My weekly Law Bytes column (Toronto Star version, homepage version) focuses on the growing push from the Canadian broadcasting community to revisit the CRTC's 1999 New Media decision, in which Canada's broadcasting regulator took a hands-off approach to the Internet. The support for greater regulation is often couched in Canadian content terms, but I argue that the current changes have the potential to dramatically alter Canadian content production from one mandated by government regulation to one mandated by market survival.
The issue began to percolate last June, when Canadian Heritage Minister Bev Oda asked the CRTC to conduct a six-month consultation on the effects of changing technology on the radio and television industries. The CRTC report, which was quietly released in mid-December, went almost unnoticed, yet submissions from broadcasters, copyright collectives, and labour unions all point to an increased regulatory role for the CRTC.
The underlying theme of many stakeholder submissions is that unregulated new media represents a threat to the current regulated Canadian content model.
For example, SOCAN, a copyright collective, implausibly argues that "Canadians have fewer Canadian programming choices available to them when they use new technologies than they do when they access conventional television and radio stations."
SOCAN is by no means alone in promoting more Internet regulation in the name of Canadian content. ACTRA, which represents over 21,000 performers, argues that the CRTC should be "the catalyst for the Commission to review its New Media Decision as early as possible."
The Friends of Canadian Broadcasting go even further, maintaining that "Canadian broadcasting policy should recognize new delivery systems such as MP3 players, satellite radio receivers, and interactive Web clients as part of the new Canadian broadcasting system. If the Commission is unable or unwilling to regulate their content, it should be charged with ensuring that a percentage of the revenue they generate from the distribution of these services is circulated into the system."
The broadcaster perspective surprisingly also envisions greater regulatory involvement. Although the Canadian Association of Broadcasters does not call for the re-consideration of the new media decision (it actually seeks lighter regulation for all broadcasting media), it expresses concern about the implications of Internet video – particularly streaming video from U.S. broadcasters – for the Canadian market.
The CAB seeks to recast Canadian broadcast history by maintaining that "from its very beginnings, a separate rights market has been a central objective of the Canadian broadcasting system, and an underpinning of Canadian broadcasters' ability to support Canadian content." According to the CAB, a core goal of Canadian broadcast policy has been the reliance on cheap and profitable U.S. content in order to subsidize the creation of unprofitable Canadian content.
With the growing popularity of Internet streaming, the CAB fears that U.S. broadcasters will simply stream their programming into Canada and thereby diminish the value of those programs on Canadian television networks. In response, the CAB seemingly wants the CRTC to erect barriers to Internet streaming, concluding that "all reasonable public policy measures and instruments will be needed to maintain the integrity of a separate and distinct Canadian program rights market."
While the CAB is right that the Internet is erasing the distinction between geographic markets and that U.S. broadcasters are likely to stream on a global basis in the near future, the likely impact on Canadian content is precisely opposite of what it suggests.
Rather than reducing the production of Canadian content, Internet streaming and new media create incentives for more Canadian productions since profitability in the emerging environment will depend upon original content that can be distributed across all platforms, old and new. If Canadian broadcasters are unable to rely on cheap U.S. programming, they will be forced to compete by investing in their own original content.