[Politech] Michael Geist on how Canada's "culture policy" can survive the Net [fs]

From: Declan McCullagh (declan@private)
Date: Mon Nov 15 2004 - 11:04:23 PST


-------- Original Message --------
Subject: 	Cultural policy in the Age of the Internet
Date: 	Mon, 15 Nov 2004 06:58:40 -0500
From: 	Michael Geist <mgeist@private>
To: 	Declan McCullagh <declan@private>
References: 	<418F28EF.5060204@private>



Declan,

Of possible interest to Politech -- for the past two weeks, I've run
columns on how (whether) national cultural policy can survive in the age
of the Internet.  Last week's column examined several recent Canadian
legal developments including CRTC hearings on satellite radio and VoIP,
a Quebec court decision on satellite television, and copyright reform,
arguing that the common thread through the cases how to adapt
decades-old Canadian policies to new technological environments. The
column argued that although the goals of promoting Canadian cultural
products and services may remain unchanged, Canada must now consider
whether the tools designed to achieve those goals - many of which were
created in a far different technological environment - remain
appropriate.  That column is online at
<http://geistnetandculturepolicy.notlong.com>.

This week's column picks up on that theme by arguing that the current
Canadian culture toolkit must be recast for the 21st century by adapting
it to emerging technologies and to legal frameworks that render obsolete
longstanding policy mechanisms. The column identifies three key
principles -- (1) acknowledgement that Canadian content requirements are
only marginally effective and Internet distribution provides a more
useful channel; (2) discarding the notion that cultural foreign
ownership restrictions provide effective protections; and (3) avoiding
unnecessary protectionist legislation that serves primarily to benefit
foreign interests and marketplace incumbents.  Column (posted below) is
online at <http://geistculturetoolkit.notlong.com>.

Best,

MG

*Internet-age aid for Canadian culture*

Michael Geist
Toronto Star

Given Canada's proximity to the United States, the protection of
Canadian culture has long been a highly charged, emotional issue.
Cultural protections were a staple of the Canada-U.S. Free Trade
Agreement as Canada insisted on excluding culture from the scope of the
agreement.

  As Canadian policy makers endeavoured to provide a "home team"
advantage to Canadian cultural institutions over the past 15 years,
disputes over access and ownership of booksellers, magazine publishers,
and television services became a common occurrence.

Notwithstanding the great energy devoted to Canadian cultural policy,
the effectiveness of protectionist cultural policies remains subject to
debate. The exclusion from the Canadian market of ESPN, the U.S. sports
cable giant, could arguably be said to have facilitated the emergence of
several Canadian sports cable networks including TSN, Rogers Sportsnet,
and The Score. Conversely, the exclusion of HBO, the popular U.S. movie
and original-programming network, has led only to the Movie Network,
whose most popular programming is ironically supplied by HBO, the very
service it was meant to replace.

Last week's column pointed to recent Statistics Canada data that paint a
disappointing picture of the economic state of Canadian culture. Canada
now sports a nearly $1 billion culture services deficit as hundreds of
millions of dollars flow south each year to pay for copyright and
trademark royalties.

  The deficit is particularly pronounced in the music and broadcasting
fields. Foreign sound recording artists generate five times more
royalties in Canada than do Canadian artists abroad, while Canadian
broadcasters generate a less than 1/10th of the revenue in foreign
markets that Canadians spend on foreign broadcasting.

Despite the discouraging situation, many of the fundamental goals of
Canadian cultural policy remain relevant today. Actively encouraging and
supporting Canadian culture should not be derided as little more than
government meddling into the cultural choices of Canadians. Rather, its
support reflects the economic reality that many Canadian cultural
sectors depend upon some form of public assistance since they are simply
unable to leverage the marketplace power of their competitors to the south.

While the culture goals may still resonate, Canadian culture policy
leaders such as Canadian Heritage Minister Liza Frulla and Industry
Canada Minister David Emerson must face the reality that many of the
tools that have formed the core of Canadian cultural policy do not work.
The Canadian culture toolkit must therefore be recast for the 21st
century by adapting it to emerging technologies and to legal frameworks
that render obsolete longstanding policy mechanisms.

