My weekly technology law column (Toronto Star version, homepage version) reprises last week's post on the submissions to the CRTC as part of the new media hearing. The Canadian Radio-television and Telecommunications Commission new media hearings are not scheduled to begin until mid-February, yet they have already attracted more than their fair share of controversy. With talk of imposing a tax on Internet service providers to fund Canadian content or the imposition new licensing and Canadian content requirements, the outcome could dramatically reshape the Internet in Canada.
The deadline for formal submissions closed ten days ago, leaving Commission officials to spend the holidays wading through thousands of pages from broadcasters, telecommunications companies, creator groups, and a handful of individual Canadians who took the time to voice their views.
At the heart of the submissions are two competing visions of the Internet and new media in Canada. One side – supported by telecom companies, broadcasters, and several industry groups – maintains that the CRTC's 1999 decision to take a hands-off approach to the Internet has largely worked. They argue that new media and the Internet have flourished and that the Commission should heed the adage that "if ain't broke, don't fix it."
These groups have supplemented their policy arguments with legal ones, filing multiple legal opinions, including one from former Supreme Court of Canada Justice Frank Iacobucci, that cast doubt on the CRTC's legal power to impose certain forms of new Internet regulation.
The counterargument comes from creator groups such as ACTRA, SOCAN, the Canadian Film and Television Production Association, and the Writers Guild of Canada, who believe that the 1999 decision was mistake and that the CRTC should take this opportunity to reverse it.
Should the Commission agree that the hands-off the Internet approach should be revisited, the major question then turns to what should be done. There are two approaches on the table – one that focuses on creating an Internet broadcasting framework that matches conventional broadcasting regulation and the second that emphasizes promoting Canadian content by ensuring equal access to it.
The first approach starts with rescinding the 1999 new media exception and introducing new regulatory requirements for the broadcast of new media on the Internet. This would effectively treat Internet-based broadcasting in the same manner as conventional broadcasting.
Those promoting a regulatory approach propose a range of measures. For example, SOCAN calls for the introduction of a minimum of 51 percent Canadian content requirements for Canadian commercial websites. ACTRA argues that the Commission should licence new media undertakings, arguing that "the Commission should also require that those who are making programs available from Canada, through the Internet or to mobile receiving devices, for viewing at a time and place chosen by the user be licensed." In fact, ACTRA maintains that the definition of Internet broadcasting should be expansively interpreted to even include user generated content, which could turn thousands of Canadians into regulated broadcasters.
A handful of broadcasters also support new regulation. The CBC maintains that "new media content aggregators" should be regulated, while Sirius Satellite Radio, itself a beneficiary of modified Canadian content rules, now argues that Internet radio delivered to mobile devices should be regulated.
In addition to regulatory and licensing requirements, many (though not all) of these same groups support the imposition of a new tax on Internet service providers to be used to fund the creation of Canadian new media. ACTRA assumes the lead role in this regard, seeking three percent of ISP broadband revenues and 0.6 percent of wireless service provider revenues. Telecommunications companies, business groups, and the Competition Bureau unsurprisingly oppose the ISP tax plan.
Alternatively, many of the submissions provide the Commission with a different approach that avoids licensing, new taxes, and new media regulation. Instead, these submissions point to the need for net neutrality – the assurance that Canadian new media can be accessed on an equal footing with foreign and conventional content. Supporters of a net neutrality approach to new media include ACTRA, the Canadian Independent Record Production Association, the Canadian Music Publishers Association, the Canadian Conference of the Arts, Maple Leafs Sports and Entertainment, Score Media, the Documentary Organization of Canada, and the Canadian Association of Internet Providers.
The new media hearings are still a couple of months away, yet the likely debate has now come into sharper focus with Internet regulation, an ISP tax, and net neutrality emerging as the three key battleground issues.
The hijacking of the term net neutrality by a number of groups proposing to tax the internet or impose preferences and priorities for Cancon online takes artistic license to a new low. Anyone who thinks that ACTRA or the Directors Guild want consumers to have open access to any content whether its from HBO or the CBC without any government intervention has not read their submissions. One need look no further than the ACTRA submission to see its not net neutral. Rather ACTRA asks the CRTC to:
– Require that those who are streaming programs from Canada, through the Internet or to mobile receiving devices, be licensed and subject to rules equivalent to other programming undertakings which broadcast on a fixed schedule.
