Earlier today, I appeared before the Standing Committee on Canadian Heritage as its first witness on a new study on Canada and New Media. I’ve posted my opening remarks below, but the 90 minute discussion is much more interesting as it covered a wide range of issues from copyright to the iPod levy to networks to the digitization in Canada. Listen to the audio stream or read the transcript.
Appearance before the Standing Committee on Canadian Heritage
March 25, 2010
Good morning. My name is Michael Geist. I am a law professor at the University of Ottawa, Faculty of Law, where I hold the Canada Research Chair in Internet and E-commerce Law. I am also a syndicated weekly columnist on law and technology issues for the Toronto Star and the Ottawa Citizen. I was a member of the National Task Force on Spam struck by the Minister of Industry in 2004 and on the board of directors of the Canadian Internet Registration Authority, which manages the dot-ca domain name space, from 2000 – 2006. I also currently serve on the Privacy Commissioner of Canada’s Expert Advisory Committee.
I appear before this committee today in a personal capacity representing only my own views.
The committee has posed several questions, but I think two capture the essence of the issue – first, how have developments in digital media changed the media environment? Second, what can government do?
First, how have things changed?
As we shift from a world of scarcity to one of abundance, we are seeing Canadians play an important role. Record labels like Nettwerk Records in British Columbia or Arts & Crafts in Toronto are at the forefront of using the Internet to promote their artists and benefit from its great potential. Notwithstanding some doom and gloom, the Canadian digital music market has grown faster than the U.S. market in each of the past four years. We rank 7th worldwide in digital sales, virtually identical to our 6th place ranking for offline sales.
The Canadian entertainment software industry is growing at a breathtaking pace, with regular investments in Quebec, Ontario, and British Columbia. It is not legal frameworks that dictate the investments, but rather Canadian talent, creativity, and marketplace success. Smaller players are finding success in new markets like iPhone and Facebook applications. The television network The Score is a North American leader for its online app and companies like Polar Mobile supply to a global market.
Canadians are playing a key role in new book models as well. For example, Wikitravel, one of the Internet’s most acclaimed travel web sites, was launched in 2003 by Montreal residents Evan Prodromou and Michele Ann Jenkins. Using the same wiki collaborative technology that has proven so successful for Wikipedia, the Wikitravel site invited travelers to post their comments and experiences about places around the world in an effort to build a community-generated travel guide. The site has accumulated more than 30,000 online travel guides in eighteen languages, with over 10,000 editorial contributions each week. The content is freely available under a Creative Commons license that allows the public to use, copy, or edit the guides.
Building on Wikitravel’s success, Prodromou and Jenkins established Wikitravel Press, which represents a new approach to travel book publishing based on Internet collaborative tools and print-on-demand technologies.
The compelling stories are not limited to new entrants. Consider the National Film Board of Canada. The NFB may never replace YouTube in the minds of most when it comes to Internet video, but a series of innovations have highlighted the benefits of an open distribution model and the potential for Canadian content to reach a global audience online.
Last year, just months before the NFB celebrated its 70th anniversary, it launched the NFB Screening Room, an online portal designed to make its films more readily accessible to Canadians and interested viewers around the world. To meet its objective, it committed to be as open, transparent, and accessible as possible, including making the films freely available and embeddable on third party websites.
In January 2009, the site started with 500 films. Today, the number of available films has nearly tripled, with almost 1,500 films, clips, and trailers. The growing selection has been accompanied by a massive increase in audience. There have been 3.7 million online film views over the past year – 2.2 million from Canada and 1.5 million from the rest of the world. That number is set to continue to grow as daily views have jumped from 3,000 per day in January 2009 to more than 20,000 film views per day in January 2010.
The site also uses mobile technology to increase public access and exposure to Canadian films. In October 2009, the NFB launched an iPhone application that has been downloaded more than 170,000 times and led to more than 500,000 film views on the ubiquitous mobile device.
Similarly, the CBC has experimented with new distribution models. In 2008, it released a high-resolution version of the program Canada’s Next Great Prime Minister without copy protection on BitTorrent, the peer-to-peer protocol that is often linked with unauthorized file sharing. The public was able to download, copy, and share the program without restrictions.
The use of BitTorrent may come as a surprise to those who mistakenly equate file sharing solely with infringing activities. BitTorrent and other peer-to-peer technologies are finding increasing favour with legitimate businesses attracted to its ability to distribute content in an efficient, cost-effective fashion.
Indeed, the CBC’s model came from the Norwegian Broadcasting Corporation, which earlier used BitTorrent to distribute “Nordkalotten 365,” one of the country’s most popular programs. The experiment proved very successful, with tens of thousands of downloads at virtually no cost to the broadcaster
What Should Canada Be Doing?
These are a just a tiny fraction of the success stories – we could canvass sector-by-sector to see how the Internet is proving enormously valuable to creators, consumers, and producers.. The question is what more can the Canadian government do? I would point to five issues as a starting point for discussion.
