distribution undertaking (BDU) and it cannot be resolved by the parties, a third-party arbitrator agreeable to both parties is to be appointed. Any expenses related to the arbitration are to be borne by the BDU.

   While we approve the availability of an occasional arbitration process―-and although community advisory committees that might be involved in the day-to-day operation of cable and other BDU community channels are suggested in 2010-622—-there is still no requirement that BDUs establish such committees, which might have day-to-day input into access practices..

2. The copyright for access programs stays with community producers, regardless of how much assistance they receive from BDUs. BDUs can play the program within the licenced area, but the community producer may sell or exploit the program on any other platform they wish.

This is a fundamental and important shift. While back in the day it was relatively easy for volunteers to propose program ideas and to produce them with cable company assistance, it was always the cable company that retained copyright. Over time, as cable company staff took more and more control over community channel content, this led to a perception that it was volunteers who assisted cable company staff to make programs, and not the other way around. The new Code asserts the opposite: that insofar as the 50% of the programming schedule that is meant to be community-access at least, it is the BDU that assists community members to get their ideas to the small screen.

This ruling shows that while CACTUS has been largely ignored to date by the federal regulator regarding the inappropriateness of for-profit corporations controlling what should be a community-managed resource, it does demonstrate that when an issue tightly corresponds to a political hot button of the day (copyright), you can get results.

The problem, of course, is that the Code as written gives too much latitude to BDUs to decline particular programming ideas in the first place, so a given program proposed by a given community member may never get made at all.

There's no question that this is a moral victory, but it remains to be seen whether it is a practical one. To read the CRTC's decision and the full text of the new Code (the Code is Appendix 1 to the decision), see:

Code of Access Best Practices.

Let us know what you think of the new Code and how it is likely to affect you. (All members can comment on any article.)