Policy Responses to the User-Generated Content Boom

After a two-week hiatus, my weekly Law Bytes column is back (Toronto Star version, homepage version) with some reflections on Time Magazine's selection of "You" as the person of the year.  Starting from the premise that the choice may ultimately be viewed as the tipping point when the remarkable outbreak of Internet participation that encompasses millions of bloggers, music remixers, amateur video creators, citizen journalists, wikipedians, and Flickr photographers broke into the mainstream, I focus on how governments and policy makers might assess how they fit into the world of a participatory Internet and user-generated content.  I argue that it can do so by focusing on the three "C’s" – connectivity, content, and copyright.
An obvious starting point for connectivity is the role that federal, provincial, and municipal governments can play to ensure that all Canadians have access to the high-speed networks that are the price of admission to the participatory Internet.  Canada's global broadband ranking has slipped steadily in recent years, as Asian and European countries leapt ahead with faster, more widely distributed high-speed networks.  Moreover, last year's Telecommunications Policy Review Panel concluded that reliance solely on market forces would likely leave hundreds of thousands of Canadians without high-speed Internet access.

In response, Prime Minister Stephen Harper would do well to take the lead by implementing the broadband strategy that languished under the previous Liberal government.  Moreover, network neutrality legislation, which mandates that Internet service providers treat all content and applications in an equal manner, is desperately needed to ensure that user-generated content is not consigned to the slow lane of a two-tier Internet envisioned by some ISPs.

The federal government can also play an important role by improving Canadians' access to the content it controls or helps fund.  There are a surprising number of possibilities, each of which can be implemented at minimal cost and without new legislation:

  • the elimination of crown copyright, the archaic rules that grants government control over taxpayer-funded work
  • the introduction of open access requirements for federally-funded research to help leverage the hundreds of millions of dollars invested in federal granting institutions for health, science, and social science research
  • the establishment of new incentives in book publishing and television production funding programs to encourage open business models, and
  • the repositioning of CBC content by adopting open licenses that invite the public to remix the content to tell their own stories.

Copyright rules that balance appropriate protection with fair use are the third "C".  The Supreme Court of Canada has already embraced the balanced approach, warning in a prescient 2002 decision that "excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization."

Industry Minister Maxime Bernier and Canadian Heritage Minister Bev Oda can heed the court’s words by adding a "fair use" exception to the Copyright Act.  Already supported by telecommunications giants such as Telus and Rogers, as well as artist, education, and consumer groups, fair use would reduce the legal uncertainty faced by many Canadians as well as encourage new creativity and innovation.

Fair use will mean little, however, if content is locked behind the digital walls that have generated a free speech chill in many countries.  Canada can avoid a similar fate by rejecting legislation that promotes the use of digital rights management technologies.

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