Canadian telecommunications networks were once the envy of the world. No longer as Canada now ranks far from the top in virtually every international ranking. Ensuring that all Canadians have access to high-speed networks that rival current leaders such as Japan and South Korea should be a top-priority. This is often perceived as an industry issue, but there is a critical Heritage dimension. We need to recognize that policies on high-speed networks and competitive wireless pricing are directly linked to new media success since they are two key distribution systems of Canadian digital content. This involves several issues including:
- Ensuring universal access for all so that Canadian new media is accessible to Canadians
- Promoting investment in fast fibre-to-the-home services so that Internet-based distribution models can take hold and remove the bottleneck of limited screen space or channel availability faced by Canadian creators in years past
- Assist Canadians to become part of the creative and participative process. The divide of users and creators has blurred and we need networks that facilitate participation, not just consumption.
- Enforce network rules of the road – including net neutrality and traffic management guidelines – so that all content is afforded an equal opportunity and does not fall victim to limited access based on the kind of content or program used to distribute it.
There are few issues more central to new media policy than digitization. Most countries have recognized the need to ensure that national content is both preserved for future generations and made more readily accessible to the public. In Canada, plans have languished to the point that it feels as if someone has hit the delete key on the prospect of a comprehensive Canadian digital library.
Canada’s failure to keep pace has become readily apparent in recent years. In September 2005, the European Union launched i2010, a digitization action plan. Several years later, Europeana debuted, a website that provides direct access to more than 4.6 million digitized books, newspapers, film clips, maps, photographs, and documents from across Europe. The site plans to host 10 million objects by the end of this year.
By comparison, Canada seems stuck at the digitization starting gate. Library and Archives Canada was given responsibility for the issue but was unable to muster the necessary support for a comprehensive plan. The Department of Canadian Heritage, which would seem like a natural fit for a strategy designed to foster access to Canadian works, has funded a handful of small digitization efforts but has shown little interest in crafting a vision similar to Europeana.
3. Government as a Model User
In recent years, many countries have embraced open data initiatives, including both the U.S. and U.K. Others, such as Australia, have adopted open licences to make government content more readily usable and accessible. We have started to see the same thing in Canada at the municipal level, with Vancouver, Edmonton, and Toronto leading the way. Open government data is consistent with government transparency goals and holds great economic potential by inviting Canadian businesses to add value to public data. Canadian policy should encompass open government data, the removal of crown copyright or adoption of open licenses, and a commitment to equality for open source software procurement. Much like the City of Vancouver, we should be talking about open data, open standards, and open source.
4. Cultural Policy
Canadian cultural policy has long focused on the creation and promotion of Canadian culture. The Government has already begun to shift much of its support toward new media and digital platforms. As we move from a world of scarcity (limited bandwidth and access to culture) to one of abundance (near unlimited access to culture), Canadian policies must shift from increasingly unworkable regulations that limit access to foreign content toward efforts that back the creation and promotion of Canadian content. In fact, with a new spectrum auction planned within the next two years, strong consideration should be given to earmarking the proceeds toward a digital strategy, including digital culture funding.
It goes without saying that copyright policy is an important part of a government new media strategy. As part of that policy, I think it absolutely crucial to ensure that we maintain the copyright balance that exists offline in the online world. That means that creators receive appropriate compensation and have the flexibility to create. It means that users maintain their user rights. And it means that companies do not face an intellectual property thicket when they attempt to innovate in this space.
I would point to three key areas. First, Canada should implement the WIPO Internet treaties. The WIPO treaties offer considerable flexibility in how to implement anti-circumvention rules, however, a fact recently confirmed in the Conference Board of Canada’s report on intellectual property. That means we can implement the treaties by ensuring that we link circumvention to copyright infringement.
Second, intermediary liability. This should be an easy one. Both Bills C-60 and C-61 adopted the same approach – notice and notice. This involves a copyright holder sending a notification to an ISP who is then obligated to send the notification on to the subscriber. These notifications work – the Business Software Alliance has noted their effectiveness as many users receive the notification and alter their conduct accordingly. Recently, the Entertainment Software Association of Canada pointed to its own study that found 29% did not respond to a notice – leaving an impressive 71% who did.
Third, fair dealing. Today, we all recognize there is a problem with fair dealing – everyday activities like recording television shows or format shifting are not covered, artistic endeavours like parody are not covered, teaching activities not covered, and innovative businesses often can’t rely on the provision. This goes to the heart of new media creation. The solution – a clean, simple approach would be to add two words – “such as”– so that the current list of fair dealing would become illustrative rather than exhaustive and we would build in flexibility but not lose fairness. It is fair dealing, not free dealing.
This is an exceptionally exciting period, filled with new potential for creators, consumers, and Canadian business. The Internet and digital world offer new ways to meet the challenges of yesteryear such lack of screen time, barriers to the audience, high costs of production and distribution. It is great to see this committee grappling with this important issue. I welcome your questions.