Timothy M. Denton

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"Canada missed the boat on regulating the Internet 20 years ago"

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"Canada missed the boat on regulating the Internet 20 years ago", said Entertainment lawyer Stephen Stohn and, it should be noted, executive producer of Degrassi: The Next Generation and co-owner of Epitome Picture.  He told conference attendees that he told the CRTC back then “we really need to start thinking about regulating the Internet,” but that the Commission asked him to come back when he could show it was making an impact – and now that it is disrupting everything, it’s much too late. So reports CARTT.

Canada thereby missed the largest expansion of state authority over communications that has been conceived since the reign of Charles I. But, hey, let's go back there for Steven Stohn, shall we? Or should I say, "for Canadian culture"?

The biennial Communications Law Conference brings out the lawyers, civil servants and economists who deal in broadcasting and telecom regulation in Canada. It is a small group and it has not changed its thinking much in twenty years. Regulation good, lack of regulation bad. Internet equals lack of regulation of broadcasting, ergo Internet bad.

And what kind of regulation of the Internet do they seek? The legislation they have used: the Broadcasting Act. And what is the matter with this, you ask? In essence the Broadcasting Act is a scheme of making one's ability to speak through certain technical apparatus conditional on approval by the state. You must seek a licence from the government to speak across the Internet in full motion video. If full motion video, then it is "programming", and if "programming" then it is "broadcasting", and if "broadcasting" then to do it one requires approval of the federal government. Very severe penalties attach to speaking through "broadcasting" without a licence.

They believe they have the better of the legal arguments and they are invested with the confidence that comes from private money-making derived from public legal privileges. They are entitled by their legal privileges and you, peasants, had best line up for your Internet communications exemption orders from the CRTC.

When the science of radio propagation was such that the best way to prevent signal interference was to establish exclusive uses for certain users, it made sense to licence use of the spectrum. The assumption was that there would always be a few talking to a many. One voice, but many thousands of listeners.

The arguments for regulating the Internet under the Broadcasting Act are compelling if you stand to lose the economic value of your licence. For those whose rights communicate across the Internet by sending full-motion video would be lost, would be made subject to the prior permission of the state, the advantages are less clear.

The Internet is characterized by none of the features of broadcasting, as it was originally conceived.

Internet:

  • many to many - the number of IP addresses is huge and getting huger by many orders of magnitude (IPv4 migrating to IPv6), hence reception of content is not constrained to pre-authorized "channels" occupying radio spectrum.
  • you seek out what you want, by search engines, bookmarks or IP addresees;the signal is summoned to your device through a link established by your request.
  • it is bidirectional, not uni-directional, hence every person can be a publisher.This last feature that makes the Internet something that should be regulated by the normal rules of print publishing, not the 20th century idea of "broadcasting".

Lack of scarcity of any kind, and the possibility that every consumer can be an author, a generator of content, has no bearing for the devotees of the Broadcasting Act. Whatever its origins in "broadcasting" in its original sense, the Act has been made "technology neutral". What the technology-neutral argument fails to grasp is that the licencing inherent in the Act is predicated on a one-to-many paradigm, where the speakers are few and the listeners many. The technology may have changed, but the legal assumption that Canada can and should be protected by licencing have not. "What we need are more artificial scarcities!" say the privileged holders of licences.

“I don’t think it’s the role of the regulator to oversee the demise of the system,” said Stohn. That may be exactly what the CRTC should do. Preside over the disappearance of "broadcasting" into the huge cultural renaissance of scripted television now available on the Internet. The plight of the Toronto production community is not a problem that should be solved by shackling all Canadians to an obsolete scheme of licensing of speech, if conducted by video.

Let's look for solutions to the Canadian cultural production problem - of it exists, to the extent it exists - by more effective and less intrusive means. Regulating the Internet to save Canadian cultural production is like burning one's house to roast a pig.

 

 

 

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Timothy Denton is a lawyer by training who practices principally in telecommunications and Internet policy and domain name issues, with a strong concentration on explaining what the technology is and what it means.

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Guest Tuesday, 19 November 2019
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