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Advancing technology threatens cultural policy

In the fall of 1998, the Canadian Radio-television and Telecommunications Commission (CRTC) held its closely-watched New Media hearings, which addressed the contentious question of whether it should regulate the Internet. Several months later, the Commission heeded the advice of the parade of witnesses who urged it to leave the Internet alone, announcing that though the intersection of the Internet and broadcast regulation left it legally entitled to regulate, it would not do so.

Six years later, it has become apparent that the New Media hearings were fundamentally flawed since the CRTC asked and answered the wrong question. The critical issue was not whether the Commission should regulate the Internet, but rather whether the Internet would come to regulate the Commission. Stated another way, the real question — the one that Canadian policy makers have largely avoided addressing — is whether Canadian cultural, broadcast, and telecommunications policies can survive in the age of the Internet.

This larger issue has moved to the fore recently as the CRTC, Canadian courts, and Canada’s policymakers grapple with a remarkable array of new policy issues that revisit the intersection of law, policy, and technology.

For example, less than two months after its Internet telephony hearings examined the power to enforce telecommunications policy on foreign providers, the CRTC last week conducted a major hearing on the entry of satellite radio into the Canadian market together with the prospect for retaining Canadian content requirements.

Meanwhile, ten days ago a Quebec judge struck down as unconstitutional satellite television regulations that limit Canadians’ access to gray market television signals on the grounds that the rules violated the Charter of Rights and Freedoms’ guarantee of freedom of expression. That decision follows recent Canadian Supreme Court decisions that herald a new era in copyright law by emphasizing the societal goals of the law as exemplified by the need for a balanced approach between the rights of users and those of creators.

Although each of these developments stands on its own, there is a common thread that runs through each case or hearing (along with several more including the Canadian Recording Industry Association’s unsuccessful attempt to unmask 29 alleged file sharers, the Canadian Heritage parliamentary committee’s alarming copyright reform recommendations, and news that Industry Canada is considering importing the “broadcast flag” into Canada by July 2005). At their heart, these policy and legal cases challenge the ability of Canadian leaders, such as Industry Minister David Emerson, Canadian Heritage Minister Liza Frulla, and CRTC chair Charles Dalfen, to adapt decades-old Canadian policies into new technological environments that do not easily lend themselves to traditional policy approaches.

The pair of CRTC hearings illustrate the magnitude of the task. In addressing Internet telephony, the CRTC is guided by Canada’s Telecommunications Act, which affirms “that telecommunications performs an essential role in the maintenance of Canada’s identity and sovereignty” and identifies nine key policy objectives which include reliable service nationwide, the promotion of Canadian ownership of the telecommunications system, and privacy protection. While those policy goals remain relevant today, the ability to effectively enforce them in an Internet telephony environment that does not respect national borders presents the CRTC with a seemingly unmanageable responsibility.

Similarly, the CRTC hearings on satellite radio and the Quebec court decision on satellite television highlight the tension between maintaining cultural policies such as the promotion of Canadian content that are identified at length in the Broadcasting Act and the ability to rein in borderless technologies like satellite transmission. Canadian policy has traditionally relied on marketplace protections, including the blocking of U.S. television services from entry into our market, in order to develop Canadian cultural alternatives. The continued viability of that approach has been called into serious doubt, however, complicated by both Charter legal challenges and the growing popularity of gray market television and radio alternatives throughout the North American marketplace.

The copyright cases and the reform proposals face similar tensions. Canadian courts and policy makers have been asked to address emerging digital copyright issues while simultaneously maintaining fundamental values such as personal privacy and carefully preserving the copyright balance by rejecting proposals that would eviscerate the fair dealing rights that teachers, historians, researchers, and millions of individual Canadians rely upon.

Unfortunately, the Canadian response to the challenges posed by the intersection of law, policy, and emerging technologies has been largely to paper over the growing tensions by relying on either market-based solutions or ill-advised legislative proposals that reflect the hope that we can legislate our way out of a difficult issue.

The New Media decision and many of the Internet telephony submissions illustrate the focus on the adoption of market-based solutions that push Canadian cultural policies to the sidelines by advocating for minimal regulatory intervention.

The immediate call for new satellite television legislation restricting individual Canadians’ access to foreign services (despite concern that such laws are unconstitutional) and the intense lobbying for new copyright reform (despite strong evidence that industry woes are not due to any alleged shortcomings in the current Canadian copyright law) provide recent examples of ill-advised legislative proposals.

It has become increasingly clear that the failure to address issues created by emerging technologies has doomed many of Canada’s cultural policies to failure. Recent Statistics Canada data indicate that Canada now has a nearly $1 billion annual cultural services deficit, boosted by rapidly increasing copyright and trademark royalties that flow out of the country.

The news is little better in specific sectors — for every dollar earned by Canadian sound recording artists in foreign markets, Canadians send $5 out of the country to compensate foreign artists; Canadians import nearly three times the number of books as they export (as measured in dollars); and the Canadian broadcast industry generates only $33.8 million in foreign markets while Canadians spend more than $500 million on foreign broadcasting.

With the Canadian cultural deficit expanding at a rapid pace, it is time for cultural protectionism in the form of ownership and access restrictions, outdated regulatory requirements, and heightened copyright protections that chiefly benefit foreign interests to give way to new approaches that leverage, rather than battle, emerging technologies.

Although the goals of promoting Canadian cultural products and services as articulated in statutes such as the Broadcasting and Telecommunications Act may remain unchanged, Canada must now consider whether the tools designed to achieve those goals — many of which were created in a far different technological environment — remain appropriate. It is to that question that this column will turn next week.

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