– Require that those who are making programs available from Canada, through the Internet or to mobile receiving devices, for viewing at a time and place chosen by the viewer, be licensed, required to provide a program selection that is predominantly Canadian, required to provide appropriate promotion for their Canadian content, and be subject to other regulations equivalent to other on-demand programming undertakings.
Regulating the internet like the broadcasting system is anything but neutral.
A few things
The problem starts with the fact that they seem to think that the Internet “broadcast”. The Internet is more like a library then a brodcasting system. Do I choose a channel and constantly receives stuff on the Internet? Except on a few cases, no. I connect myself to a server and grab whatever I want on it. Nothing is pushed on me forcefully, outside of malwares of course.
All I see here is a bunch of big business jumping in on the bandwagon now that the Internet is growing strong, and want a piece of the pie they haven’t helped cook. Why would singers (their producers) deserve money from ISP software programmers, who lose much more money over piracy?
Why would I want to pay this kind of levy when I don’t even listen to canadian music (nor american) outside of the radio and the few cds I buy to listen in my car when the radio is boring.
What kind of self-entitlement is that? Let me help the artists I want to help instead of giving my money to untalented/boring/canned-produced artists.
I’m sorry, but did I read that correctly???
Are you saying that if my improv troupe decides we want to create a series of webisodes, on our website, that would generate revenue for our troupe, we would have to be licensed? And that this idea came, not from the commercial networks or big business who might actually lose money from our endeavours, but from entertainment unions, the very groups who are suppose to protect the interests of entertainers??? In essence, we can produce anything we want BUT if we make a buck doing it we’re required to kick back something to everyone who refuses to adapt to the new technologies.
Is that it or am I reading too much into this? How many licenses would the CRTC be issuing? On what grounds? Covering what content? What happens when the CRTC decides a group does not warrant a license? Who polices this? What if you generate the content in Canada but host the website off shore? What about foreign websites & webisodes not governed under these same rules, are they going to be blocked? if so, what happened to Net Neutrality? When is the next flight out of this control-freak lead nation so we can actually accomplish things without everyone wanting their cut for doing nothing?
To Peter
Might I add, with the time it takes to get a license with the CRTC, you can bet there’s not gonna be unlimited license, but instead a very limited number of them.
I’m really starting to consider moving somewhere else.
“New” Media ?
I bet if they start taxing the internet to help fund Canadian productions only a privileged few will have access to the funds. If you want more Canadian content give more Canadians the freedom to produce their own content – not the privy few.
We want more money!
More from what?
The internet!
(see south park)
In their best interest…
Face it, 90% of Canadian content sucks, so why should I have to pay for it!
Prof. Geist, what is your opinion? Don’t you think the creators are perverting the spirit of the Broadcasting Act? Intermediaries are easy targets. Creator groups are shooting the messengers instead of going after the end-users. We all know why. Going after the end-users would be too expensive.
Scrutiny needed
We need to scrutinize the validity of these “creator” groups as well as the CRTC’s authority.
In a poor country, if you want money, become a police official. In Canada, when the “creator” groups want funding for their self-interest, they come to the CRTC?
Sturgeon’s Rule
Barry: you’re not saying anything about Canadian content that Theodore Sturgeon didn’t already say about creative content of humans in general decades ago.
As for my having to get a license to “broadcast” anything that’s wholly mine on the Net, or in partnership with others, Canadian or not…why? All due respect to my friends and friendly acqaintances who hold memberships in DGC, WGC, ACTRA, SOCAN et al., but why should I?
CRTC is out of touch
And what is stopping a website from moving from a Canadian ISP to an American ISP?
With out of touch legislation like this, we can say good-bye to the web hosting industry in Canada and innovation in Canada. I don’t see how it can be regulated, unless we want to create the Great Maple firewall around Canada. To even consider regulating the internet is insanity.
Canadians would be better off without a CRTC. I have no problem with taxpayers funding the CRTC, as long as all power is removed from the CRTC and it is not allowed to regulate anything. It is a dinosaur that has not adapted to the digital age.
The internet is a wonderful thing for human society promoting equality and collective intelligence. It may scare some that the internet is the great equalizer, where the poor have access to the same information as the rich.
I fail to see the logic
If you want to see more Canadian content online, wouldn’t you want to make the internet cheaper or free in Canada, instead of more expensive? One would almost think they care more about stealing our money, than increasing Canadian content online.