The Canadian Struggle For Internet Control

Although The Front has been quiet for the last few years, diplomatic tensions in Canada’s War For Internet Control are flaring up, and we may be in for a full-scale battle. Cultural “leaders” are stoking the flames of fear, and interest groups are amassing PR troops. We hear much of the same rhetoric once shouted across yesterday’s battlefields, but this time, Internet Freedom may be sacrificed in the name of “protecting Canadian Content.”

On May 17, 1999, the CRTC stuck a near-fatal blow to the forces calling for harsh new rules and regulations for the Canadian Internet, by announcing that ‘it will not regulate new media services on the Internet’. It stated in a press release,

After conducting an in-depth review under the Broadcasting Act and the Telecommunications Act beginning last July, the CRTC has concluded that the new media on the Internet are achieving the goals of the Broadcasting Act and are vibrant, highly competitive and successful without regulation. The CRTC is concerned that any attempt to regulate Canadian new media might put the industry at a competitive disadvantage in the global marketplace.

“By not regulating, we hope to support the growth of new media services in Canada,” says Françoise Bertrand, CRTC Chairperson.

But those upset by this anarchical approach have healed their wounds and regrouped, as Internet Law Professor Michael Geist reported recently in his article “More Web Regulation Doesn’t Make Any Sense”

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.”

Unfortunately, the folks at SOCAN are leaving out a fundamental piece of the logic puzzle. The rules and regulations they have worked so hard to establish and defend only make sense when applied to centrally controlled media with limited distribution. Broadcast radio and television stations are limited by the number of frequencies on the spectrum, therefore it makes sense to reserve a percentage of this space for Canadian Content. But the Internet is not limited in the same way; the potential exposure for Canadian artists it is nearly unlimited and needs little regulation to ensure fair access. Canadian and foreign content providers are virtually on an equal playing field.

In this case, SOCAN’s argument smells a bit like George W. Bush’s doublethink that America must take citizen’s freedoms away to protect them. If they really wanted to protect Canadian artists, they would get behind the much more important fight for Net Neutrality, so that Rogers, Bell, and other corporations aren’t allowed to take control of information superhighway and put up tollbooths and roadblocks wherever they please.

Other groups, like the Friends of Canadian Broadcasting, have found themselves allied with the corporate greed-heads at the Canadian Association of Broadcasters (CAB), scrambling in fear of the proliferation of high-quality Internet video and digital delivery devices, which threatens the industry’s strangle-hold on the delivery of quality content.

The “Friends” demand that a percentage of revenue generated by MP3 players, satellite radio receivers, and interactive Web clients be “circulated into the system.” The CAB wants their piece of the pie protected, even if it means establishing barriers to Internet video streaming.

But, Geist tells us, as high-quality video becomes ever more present on the Net, the effect on Canadian Content will be precisely the opposite of what the CAB and others suggest.

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.

In the United States, copyright battles with similar themes are being fought in the name of “protecting artists”, like in Viacom’s lawsuit against Google’s YouTube video website. The case may never see US courts, but what would happen if there was a similar case here in Canada?

Jeremy de Beer, one of Geist’s fellow Law professors at the University of Ottawa, thinks that “sites that host peer-produced content would be on very shaky ground under Canadian law.” He writes on his blog,

So opinion is pretty much divided on YouTube’s prospects for a successful defense in the States. I’d say the situation is even more uncertain in Canada. I’ll even go out on a limb to predict (without opining or advising) that YouTube would lose a Canadian lawsuit like this.

The war for Internet control continues, and those with fear in their hearts and greed in their eyes are polishing up the big guns. Will Canadian citizens stand up for Net Freedom?

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