Greg Segal
(and Dov Wisebrod)
This submission is filed on behalf of Greg Segal and the Legal Group for the Internet in Canada (LoGIC). LoGIC exists to ensure that new laws and regulations have no detrimental effects on the free and interactive communication of information.
We submit that:
(i) The term "new media" is synonymous with the Internet, and the Internet is currently the sole form of relevant new media.
(ii) The rationales of the Broadcasting Act and Canadian content regulation do not and should not apply to the Internet. The conditions that led to the Act do not exist with respect to the Internet. Spectrum scarcity and cultural preservation have been eclipsed by technological advance.
(iii) There should not be more stringent legal and regulatory standards imposed on new media than on traditional media.
We oppose regulation of new media by the CRTC.
October 1, 1998
Mrs. Laura Talbot-Allan
Secretary General
Canadian Radio-Television and
Telecommunications Commission
1 Promenade du Portage
Central Building
Hull, Quebec
K1A 0N2
Dear Mrs. Talbot-Allan,
Re: Broadcasting Public Notice CRTC 1998-82 and Telecom Public
Notice CRTC 98-20:
The Regulation of New Media
Introduction
1. I am pleased to file the following comments, with respect to the above Public Notices, on behalf of myself and the Legal Group for the Internet in Canada (LoGIC - on the Web at "http://www.catalaw.com/logic/"). (1)
2. LoGIC is a conduit for the exchange of information and ideas about policies concerning emerging communication and information technologies. Our members are devoted to ensuring informed public, legislative, and regulatory responses to these technologies, which at present are manifest most profoundly in the Internet. LoGIC exists to ensure that new laws and regulations have no detrimental effects on the free and interactive communication of information.
3. There is no doubt that the Public Notices will garner much attention from interest groups, the communications industry, the broadcasting industry, the government, and the legal profession. I am sure that these groups will be well represented at the hearings. I too would like to take part in the hearings and represent a group that is devoted to the effect of the law on the Internet. I believe that an oral submission can clarify and explain the views provided here. As a member of LoGIC, I can expand these views and answer questions about the submissions made in this document.
4. Furthermore, I am a member of the age group that will be most effected by any decision the CRTC makes. As a 25 year old young professional, any new law or regulation dealing with New Media or the Internet will have a profound effect on me and my generation. I believe that youth should be represented at any hearings dealing with matters which will become increasingly important as we enter the new millennium.
5. Our submission will indirectly answer some of the questions posed in the Public Notice (2) by setting out the view that: (i) the term New Media is synonymous with the Internet and that the Internet is currently the sole form of relevant new media;(ii) the rationale of the Broadcasting Act and its regulation of Canadian content does not and should not apply to the Internet; and, (iii) there should not be more stringent standards imposed on new media than on traditional media.
6. We oppose the regulation of New Media by the CRTC and believe that the Internet should not be regulated.
I New Media
7. What is "new media"? We believe that an excellent working definition is set out by Canadian legal author Lesley Ellen Harris in her book entitled Digital Property: Currency of the 21st Century:
[N]ew media is any media that didn't exist in the eyes of the general public more than five years ago -- as well as tomorrow's media --so we're talking about CD-ROMs, DVDs (digital versatile discs, originally called digital video discs), Web sites, and e-zines (electronic magazines), as well as photographs, animation, text, computer games, films, and audio recordings accessed through the Internet.(3)
8. We submit that New Media includes: video on demand, satellite television, digital cable, HDTV, 3D video games, the Internet, virtual reality, and other advanced information and entertainment technologies. The CRTC already regulates video on demand, satellite television, and digital cable, and it has no jurisdiction over CD-ROMs, video games and other media in fixed forms of property. Therefore, the subject of these hearings is the Internet.
9. It is incomprehensible that Broadcast Public Notice CRTC 1998-82 and Telecom Public Notice CRTC 98-20 use the term "new media" when the term "Internet" would suffice. In what follows, it is taken for granted that the subject of these hearings is the Internet.
II Canadian Content
A The Broadcasting Act
10. If the CRTC is to regulate the Internet, it would do so within the ambit of the Broadcasting Act. As such, we submit that the CRTC must take into account the historical differences between traditional broadcasting and the Internet. In doing so, it should recognize that the justifications for regulating content in broadcasting do not apply to the Internet.
11. It has been noted that; "there are two dominant rationales supporting the regulation of broadcasting; the first technological, the second sociopolitical."(4) Technological refers to the frequencies that are transmitted through the spectrum, and sociopolitical refers to the preservation of Canadian culture. These two rationales evolved from what can be deemed as four major deficiencies in the Canadian radio broadcasting system prior to the Broadcasting Act,(5) of 1932. These deficiencies included:
(1) interference from foreign stations resulted in a shortage of usable frequencies; (2) many Canadians had no access to broadcasting service; (3) programs were of questionable quality; and, (4) American broadcast stations and programming dominated the Canadian broadcast environment.(6)
12. Indeed, these deficiencies provided the roots for the rationales underpinning television regulation. None of these deficiencies exist with respect to the Internet.
