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Digital Cancon Fight Could End Up as New Whine in Old Bottles

Appeared in the Toronto Star on May 2, 2016 as Digital Cancon Fight Could End Up as New Whine in Old Bottles

Canadian Heritage Minister Mélanie Joly surprised culture and Internet watchers last week by announcing plans for a comprehensive review of Canadian content policies in a digital world. Joly says everything is on the table including broadcasting regulation, Cancon funding mechanisms, copyright law, the role of the CBC, and the future of the Canadian Radio-television and Telecommunications Commission (CRTC).

While there is little doubt that the current framework was established for a different era, rules that have sheltered the industry from foreign competition and transferred hundreds of millions of dollars from consumers to creator groups will not disappear without a fight. Indeed, the most common refrain from the Canadian cultural community is likely to be that the existing rules should be extended to the Internet.

Joly’s consultation may be new, but questions about adapting Canadian content regulations to the digital environment have been around for some time. For example, the primary impetus behind the CRTC’s much-maligned TalkTV consultation was the dramatic shift in the television landscape due to the Internet. With rapid growth of unregulated Internet-based alternatives such as Netflix drawing millions of Canadian subscribers and offering new venues for sales of Canadian content, the Commission was faced with difficult policy choices on how to adapt old rules into the digital reality.

It implored creator groups to focus on leveraging the Internet by competing on a global stage, while urging broadcasters to adopt consumer-friendly packages given the emergence of greater consumer choice that ultimately seems likely to lead to a mass exodus from the regulated system.

The reaction from the Canadian culture establishment?

Most paid lip service to competing for new audiences, focusing instead on demands for Netflix taxes, CanCon requirements for digital services, retention of longstanding protectionist rules such as simultaneous substitution, and the continuation of expensive consumer television packages to preserve existing channels. There is little reason to believe those groups will offer a different vision of Canadian content regulation this time round.

In fact, they will likely expect even more from this consultation. In addition to regulations over Internet-based video services, there will be calls to implement an Internet service provider tax to fund the creation of CanCon. An ISP tax (or levy) was rejected by the Supreme Court of Canada in 2012, but rewriting the Broadcasting Act and the Telecommunications Act will offer the possibility of new consumer fees to offset declining contributions from the broadcasting sector. Levies on Internet access would run counter to other policy goals, however, notably ensuring universal, affordable broadband for all Canadians since increases to the cost of Internet service would likely widen the digital divide.

The competing objectives highlight another complication of the consultation, namely the overlap between government departments. Canadian Heritage will lead on cultural issues, but there are significant implications for others such as Minister of Innovation, Science and Economic Development Navdeep Bains (responsible for telecommunications and copyright) and International Trade Minister Chrystia Freeland (the Trans Pacific Partnership limits Canadian cultural policies).

Policy overlap is particularly pronounced on copyright, with some groups eyeing the CanCon consultation as the chance to demand further changes to the Copyright Act, despite the fact that a review of that law is already scheduled for 2017. Moreover, copyright was just modernized in 2012, with new rules designed to foster digital user generated content, promote online distribution, and tackle websites that enable infringement. If anything, Canadian copyright law is still more restrictive than its U.S. counterpart, where fair use laws offer more flexibility to creators of all stripes than Canada’s fair dealing provisions.

The modernization of CanCon regulation offers the opportunity to rethink longstanding policies by prioritizing global markets, consumer choice, competition, and the benefits of an expanded creative class that includes both commercial and non-commercial participants. Next week’s column will examine some of the policy possibilities, but for now, Canadians should be wary of a consultation process that could quickly devolve into a rush to regulate the Internet with claims that cultural policies in the digital world is little more than old wine in new bottles.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at or online at

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