Little New In New Media Hearings

The Canadian Radio-television and Telecommunications Commission new media hearings take a break over the next few days before concluding with a steady stream of appearances by Internet service providers, who are certain to argue next week against the imposition of a new ISP tax to fund the creation of Canadian new media.  My technology law column (Toronto Star version, homepage version) this week argues that the break is much needed, as the past two weeks have been huge disappointment with submissions short on specifics, long on rhetoric, and filled with inconsistencies.

While there is plenty of blame to go around, criticism must start with the CRTC, since it set the tone for the hearings with a series of conditions that make little sense.  The Commission tried to limit the hearings to "new media broadcasting," explicitly excluding issues such as net neutrality and the potential regulation of user generated and non-commercial content.

Yet each of these distinctions cause the entire new media hearing edifice to crumble. 

In the case of net neutrality, Chair Konrad von Finckenstein opened the hearings by stating that he could not see a connection between new media broadcasting and network management.

Comments and submissions from many groups see an obvious link, however.  For example, the Canadian Conference of the Arts recently noted that "one cannot argue simultaneously that Canadians' access to content is now unlimited, if the companies from which Canadians obtain access to that content, decide to and actually impose their own limits on users' access to, that content, for reasons that involve profit, as much as or even more than they involve ‘pure' traffic management to manage traffic congestion."

While the CRTC approach is designed to follow the Canadian legal model that separates broadcast from telecom, the reality is that the delivery of new media is almost exclusively a telecom matter.  The faulty distinctions point to the need for fundamental reform of Canadian law by converging broadcast and telecom policy.

The divisions between user generated and professional content similarly serve to cloud rather than clarify the situation since there is no generally accepted definition of either term. Millions of Canadians create content (user generated content), much of which could be treated as "commercial" if the presence of advertisements is treated as sufficient to meet the commercial threshold.

The new media disappointment extends beyond the CRTC, however.  The ISPs have yet to appear, but in media commentary some have implausibly argued that they cannot be expected to distinguish between forms of content since they maintain "dumb pipes." Yet these same companies filed hundreds of pages with the CRTC last week in the net neutrality proceeding arguing for the right to employ "smart pipes" that actively manage and monitor their Internet traffic using deep packet inspection technologies.

The who's who of Canadian cultural groups have not done themselves proud either.  While the subject matter may be new media, most groups have offered distinctly old media solutions, focusing on subsidy programs (the ISP tax) or licensing of new media activities without offering much in the way of data or specifics on how such programs would work.

The lack of specifics (other than the general sense that the monies should come from ISPs and be used for the creation and/or promotion of Canadian new media) may be attributable to the inappropriateness of both approaches.  

There are good reasons to support new media funding (which already receives millions from the Department of Canadian Heritage) but the House of Commons, not the CRTC, is the right place for this debate.

Licensing may have been the preferred solution for broadcast in times of scarcity, when limited bandwidth meant limited licenses with conditions for television and radio, but the Internet world is one of abundance, with no place for license-based models of yesteryear.

If blame is to go around, then the public commentary also deserves mention.  The hysterical reaction to the hearings with claims that it represents a massive threat to Canadian freedoms is an unnecessary overreaction to a policy process that may be broken, but hardly foreshadows the end of the Internet in Canada.  With little new or innovative in these new media hearings, they seem destined to end not with a bang but a whimper.


  1. ExSudburyGuy says:

    I hope you’re right Michael
    and the hearings do end with a whimper. I wonder though. We’re already victims of censorship of the Internet in Canada, with Canadian broadcasters preventing us from viewing U.S. network shows online because they bought the right to distribute the show in Canada, but won’t provide the content online. Likewise copyright rules prevent us from viewing sports events online, such as NHL hockey. My friends in the U.S. are amazed when I tell them about the Internet content that’s already blocked in Canada, and from what I’ve heard, the proponents of regulation at the CRTC hearings just want more of that. So I don’t think you’re quite accurate in describing the reaction that the hearings represent a massive threat to Canadian freedoms as hysterical. There’s a reason for that reaction.

  2. PolicyWonk says:

    Broad strokes, how about some details?
    Hi Micheal,

    Interesting article, but it’s unclear on a few points.

    Why is a a ‘subsidy’ via an ‘ISP tax’ an ‘old media solution’? You don’t seem to have any suggestions as to what a New Media solution would be.

    You claim the Heritage Funds New Media to the tune of millions but fail to mention that CTF only funds broadcaster-affiliated projects and Telefilm only funds interactive ones. There’s a whole lot more out there that neither fund is reaching – and neither Telefilm nor CTF are interested in scrounging through their rather empty purses to fund another program.

    And furthermore, why is ‘House of Commons, not the CRTC, the right place for this debate?’ Are you suggesting that Broadcasting Act (and Telecom Act) should be re-written?

    P.S. Some of the ‘cultural groups’ did offer specific details on how the funds should work, it just requires some digging through hours of transripts.

  3. Whacked out reactions
    A prime example of the hysteria can be found on the Macleans website, via a blog posting of Andrew Coyne titled “The CRTC isn’t just a nuisance now, it’s a real threat” –

    Coyne fears that this will all lead to “regulating the print media”, which is pretty whacked. Some of the comments are pretty whacked too!

  4. Frank Poule says:

    Libre Culture
    Lots of talk about the ISP’s tax but I’ve not seen anywhere someone to explain that if there’s a tax coming out (like the CD-R/DVD-R tax and others) it’s gonna be the public that will pay for the lucrative industry of media. In a time of crisis, I think it’s an aggressive way to transform their production. Everybody knows that they are loosing money and publicity and that the marketing is going to be more lucrative on the web so they gonna take us more money to produce what? Sitcom and shit like that! They don’t care about the public and if the CRTC go on with that tax, it has to be written that this tax gonna spread good information, arts and things like that, at least, and it as to fund independant projects!

  5. Denis McGrath says:

    Here’s my question from ExSudbury guy.
    Are you also upset by the fact that you can’t have immediate access to everything that is on the air in the UK the moment it airs there, and that there is region coding on DVDs that make them difficult to play on your DVD player?

    I’ve written about how I think it stinks that Canadian nets aren’t exploiting the online rights they buy, but the idea (not to pick on you, because it’s a common Canadian idea) that you or any Canadian has an inherent right to see whatever you want from — let’s be clear — a foreign country.

    It’s a weird sense of entitlement.

  6. Everything I make and put on the net is Canadian content…
    Where do I pickup my cheque for my share of the subsidy?

    I’m serious.