Appeared in the Toronto Star on November 10, 2008 as Can Culture Policy Apply to New Media?
Canadian cultural policy has long relied on two levers to promote the development and market success of Canadian content. First, regulators require broadcasters and cable companies to allocate a portion of their revenues to help support the creation of new Canadian content. Second, that content is granted preferential treatment through minimum "Cancon" requirements for both television and radio broadcasting.
While these approaches may have worked for conventional broadcasting, the big question in the Canadian Radio-television and Telecommunications forthcoming hearings on new media is whether they can be applied to the Internet.
Canadian cultural groups, the biggest proponents (and beneficiaries) of this policy approach argue that similar mechanisms can be adapted to the Internet by requiring Internet service providers to hand over a portion of their subscriber revenues for the creation of new media content. ISPs unsurprisingly oppose the proposal, arguing that an Internet tax is inherently unfair since it forces all subscribers to fund content in which they may have little interest. Moreover, they note that such a scheme may also be illegal since it applies the Broadcasting Act to telecommunications activities.
The CRTC adopted a new Cancon approach for the introduction of satellite radio into the Canadian market and similar creative thinking is needed for the online environment.
One possibility would be to provide new media creators – whether independent film makers, digital photographers, musicians, podcasters, or bloggers – with the assurance of equal access to online audiences by mandating that Canadian ISPs treat all like content in an equivalent or neutral fashion.
In recent months, many Canadian ISPs have engaged in "network management practices" that degrades the bandwidth allocated to certain applications and content. While the ISPs argue that such practices are essential to ensure quality of service for the majority of their users, similar activities in the United States have drawn a strong rebuke from the Federal Communications Commission and a promise from President-Elect Barack Obama to address the issue during his first year in office.
This issue has been typically treated as telecom matter, yet there would be considerable benefits in assessing it through the lens of Canadian cultural policy. Granting preferential treatment for Canadian content may have made sense in a world of scarcity when there were limited channels and bandwidth, however, it no longer applies in a world of abundance where the Internet offers virtually unlimited choice.
Canadian creators therefore do not need guaranteed space since there is room on the Internet for everyone. Rather, they need guaranteed access – the assurance that their content can find an audience by being treated in an equal manner as any other video or cultural programming. As ISPs move toward tiered access that grants preferential treatment (such as faster speeds) to their own content or to premium content promoted by deep-pocketed interests, an equal opportunity approach to new media content would effectively bring Cancon into the Internet era by asking for nothing more than a fair shake.
This approach would also address the funding side of cultural policy. Many ISPs object to the equal treatment principle by maintaining that new media creators should pay for equal access and avoid using technologies such as BitTorrent that are viewed as transferring the cost of distribution from the creator to the network provider. From their perspective, if a new media creator (or a public broadcaster like the CBC) wishes to use an application to distribute content that is subject to decreased speeds, a requirement to grant unimpeded access should be regarded as a subsidy from the network provider to the content creator.
If so, such a subsidy could be seen as the Internet equivalent of cultural funding. Rather than adopting an ill-suited ISP tax, the costs associated with providing Canadian content with equal treatment could be treated as the financial contribution, thereby eliminating the legal concerns associated with an ISP tax and allowing the CRTC to extract support from network providers for the benefit of Canadian cultural production.
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 mgeist@uottawa.ca or online at www.michaelgeist.ca.
