The CRTC opened the new media hearings today with considerable media coverage and live blogging from the Globe and Mail.  Today's discussion cut directly to the most controversial issues – new media regulation and an ISP levy.  Interestingly, CRTC Chair Konrad von Finckenstein wasted little time asking the Canadian Conference of the Arts why it emphasized the link between new media regulation and net neutrality, indicating that he did not see the relationship.

Throughout the hearings, I'll be teaming up with Carleton professor Ira Wagman to offer up a full summary of the day's events as we'll have students carefully taking notes on all the presentations and discussions.  My thanks to Samantha Montreuil for attending today's hearings and compiling the following review of the day's events.

Welcome from Chair Konrad von Finckenstein

In 1999, the CRTC became one of first regulators in the world to examine new media and the question of if and how it should be regulated. Ultimately, the CRTC decided to exempt new media from regulation for three main reasons:

1. Licensing and regulation would not help the development of New Media.
2. A lack of regulation of new media would not impede the ability of other media forms from fulfilling their duties
3. The Commission felt that New Media needed more time to become competitive.

Today, Canadians are one of the populations that spend the most time online. Since new media has developed rapidly within the last 10 years, the CRTC feels that it is time to re-examine the question of regulating broadcasting within new media platforms; these hearings are to examine strictly broadcasting in new media and nothing else. The commission also seeks to examine the question of how to measure content and consumption of new media in order to implement any eventual regulatory measures.

Alain Pinot – Canadian Conference of the Arts

Pinot underlined the fact that given the CCA mandate of promoting Canadian culture, the organization firmly believes that appropriate regulatory measures of new media broadcasting are essential to the achievement of their mandate as well as to the objectives of the Broadcasting Act. Pinot underlined the importance that the CRTC act quickly to implement such regulations in order to protect Canadian content, a public good not protected by the free markets.

Many broadcasters are currently re-using broadcasting material online. Pinot pointed out that in doing so the content they broadcast is no longer subject to the regulations that govern traditional forms of broadcasting and that there is a striking lack of Canadian content being broadcast through new media.  Canadian content is expensive to produce and without legislative intervention to help it is being drowned out by international programming, most notably that of the US, which takes up most of the shelf space allocated to new media. Through regulation, the CRTC would help to facilitate access of Canadian cultural material by Canadians; an important and worthwhile objective of the CRTC.

Furthermore, broadcasting via new media is something from which ISPs and WSPs continue to draw considerable financial benefit through measures such as being able to charge more for increased bit use by users. According to the CCA, it is time ISPs be required to contribute their full weight by paying a levy into a new media production fund. In imposing this fund, Pinot was careful to distinguish between small broadcasters who should continue to be exempt from regulation, and large broadcasters such as Global and CTV. User-generated content should also be exempt from regulation.

However, there are many logistical challenges and details that have yet to be worked out. Most notably that of how to measure consumption of content. The internet is abundant, and despite many concerted efforts from individuals and companies throughout the broadcasting industry, a method of generating accurate measurements of consumption is yet to be developed.

Another issue, is that of how a fund would be administered. Pinot stated that many members of the new media community were wary of a fund which is part of the Canadian Television Fund, as they fear that producers of media for traditional forms of broadcast will monopolize it.  

CRTC Chair Von Finckenstein started his line of questioning with a rather adversarial tone. In their submission, the CCA had suggested that the current new media hearings be held in conjunction with the hearings on network management that the CRTC plans to hold in the spring as the CCA considers the two issues to be related. The Chair commented that he does not understand how the CCA could consider the two issues to be related and questioned the assumption that network management and shelf space were related issues. He pointed out that the internet has an abundant amount of space and called into question the CCA’s assertion that shelf space is being filled with US content, as there is no lack of space on the internet which would prevent the two from co-existing. Pinot responded by reiterating that the network management measures being implemented by ISPs and the fees required for additional bytes downloaded each month essentially place limits on the otherwise abundant space on the internet, which is ultimately what creates this competition and endangers Canadian content.

