With the increased availability of videoprogramming on the Internet, it wasonly a matter of time before the CanadianRadio-television and TelecommunicationsCommission (www.crtc.gc.ca/eng/welcome.htm) took an interest. Back in 1999, the CRTC exempted from regulation services that distribute broadcasting content over the Internet [Public Notice 1999-197 (New Media Exemption Order)]. In 2007, it extended the exemption to broadcasting services that are received through cell phones and other mobile devices [Broadcasting Public Notice 2007-13 (Mobile Broadcasting Exemption Order)].
However, now that high-speed Internet access has been adopted by most Canadians, new technologies and applications are available which offer high-quality broadcasting content. With Canadians spending more time accessing this type of content over the Internet and mobile devices, the CRTC recently launched a proceeding to gain a better understanding of broadcasting in the new media environment. Specifically, the commission wishes to use the proceeding to examine broadcasting in new media to determine whether the New Media Exemption Order and the Mobile Broadcasting Exemption Order continue to be appropriate or to what extent those orders need to be revised.
The proceeding follows the issuance by the commission on May 15 of Broadcasting Public Notice 2008-44 (including the release of Perspectives on Canadian Broadcasting in New Media, which provided a compilation of research and stakeholder views on broadcasting in new media) to narrow the range of issues that should be considered. Public comments collected during May and June were compiled into an e-consultation report (www.crtc.gc.ca/ eng/media/nmbcr.htm) that was published in September along with another report [TV or Not TV: Three Screens, One Regulation? (www.crtc.gc.ca/eng/media/noam2008.htm)] commissioned by the CRTC to provide background to the current proceeding.
The commission is now looking for public comment on a number of issues. The first has to do with the definition of broadcasting in new media. The commission has expressed a view that it is not concerned with user-generated content (eg, YouTube videos) but is trying to ascertain what type of broadcasting content it should pay attention to. For example, should it draw a distinction between professional versus non-professional content, or content aimed at commercial versus non-commercial use?
The commission is also expecting to review the significance of broadcasting in new media and its impact on the traditional broadcasting system, including whether incentives or regulatory measures should be considered for the creation and promotion of Canadian broadcasting content in new media.
For example, Canadian broadcasters may ask for bans on Internet videos coming from outside Canada by saying they own the distribution rights in Canada. I suspect the commission will not likely consider means to block foreign broadcasts being sent across the Internet for a number of reasons: (i) regulation of the Internet is difficult from a technical perspective, (ii) such concerns are more of a copyright issue, and (iii) a number of U.S. web sites which stream television programs already block access from users not located in the U.S. However, I suspect the commission may consider the imposition of a tax or fee on Internet connectivity (one of the suggestions contained in the TV or Not TV report), which would then be used to help fund the creation and promotion of Canadian content. Hopefully Canada’s Internet service providers and cell phone companies will quickly mobilize to oppose this approach.
Over the past couple of years, there has been growing public concern regarding network neutrality, meaning that the Internet service providers should not filter or give priority to certain content or Internet services over other types of services. While the commission does not wish to tackle the broader issue as part of this proceeding, it will examine access issues relevant to the achievement of the broadcasting policy objectives of the Broadcasting Act. Hopefully, this opening will be exploited to push the commission into examining the network neutrality issue generally.
Alan Gahtan is a Toronto-based technology lawyer. His web site is www.gahtan.com/alan.