Dr Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-commerce Law. Dr Geist has written numerous academic articles and government reports on the Internet and law, and was a member of Canadaís National Task Force on Spam. He is an internationally syndicated columnist on technology law issues with his regular column appearing in the Toronto Star, Ottawa Citizen, and on the BBC. Dr Geist is the editor of In the Public Interest: The Future of Canadian Copyright Law, published in 2005 by Irwin Law, the editor of several monthly technology law publications, and the author of a popular blog on Internet and intellectual property law issues. Dr Geist serves on the Privacy Commissioner of Canadaís Expert Advisory Board and on the Canadian Digital Information Strategyís Review Panel. He has received numerous awards for his work, including Canarieís IWAY Public Leadership Award for his contribution to the development of the Internet in Canada and he was named one of Canadaís Top 40 under 40s in 2003. He obtained a Bachelor of Laws (LL.B.) degree from Osgoode Hall Law School in Toronto, Master of Laws (LL.M.) degrees from Cambridge University in the UK and Columbia Law School in New York, and a Doctorate in Law (J.S.D.) from Columbia Law School.
Canadaís regulatory agency, the CRTC, adopted a hands-off regulatory approach to new media. The growth of Internet-based media, however, has alarmed many that depend upon Canadaís subsidised local content production model. They claim that online streaming of free content, especially from the USA, will undermine their viability. Others believe that the new media will serve to stimulate Canadaís ability to compete in the world content market. It is increasingly clear that the new media threatens old business models, not Canadian content.
The Canadian Radio-Television and Telecommunications Commission, CRTC, has faced seemingly continuous criticism for years; however, in May 1999 it reached a decision that generated near-universal praise. The New Media decision, which adopted a hands-off regulatory approach to new media (the CRTCís press release overstated the ruling by headlining that the ëCRTC Wonít Regulate the Internetí), was widely regarded as the right decision at the right time. Since that ruling, a remarkable array of new media services - including podcasting, Internet streaming, and online video sites - have emerged outside of the traditional broadcast regulation model. Despite the success, recent submissions to the CRTC suggest that a growing number of stakeholders are increasingly wary of their unregulated counterparts and may be gearing up for a fresh look at Internet regulation. 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, ìCanadians have fewer Canadian programming choices available to them when they use new technologies than they do when they access conventional television and radio stations.î Based on that analysis, SOCAN argues for a reversal of the new media decision, stating, ìthere is no reason why those who use new technologies to broadcast content should not be subject to the Broadcasting Actís Canadian Content requirements - including Internet service providers, other New Media, Satellite Radio, and Mobile Television Broadcast Undertakingsî. 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 ìthe catalyst for the Commission to review its New Media Decision as early as possibleî. The Friends of Canadian Broadcasting go even further, maintaining, ìCanadian broadcasting policy should recognize new delivery systems such as mp3 players, satellite radio receivers, and interactive Web clients as part of the new Canadian broadcasting system. If the commission is unable or unwilling to regulate their content, it should be charged with ensuring that a percentage of the revenue they generate from the distribution of these services is circulated into the system.î While the CRTC is unlikely to join Viacom in seeking a slice of YouTubeís revenues, both the Friends of Canadian Broadcasting and the Canadian Conference of the Arts buck Industry Minister Maxime Bernierís emphasis on telecommunications deregulation, by pointing to that industry as a potential source of revenue for Canadian cultural funding. The broadcaster perspective surprisingly also envisions greater regulatory involvement. Although the Canadian Association of Broadcasters, CAB, does not call for the re-consideration of the new media decision - it actually seeks lighter regulation for all broadcasting media - it expresses concern about the implications of Internet video, particularly streaming video from US broadcasters, for the Canadian market. The CAB seeks to recast Canadian broadcast history by maintaining, ìfrom its very beginnings, a separate rights market has been a central objective of the Canadian broadcasting system, and an underpinning of Canadian broadcastersí ability to support Canadian contentî. According to the CAB, a core goal of Canadian broadcast policy has been the reliance on cheap and profitable US content in order to subsidize the creation of unprofitable Canadian content. With the growing popularity of Internet streaming, the CAB fears that US broadcasters will simply stream their programming into Canada and thereby diminish the value of those programmes on Canadian television networks. Indeed, all the major US networks already freely stream some of their prime time programming within the US and last month NBC and News Corp., the owner of the Fox Network, unveiled plans for a YouTube competitor. In response, the CAB seemingly wants the CRTC to erect barriers to Internet streaming, concluding, ìall reasonable public policy measures and instruments will be needed to maintain the integrity of a separate and distinct Canadian programme rights marketî. While the CAB is right that the Internet is erasing the distinction between geographic markets and that US broadcasters are likely to stream on a global basis in the near future, the likely impact on Canadian content is precisely opposite of what it suggests. 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 US 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. The Canadian Broadcasting Corporation, CBC, Canadaís public broadcaster, is facing similar pressures. For decades, the ëpublicí in public broadcaster has been linked to the public benefit of establishing a national venue where Canadians can tell their own stories. Moreover, supporters argue that the public particularly benefits from news reporting that features a unique Canadian perspective on global developments and at the same time provides comprehensive coverage of events back home. Today those public benefits are being called into question - quite understandably so since Canadian content regulations ensure that private broadcasters also carry Canadian programming and the public is able to access news from a wide range of Canadian sources located both offline and online. If the CBC can no longer claim to be a unique home to Canadian programming and perspectives, then perhaps its future lies in transforming itself from Canadaís public broadcaster to the broadcaster of the Canadian public, telling our stories and providing our news coverage from the bottom up, rather than the top down. The blossoming of citizen journalism, blogging, digital photo-sharing and user-generated content is reshaping the way the public is informed and entertained. Millions of Canadians are no longer merely consumers of the news and entertainment. Instead, they are active participants - one expert recently labelled them as ëthe people formerly known as the audienceí - who create, report, comment and analyze their own content that vies for the attention of a global audience. Canadian stories are being told in record numbers, yet they are not found on the CBC. The Internet is their home. The CBCís future may therefore lie in further blurring the difference between conventional broadcast and the Internet by establishing an integrated approach that brings more broadcast content to the Internet and more Internet content to broadcast. The CBC has developed an impressive online presence, yet the majority of the content is based on the traditional broadcast model that places a premium on control. The next-generation CBC would do well to partner with the public by loosening restrictions and encouraging the dissemination of Canadian content from a broader range of sources. It is increasingly clear that the blossoming of new media is a threat to old business models, not to Canadian content. Eight years after the CRTCís new media decision, it still stands as the right decision at the right time.