The Chair also called into question the CCAs assertion that ISPs are benefiting from new media and should accordingly be required to pull their weight. They asked for examples of how ISPs benefit. Pinot cited the various fees that accompany excessive bit usage each month and other similar fees as these benefits and repeated that if they are going to draw financial benefit from the use of new media, they should be obligated to contribute to its production.

The Commission then asked which factors should be included in the CRTC's measurement of content consumption. The CCA listed several elements, most notably how much new media content is being created versus reused, how much Canadian content is being viewed and how that material is being promoted, in addition to how Canadian content is being affected by traffic management and how much of a Canadian presence is effectively achieved through new media.

ACTRA

ACTRA President Richard Hardacre started the presentation by reiterating that in 1999, when the commission initially looked into new media, ACTRA said that it should be regulated. Ten years later, ACTRA still believes it is time for the CRTC to fulfil its objectives defined by the Broadcasting Act.  To achieve this, ACTRA made several proposals including that the CRTC:

1. Require those streaming programs from Canada be licensed and subject to rules
2. Require those making programs available to Canada be required to promote and include Canadian content.
3. Impose levy on ISPs.

Actor Colin Mochrie [who published an op-ed in the Ottawa Citizen today] then took the floor by stating that the Broadcasting Act defines the word "program" as any audio or visual waves transmitted to inform, enlighten, or entertain. ACTRA encourages the CRTC to adopt the expansive view of program. He cited a Harris poll as saying that roughly 70% of what people do while on the internet is watch content online. In light of the overwhelming number of people viewing programming online, it is important for the CRTC to consider new media as another form of broadcasting, with the unique characteristic that possibility of content is unlimited. 

Mochrie reiterated the point raised by Pinot that Canadian content can easily get lost in this abundance of content. He called on the CRTC to make sure that Canadian content is easy to find through regulating the amount of Canadian new media programming made available. Mochrie respectfully stated that ACTRA believes that the CRTC concluded wrongly in past hearings in finding that interactive content falls outside of their broadcast jurisdiction. He stated that not only should new media be included in regulatory measures, but that such measures should also include online games. He justifies this assertion by explaining that the line between games and performance media is constantly being blurred particularly through the inclusion of interactive content in television programming and the inclusion of live footage in online games. He also explained that, in opposition to the CCA, ACTRA encourages the CRTC to include user-generated content in any regulation they implement.

Mochrie then introduced actor Charlotte Arnold to continue the presentation. She cited her personal experience as an actress with the program Degrassi – The Next Generation of an example of programming created for traditional broadcast media that posts new original content specifically for new media. This formula has seen a great deal of success, and is a perfect example, according to Ms. Arnold, of how new media is forcing mainstream broadcasters to compete with themselves. She restated ACTRA’s position that new media is just another broadcast platform to be regulated.

Bruce Dinsmore then took the floor, commenting on his unique experience as an actor on Tac TV, a program created specifically for the internet which has experienced huge success. On average, TakcTV and its French version Têtes à claques receive a million views a day. Dinsmore cited this as just one example for the huge market that exists for new media. He then called upon the CRTC to require ISPs to pay a levy to help continue to ensure the production of such new media, from which they benefit. He proposed that ISPs be required to pay 3% of their revenue to any new media fund that is created. He described 3% as being equitable, reasonable, sustainable, and essential for the survival of Canadian new media content. He also pointed out that 3% is half of what traditional broadcasters pay to the Canadian Television Fund which accounts for the fact that not all of the profits of ISPs are generated from the broadcasting of new media.

Richard Hardacre then concluded the presentation by comparing the shift to new media to the shift from radio to television and, while acknowledging the existence of a transition period, called for the creation of a fund which would allow actors and performance artists to share Canadian content with not only Canadians themselves, but also with the world.