(a) Scarcity
13. In Canada, the frequencies by which radio and television are transmitted are public property. These frequencies are available to the radio and television stations (broadcasters) by license. The practice is justified because the air signals belong to all Canadians and that, because
the number of broadcast frequencies is limited, i.e. a scarce resource, the government, in the public interest, must allocate them through the licensing process, and is consequently thereafter justified in regulating their use so as to maximize the benefit to the public.(7)
14. Originally, the Very High Frequency ("VHF") band was the sole part of the spectrum that was allocated to television signals. Only a small fraction was allocated to broadcasting. Since "uncontrolled use of over-the-air spectrum would result in chaos, it was seen as the duty of the government to regulate the allocations of channels so as to maximize the public benefit."(8)
15. By its very nature, the granting of spectrum is a public issue, as historically recognized by the following statement issued by the 1957 Royal Commission on Broadcasting:
The grant of a new broadcasting license is the temporary and conditional alienation of an important and valuable public asset which, by its very nature cannot be shared by others. Such a grant is essentially a political act.(9)
16. The Broadcasting Act(10) recognizes
that frequency is public property, yet it never specifically denotes
spectrum scarcity as a justification for policy. Section 3(1)(b) of the
Act declares that the radio frequencies are public property:
(1) It is hereby declared as the broadcasting policy for Canada that
(b) the Canadian broadcasting system, operating primarily in the English and French languages and comprising public, private and community elements, makes use of radio frequencies that are public property.
(b) Cultural Preservation
17. Like spectrum scarcity, concern over the preservation of Canadian cultural identity began with the introduction of radio. One commentator noted that the "economics of broadcasting made production of original, 'quality' material difficult, or at best uninviting. An alarming proportion of the program material broadcast was imported from the United States."(11) With such an abundance of American programming flowing across the border and the attraction to Canadian private television stations of broadcasting American television shows, there was (and many believe still is) a need to regulate the television industry.
18. Regulation of the broadcast system in Canada is justified "as an instrument of national unity and preservation of Canadian culture."(12) The task of examining the history of Canadian content regulations is tedious and reflects the fact that Canadian television is considered an important aspect of Canadian cultural sovereignty. Indeed, the Aird report, the CBC, the BBG, the Broadcasting Act, the CRTC, the Fowler Commission, and The Caplan/Sauvageau Task Force all contribute to and reinforce the notion that the preservation of culture is the primary rationale behind government policy.
19. The Broadcasting Act itself ideally portrays the strength of cultural preservation as a rationale of content regulation. Section 3(d) of the Act sets out the objectives of broadcasting in Canada:
(d) the Canadian broadcasting system should(i) serve to safeguard, enrich and strengthen the cultural, political, social and economic fabric of Canada,(ii) encourage the development of Canadian expression by providing a wide range of programming that reflects Canadian opinions, ideas, values and artistic creativity, by displaying Canadian talent in entertainment programming and by offering information and analysis concerning Canada and other countries from a Canadian point of view.
B Our Submissions
20. We submit that the rationales for regulating Canadian broadcasting, as set out above, do not justify regulating the Internet.
(a) Scarcity
21. The spectrum scarcity rationale for broadcasting regulation is most
vulnerable to new technologies. According to one observer,
[s]pectrum scarcity has probably been the rationale most often invoked in support of the regulation of broadcasting. Ironically, it is the one rationale most directly affected by new developments in technology.(13)
22. Traditional broadcasters require licenses because spectrum is scarce. Spectrum scarcity is not an issue on the Internet. Anyone can add content by, for instance, setting up a web server or creating a web site. Many companies even offer web site hosting and other content creation services for free. As a result, there are millions of web sites on millions of web servers worldwide. There is no need to regulate a medium that provides such an abundance of "spectrum." No licenses should be required for any activity solely by virtue of its relation to the Internet.
23. Comparatively, television spectrum is still extremely scarce, as exemplified by the delay in the most recent round of approving specialty stations. Furthermore, the fact that some licensed specialty stations have yet to air, the delay in the launch of digital cable, and the lack of a Canadian DTH broadcasting satellite, all reinforce the differences between traditional broadcasting and the Internet. Forcing any Internet entity to obtain any sort of license by comparison to traditional broadcasting is unjustifiable.
(b) Cultural Preservation
Concept
24. The concept of cultural preservation has been superceded by technology. Arthur C. Clarke, who invented the communications satellite, is often quoted as saying, "In the struggle for information, technology, not politics will be the ultimate decider." This is no science fiction fantasy.
