Reconciling Cancon Requirements in the Age of the Internet

My regular Law Bytes column (homepage version, Toronto Star version) provides some further commentary on last week's CRTC pay radio decision. I argue that the Commission made the best of a bad hand and delivered a policy approach that prioritizes Canadian artists by adapting Canadian content requirements to emerging new technologies.

Four points stand out in my mind from the decision.

First, while the some groups claim the CRTC did not do enough to protect Canadian content, it is important to recognize that the CRTC did not find itself in a strong regulatory position on the pay radio issue. The headlines may have trumpeted the arrival of satellite radio to Canada, yet the reality is that it already exists here.

Second, the CRTC thankfully avoided the temptation to intervene in the competitive marketplace by trying to pick winners. Despite the clamour of quick IPO's, pay radio is by no means a guaranteed success.

Third, the Commission also wisely decided to promote Canadian content by encouraging its availability, rather than by locking it down. Canadian musical artists lent their support to this approach last fall, emphasizing the value of new distribution channels such as satellite radio.

The CRTC could have set limitations on access by adopting the Canadian Recording Industry Association's recommendation that mandatory anti-copying technology accompany the introduction of the pay radio services. CRIA argued that "latent in this technology are very significant threats to creators of music." By siding with the artists, the CRTC has paved the way for greater availability and funding for new Canadian music.

Fourth, the most important aspect of the decision is that the Commission set an important precedent on Canadian content requirements that promises to extend its viability in an increasingly complex communications environment.

While critics call for the elimination of Canadian content requirements, the reality is that a completely open market in culture invariably leads to the cheapest form of culture, which is typically U.S. in origin given its efficiencies of scale. By mandating 326 hours each day of Canadian content with a prioritization of new music and artists not found on the music charts, the CRTC has followed the path found in many other developed countries whose cultural policy is designed to provide their own artists with the airplay that is a pre-requisite for success.

In fact, much to the chagrin of Canadian content requirement critics, the issue is bound to arise in a host of other emerging media. For example, webcasting from large providers has experienced dramatic growth in recent years and may soon face questions about Canadian content requirements. Similarly, music download services, which are fast becoming the industry's preferred retail delivery channel, may also encounter pressure to meet Canadian content minimums.

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