The Commission began their questioning of ACTRA through rephrasing the question they had asked previously asked Pinot, namely how ACTRA would justify regulating new media, which benefits from an abundance of space, whereas regulatory measures of traditional broadcasting mediums has been based on the finite nature of a twenty-four hour model based on the presentation of one program at a time. ACTRA responded that while actual broadcasting space is increased through the use of new media that shelf-space still needs to be reserved for Canadian content which is suffering due to the current lack of regulation.

The Commission also asked ACTRA for its view on the effectiveness of the current funding model for traditional broadcasting. ACTRA noted that the Canadian Television Fund has been very effective in promoting the creation of Canadian programming, but considerably less effective in convincing broadcasters to actually air it. ACTRA cited the drama genre as suffering particularly due to its high production costs; they also noted that this should be an area to which the CRTC particularly seeks to incite the creation of programming as it generates a large amount of employment. ACTRA also raised the point that Canadian broadcasters are not putting enough money into licensing Canadian programming.

The CRTC wanted to know if regulations were imposed, whether funding would still be necessary. ACTRA was firm in their view that if funding and regulation were not imposed together, the effectiveness of either measure would be greatly reduced.  ACTRA cited the Canadian film industry as an example of funding without regulation and how Canadian films are still being overshadowed by Hollywood because of the lack of regulatory measures.

The Directors Guild of Canada

The Guild began their presentation by stating their agreement with the previous two presenters’ position that new media constitutes a form of broadcasting. However, their position is that regulation should be defined in terms of user control over media; any new media entities which do not allow users to select programming should be obligated to reserve shelf space for Canadian content. They then cited three examples of new media used to broadcast.

First, the producers of a feature length film created a website with various new media elements. These included a documentary which profiled the creation of film. Clips of the documentary were posted regularly which fed user discussion. Once completed, the final version was posted and users were allowed to create their own mash-ups in addition to posting their comments. The film was helped by the promotion achieved through the new media content, but also had a successful life on its own. The entire project was funded by the director through a mortgage on house. He emphasized the necessity of a fund, stating that the ‘film industry is in a sorry state if I am required to persuade my wife to do that again [to ensure the survival of the industry].’

Second, the series “Sanctuary” has employed new media to create screen caps and mash-ups of the show. Un-edited versions of episodes which has actors performing in front of green screen are posted on the site, allowing users to create their own versions of the show. This is an example of new media production creating a life of its own and its own fan base, which then fed into the success of traditional media form.

Third, the Toronto-based Stradfilms is owned by a film-maker who creates and distributes films on his own server, allowing him to bypass the traditional Hollywood film distribution model.
These ventures are driven by producers themselves and not ‘old gate keepers’ of the industry. Each of these types of initiatives could flourish with appropriate funding. However, if the CRTC agrees to the creation of a new media fund, they must create a separate fund to ensure that it is for new media production only and does not become a back door method for funding television production.

The Directors Guild of Canada firmly believes that the time has come in development of new media to require ISPs and WSPs to contribute to development of content, based on a certain percentage of their revenues. The percentage should be determined in light of the fact that not everything on ISPs is broadcasting. The Guild pointed out that the Commission has recognized that dramas and documentaries are the most difficult genres to finance and asserts that funding should largely be attributed to this end. The Guild also suggests that a certification process for registering platforms be implemented requiring that broadcasters provide certain amount of Canadian content. In other words, the broadcast and promotion of Canadian content should serve as a gateway criteria to access funding and incentives.

The Commission reiterated their question to previous presenters as to why the Guild feels that any new media fund created should be distinct from the Canadian Television Fund. The Guild explained that, while it is desirable for new media production to migrate to traditional platforms, the regulation of and creation of a new fund for new media is a unique opportunity to promote the development of specifically new media.

The Commission asked the Guild to comment on where they consider Canada to be today on the continuum between traditional and new media. The Guild cited a recent meeting with their American counterpart in speculating on a transition period of about 10-15 years to move from traditional to almost entirely new media broadcasting.