25. Borders are transparent to the transmission of information. If a telephone cable or, increasingly, a satellite signal can cross a border, regulatory protection of culture on both sides is severely undermined. The protection is fundamentally contingent on the existence of a reasonably identifiable and bounded physical area within which to regulate. Yet, location, position, and jurisdiction are all irrelevant in the new Internet paradigm because, as William Gibson wrote a decade ago, "There's no there, there. They taught that to children, explaining cyberspace."(14) It's time to recognize this new reality before any more time, money and talent is wasted on a Sisyphean task.
Contribution
26. The Public Notice posed the following questions: Should on-line distributors of new media in Canada be required to contribute to the production of Canadian new media products and services? If so, what impact would such a requirement have on the development of the industry generally, and on the deployment of infrastructure?
27. Canada aspires to universal access to new media. If achieved, every Canadian will be able to connect to the Internet. Anyone connected to the Internet is instantly and easily capable of being an "on-line distributor of new media," in all but the most narrow of possible definitions. Therefore, only an emphatic and uncompromising negative answer to the first question is reasonable.
28. Any other answer would amount to a head tax on all Canadians payable to all Canadians. In answer to the second question, the adverse repercussions would be severe and absurd.
29. The protection of Canadian culture has recently come under fire by the World Trade Organization. Numerous Canadian policies relating to magazine publications have been found to oppose international agreements in trade. Would the international community view any Internet culture protection schemes as anything other than unfair subsidies? We think not.
III One Standard for all Media
30. The Public Notice posed the following question: Are there forms of Canadian new media content for which some degree of regulation would be appropriate with respect, for example, to privacy issues, offensive content (e.g. obscenity, hate propaganda, and discriminatory material), violence and gender portrayal, and advertising to children?
31. We submit that for every issue save privacy, sufficient law exists and applies. There should be no more stringent standards imposed on new media than on traditional media.
32. In particular, with respect to offensive content, the same law that is currently applied to traditional media should apply to new media. Namely, the Criminal Code. It protects Canadians from, among other things, child pornography (s. 163.1), defamatory libel (s. 300), hate propaganda (s. 319), and the conveyance of false information with the intent to harm (s. 372).
33. With respect to privacy, we submit that the legislative and regulatory regime in most Canadian jurisdictions lags behind privacy protection in other jurisdictions, particularly the province of Quebec and European nations. However, the existing regime is insufficient across the board. It should be improved entirely or not at all. There should be no more stringent privacy standards imposed on new media than on any other Canadian enterprise.
Conclusion
34. For these reasons, we submit that the Internet should not be regulated by the CRTC.
35. An executive summary is attached hereto.
Yours very truly,
[Signed]
Greg Segal
Member, Legal Group for the Internet in Canada
(With contributions from Dov Wisebrod, co-founder and chair, Legal Group
for the Internet in Canada.)
1. This submission is in no way affiliated with my employer.
2. Questions include the following:
-What kinds of new media services are either currently available or can reasonably be expected to emerge in the future?
-Would some form of broad enabling framework serve to stimulate the economic and cultural development of a new media industry?
-Are there forms of Canadian new media content for which some degree of regulation would be appropriate with respect, for example, to privacy issues, offensive content (e.g. obscenity, hate propaganda, and discriminatory material), violence and gender portrayal, and advertising to children?
-Should on-line distributors of new media in Canada be required to contribute to the production of Canadian new media products and services? If so, what impact would such a requirement have on the development of the industry generally, and on the deployment of infrastructure?
-If access by producers of Canadian new media to distribution channels and content aggregators is an existing or potential problem that needs to be addressed, how should this be accomplished?
-What role, if any, should the Commission play in encouraging or requiring the provision of support for the development and production of Canadian new media?
3. L.E. Harris, Digital Property: Currency of the 21st Century (Toronto: McGraw Hill Ryerson) 1998 at 9-10.
4. J.G. Hone, "Ethnic Broadcasting in Canada - A Re-Evaluation", LL.M. Thesis, in H. Janisch, Communications Law I: Teaching Materials (University of Toronto, 1991) at 398.
5. The Canadian Radio Broadcasting Act, 1932, S.C. 1932, c. 51.
6. T.L. McPhail and P. Mercer, Deregulating Trends in International Broadcasting: A Canadian Perspective, (Federal Department of Communications, 1988) at 1.3.
7. J.G. Hone, supra note 4 at 399
8. D. Ellis, Split Screen: Home Entertainment and the New Technologies, (Toronto: Friends of Canadian Broadcasting, 1992) at 149.
9. R. Babe, Canadian Television Broadcasting Structure, Performance and Regulation (Economic Council of Canada, 1979) at 31.
11. M. Raboy, Missed Opportunities, (Montreal: McGill-Queen's University Press, 1990) at 22.
12. J. G. Hone, supra note 4 at 415.
13. D. Ellis, supra note 8at 150. Emphasis added.
14. W. Gibson, Mona Lisa Overdrive (New York: Bantam, 1988) at 48. Emphasis original.