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Fate of Canada's Net Content Coming into Focus

Two visions for Internet weighed by CRTC.

By Michael Geist 16 Dec 2008 | TheTyee.ca

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.

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The Canadian Radio-television and Telecommunications Commission new media hearings are not scheduled to begin until mid-February, yet they have already attracted more than their fair share of controversy. With talk of imposing a tax on Internet service providers to fund Canadian content or the imposition new licensing and Canadian content requirements, the outcome could dramatically reshape the Internet in Canada.

The deadline for formal submissions closed 10 days ago, leaving commission officials to spend the holidays wading through thousands of pages from broadcasters, telecommunications companies, creator groups, and a handful of individual Canadians who took the time to voice their views.

Visions vie for Canadian Net content

At the heart of the submissions are two competing visions of the Internet and new media in Canada. One side -- supported by telecom companies, broadcasters, and several industry groups -- maintains that the CRTC's 1999 decision to take a hands-off approach to the Internet has largely worked. They argue that new media and the Internet have flourished and that the commission should heed the adage that "if ain't broke, don't fix it."

These groups have supplemented their policy arguments with legal ones, filing multiple legal opinions, including one from former Supreme Court of Canada Justice Frank Iacobucci, that cast doubt on the CRTC's legal power to impose certain forms of new Internet regulation.

The counterargument comes from creator groups such as ACTRA, SOCAN, the Canadian Film and Television Production Association, and the Writers Guild of Canada, who believe that the 1999 decision was a mistake and that the CRTC should take this opportunity to reverse it.

Should the commission agree that the hands-off-the-Internet approach should be revisited, the major question then turns to what should be done. There are two approaches on the table -- one that focuses on creating an Internet broadcasting framework that matches conventional broadcasting regulation and the second that emphasizes promoting Canadian content by ensuring equal access to it.

Time for new regulations?

The first approach starts with rescinding the 1999 new media exception and introducing new regulatory requirements for the broadcast of new media on the Internet. This would effectively treat Internet-based broadcasting in the same manner as conventional broadcasting.

Those promoting a regulatory approach propose a range of measures. For example, SOCAN calls for the introduction of a minimum of 51 per cent Canadian content requirements for Canadian commercial websites. ACTRA argues that the commission should license new media undertakings, arguing that "the Commission should also require that those who are making programs available from Canada, through the Internet or to mobile receiving devices, for viewing at a time and place chosen by the user be licensed." In fact, ACTRA maintains that the definition of Internet broadcasting should be expansively interpreted to even include user-generated content, which could turn thousands of Canadians into regulated broadcasters.

A handful of broadcasters also support new regulation. The CBC maintains that "new media content aggregators" should be regulated, while Sirius Satellite Radio, itself a beneficiary of modified Canadian content rules, now argues that Internet radio delivered to mobile devices should be regulated.

In addition to regulatory and licensing requirements, many (though not all) of these same groups support the imposition of a new tax on Internet service providers to be used to fund the creation of Canadian new media. ACTRA assumes the lead role in this regard, seeking three per cent of ISP broadband revenues and 0.6 per cent of wireless service provider revenues. Telecommunications companies, business groups, and the Competition Bureau unsurprisingly oppose the ISP tax plan.

The case for net neutrality

Alternatively, many of the submissions provide the commission with a different approach that avoids licensing, new taxes, and new media regulation. Instead, these submissions point to the need for net neutrality -- the assurance that Canadian new media can be accessed on an equal footing with foreign and conventional content. Supporters of a net neutrality approach to new media include ACTRA, the Canadian Independent Record Production Association, the Canadian Music Publishers Association, the Canadian Conference of the Arts, Maple Leafs Sports and Entertainment, Score Media, the Documentary Organization of Canada, and the Canadian Association of Internet Providers.

The new media hearings are still a couple of months away, yet the likely debate has now come into sharper focus with Internet regulation, an ISP tax, and net neutrality emerging as the three key battleground issues.

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