Timothy M. Denton

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Talking C-11: is a regulated Internet still the Internet?

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Is a regulated Internet still the Internet, or is it a giant cable system? The following is my presentation to the Senate Committee studying the On-Line Streajming Act.

1.    We oppose C-11 because it embodies a fundamentally illiberal idea of communications; because it constitutes a vast overreach of governmental authority; and because it threatens the engine of innovation and economic growth which is the Internet.

 

 

2.    What we object to is the nearly boundless extension of governmental regulatory authority over communications. The bill excludes content that is predominantly alpha-numeric. Otherwise, and with only a few exceptions, it captures virtually all online audio and video.  

What we recommend

 

3.    In the Annex to our formal Submission, we have proposed changes intended to limit the harm that C-11 poses.  I would highlight in particular our recommendations to:

 

4.    One: Exclude from the Act, and therefore from any regulation or obligation to contribute to Canadian content production, any online service that earns less than $150 million in Canada annually.

5.    Two: Exclude from the Act all user generated content.  This does not exclude social media platforms that stream user generated content and whose revenues exceed the $150 million cap, which would be subject to the Act.

 

6.    Three: Amend the policy objectives in Section 3 to ensure that CRTC regulation respects user choice, and recognizes that competition and market forces are contributing to achieving the objectives of the Act.  Bill C-11 implicitly assumes that in a large measure the burden of Canadian program production is to be taken up by foreign, read American, streamers competing with Canadian broadcasters. Yet nowhere in this Bill do we read of competition and consumer choice.

 

 

7.    Four: Remove the amendments in clauses 7 and 8 of the bill so as to reinstate the current Act’s limitations, and Parliamentary oversight safeguards, on the authority of the Governor in Council to issue policy directions to the CRTC. 

 

Bill C-11 is Fundamentally Flawed

 

8.    C-11 vastly exceeds the government’s stated objectives, and then leaves entirely to the CRTC the ability to determine its own mandate and the extent of its intervention in the online economy and in Canadians’ ability to access the content of our choice.  In our view, C-11 invites fears of undue and harmful intervention.

9.    We believe that it is entirely possible to obtain a reasonable contribution to CanCon from global streamers without bill C-11’s massive intervention in the digital economy and in Canadians’ freedom to access online content of our choice.

 

 

Internet Streaming is Not Broadcasting

 

10.         Let us look at two basic features of broadcasting. The first, which C-11 retains, is that you broadcast by permission of the state. Broadcasting is a licensed activity, and the CRTC is the licencing authority. The second was a set of characteristics, business and technical, that limited who and what broadcasters were. Those characteristics were largely based on the scarcity of radio waves. C11 eliminates those characteristics nearly completely.

 

11.         The assumption that justified broadcasting regulation was that a very few speakers would have a captive audience of many tens of thousands of listeners, and later of viewers. The direction of traffic was one way. The audience had highly limited choices.

12.         In exchange for highly detailed regulation, traditional broadcasters have benefited from a host of measures that have created a walled-garden and sought to protect broadcasters from competition so that they could fulfil their CanCon and other obligations.

 

 

13.         C-11 declares all audio- and audio-visual content on the Internet to be broadcasting. It is a kind of reverse takeover of the Internet. The tiny Canadian broadcasting system can take on the world of the Internet by the mere trick of redefining “broadcasting”. C-11 is that bold, and that absurd.

 

 

Impact of C-11 on the Internet

 

14.         C-11 is about protecting the economic interests of an obsolescent niche of Canada’s music and video industries. It is not about bringing “broadcasting” regulation up to date. It is not even about “streaming”.  It is about controlling content on the Internet, the persons who transmit content on the Internet, and what reaches the persons who access Internet content.

15.Instead of introducing an actual Online Streaming Act – one that would have considered the unique nature of Internet-delivered content and the functioning of the markets for that content – C-11 tries to stuff the most vibrant and adaptive marriage of technology and culture within the stultifying embrace of the regulated broadcasting system. Bill C-11 seeks to prolong and reinforce the supply-side dynamics of broadcasting regulation. C-11 fails to affirm or even acknowledge the primacy of the audience and its right to choose the programming that suits it. C-11 embodies a set of bad ideas that ought to be rejected.

 

16.In the time available we have had to concentrate our comments on the essentials. Our formal submission covers other issues that are also significant, which you will have received earlier. We thank you for your time and attention and look forward to your questions.

 

 

 PS: Thanks to Philip palmer and Len St Aubain for editorial help

 

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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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