L’Association des producteurs de film et de télévision du Québec

Like the three previous presenters, the APFTQ opened their presentation by reiterating the necessity for funding from the CRTC to help ensure the survival of Canadian, and particularly francophone content in light of globalization and the extreme competition in new media. It believes that the CRTC also needs to help define a fair and transparent process for negotiations between producers and broadcasters.  

The APFTQ proposed that the CRTC create a commission to observe and study new media use. This could help to harness the opportunities created by new media as well as to minimize the risks and obstacles it creates. The commission could examine what Canadian content currently exists in new media, how much of it is being consumed, audiences that are being neglected, etc.

New media, in the opinion of the APFTQ, has become a complement to traditional programming. Broadcasters are creating podcasts, blogs, webisodes and other means of expanding upon programming presented in traditional broadcast formats.

Much like the CCA, the APFTQ believes that ISPs should have to contribute to a fund in light of the profits they are currently receiving from new media. Despite these profits, ISPs currently contribute minimally if at all to the production of Canadian content for new media and the lack of such content can largely be attributed to a lack of funding. The creation of a new media fund would allow for the creation of such content and to increase Canadian presence in new media.

According to the APFTQ the exemptions to regulation given to new media by the CRTC have allowed ISPs to exploit new media and to correct this exploitation these services need to be regulated. While the new media format which allows audiences to watch whatever programming whenever they want makes regulation difficult, licenses should be established based on the amount of Canadian content offered by ISPs.

The Commission then began their questioning by inquiring as to why the APFTQ feels that a new media fund separate from the Canadian Television Fund was necessary. The representatives of the association reiterated the concern previously cited by several presenters that if new media were to share funding with traditional broadcast forms, one would out-spend the other and ultimately strangle the other of a vital amount of funding; this would prevent the two forms from complementing each other as they do now.

The Commission also inquired as to the progress of francophone media producers in incorporating new media. The APFTQ admitted that compared to English-Canada, the large majority of francophone media producers are still in the ‘embryonic stages’ of developing media; however, the APFTQ also stressed that funding is even more important given the preliminary stages of development as it will only be able to progress through the allocation of funds.

L’alliance de producteurs francophones du Canada

The APFC began by calling attention to the fact that they are, along with TFO, the only producers of francophone new media content outside of Quebec. As an organization, they have a goal of promoting a sense of pride to francophones in minority communities throughout the country. While the APFC seeks to incorporate new media in their production strategies, more funding is desperately needed. In light of their specific needs, the APFC made three main suggestions to the CRTC.

1. The CRTC should conduct a study to ascertain the level of representation of Canada’s minority francophone communities in existing new media content. The APTF whole-heartedly supports the APFTQ suggestion of an independent committee to study new media use.
2. The CRTC should revoke the exemptions issued to new media outlets in 1999 and 2007 respectively.
3. The CRTC needs to develop a regulatory policy for new media which should include stipulations to ensure the presence of minority francophone communities. Such measures are even more important given the popularity of new media among youth which poses a huge risk of assimilation to all francophone communities outside of Quebec.

According to the APFC, new media offers a tremendous opportunity for French-Canadian communities to increase their visibility and ensure their survival. There is no shortage of producers of franco-canadian content provided that they can benefit from their efforts. To help them do so, the CRTC needs to implement initiatives to encourage the broadcast of independent producers. Furthermore, in order to respond to their obligations outlined in the Broadcasting Act and the Official Languages Act, the CRTC should mandate a certain amount of content produced by minority francophone communities be broadcast. This is key to ensuring the protection of linguistic minority communities outside of Quebec.

The Commission inquired as to why the APFC felt that public financing was so essential to the survival of their community and to the growth of their community’s representation in new media in light of the success of shows such as Têtes à claques without any public funding. The APFC responded that the têtes à claques was a unique success and also one that was produced for commercial motivations; in responding to their mandate to promote the franco-canadian culture, specifically among youth, the programs they produced are often in public interest and not for commercial gain.