The Canadian Radio-television and Telecommunications Commission has faced seemingly continuous criticism for years, however in May 1999 it released a decision that generated near-universal praise. The New Media decision, which adopted a hands-off regulatory approach to new media (the CRTC's press release overstated the ruling by headlining that the "CRTC Won't Regulate the Internet"), was widely regarded as the right decision at the right time.
Since that ruling, a remarkable array of new media services – including podcasting, Internet streaming, and online video sites – have emerged outside of the traditional broadcast regulation model. Despite the success, recent submissions to the CRTC suggest that a growing number of stakeholders are increasingly wary of their unregulated counterparts and may be gearing up for a fresh look at Internet regulation.
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."
Based on that analysis, SOCAN argues for a reversal of the new media decision, stating that "there is no reason why those who use new technologies to broadcast content should not be subject to the Broadcasting Act's Canadian Content requirements – including Internet service providers, other New Media, Satellite Radio, and Mobile Television Broadcast Undertakings."
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."
While the CRTC is unlikely to join Viacom in seeking a slice of YouTube's revenues, both the Friends of Canadian Broadcasting and the Canadian Conference of the Arts buck Industry Minister Maxime Bernier's emphasis on telecommunications deregulation by pointing to that industry as a potential source of revenue for Canadian cultural funding.
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. Indeed, all the major U.S. networks already freely stream some of their prime time programming within the U.S. and last month NBC and News Corp., the owner of the Fox Network, unveiled plans for a YouTube competitor.
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. This will dramatically alter Canadian content production from one mandated by government regulation to one mandated by market survival.
It is increasingly clear that the blossoming of new media is a threat to old business models, not to Canadian content. Eight years after the CRTC's new media decision, it still stands as the right decision at the right time.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at email@example.com or online at www.michaelgeist.ca.