I believe that three principles must guide a new Canadian cultural
approach. First, policy makers must acknowledge that Canadian content
requirements are only marginally effective in promoting Canadian
culture. In a music context, Canadian content requirements do result in
heavy radio airplay for Canadian sound recording artists, yet those
artists only account for 15 per cent of music sales in Canada and they
have achieved limited success outside the country.

The failure of content requirements is even more pronounced in the
television sector, where attempts to limit access to TV services in
order to support local alternatives typically meets with failure. For
example, the thriving gray market for satellite television on both sides
of the border - Canadians paying for U.S. services such as DirecTV and
U.S. residents (or Canadians living in the U.S.) paying for Canadian
services such as Bell ExpressVu - suggests that legal roadblocks rarely
deter consumers from watching what they want.

Rather than working to shut out competition, Canadian policy makers
should recognize the Internet's great potential as a distributor of
cultural content. Although extolling the transformative effect of the
Internet ended with the dot-com bust, in recent months the Internet has
in fact begun to match the hype of the late 1990s. Popular blogs now
enjoy readership that surpasses many major newspapers, while multimedia
creators, such as the California pair who created the JibJab animation
parody of George Bush and John Kerry that generated millions of
downloads and more buzz than most television shows, have discovered that
the Internet provides an unparalleled medium to find an audience.

Canadian cultural policy should actively encourage online distribution
by developing a funding strategy focused in that direction. The benefits
would be felt across the cultural spectrum with increased distribution
of Canadian books, music, and films. In fact, the Canadian public
broadcaster should be asked to serve as the role model, by using the Web
to make CBC content freely available to the taxpayers who paid for its
creation in the first place.

Second, policy makers should discard the notion that foreign ownership
restrictions provide Canadians with effective protections. The recent
challenge to the online entry of Amazon.ca is a case in point. While
opponents argued that Amazon.ca would harm the Canadian book market, it
has become clear that the corporate nationality of a bookseller has
little to do with the sale of Canadian books. Amazon's market entry has
instead produced a galvanizing effect on the Canadian online book
market, benefiting publishers, authors, and consumers alike.

  The same is true for the sale of music in Canada. Although Sam the
Record Man was once the quintessential Canadian music store, today the
leading retailers of music are U.S. (Wal-mart, Costco) and U.K. (HMV)
based. The challenges facing the sale of music in Canada - new price
pressures from these retail giants, declining catalog sales, and
cannibalization from the DVD market- have little to do with the
corporate nationality of the retailers themselves.

In fact, services such as Amazon.ca provide a remarkable opportunity to
promote Canadian culture. According to a recent/ Wired/ article, the
average book superstore such as Barnes & Noble stocks 130,000 titles. By
comparison, more than half of Amazon.com's sales are generated from
books ranked below its top 130,000 sellers. The story concludes "the
market for books that are not even sold in the average bookstore is
larger than the market for those that are."

  In a Canadian context, many Canadian books no doubt fall below the top
130,000 threshold and thus never even make it onto store shelves. The
Internet can change that, resulting in new exposure to Canadian culture
and the chance to reverse some of the culture deficit.

Third, Canada must avoid unnecessary protectionist legislation that
serves primarily to benefit foreign interests and marketplace
incumbents. In recent years, incumbents have used various empty threats
to encourage the enactment of self-serving legislation.

  The Canadian Recording Industry Association (CRIA) once said fee-based
online music services would not enter the Canadian market without
increased copyright protections, yet the services still came. Similarly,
broadcasters said, unsupported by any evidence, that without the
implementation of broadcast flag protections the Canadian market will
not support digital television and that U.S. services will not license
Canadian access to U.S. digital content.

  Rather than falling prey to those threats by implementing harmful
legislation, Canadian policy makers would do well to identify new
opportunities and to let Canadian creativity and innovation take over.

  The Canadian cultural marketplace is dominated by a handful of
companies in each sector - five companies control the majority of the
radio market, five companies dominate cable and satellite broadcasting,
five companies control most of the Canadian newspaper market, and five
foreign music labels are responsible for a majority of music sold in Canada.

  Canadian cultural policy can inject new competition into the
marketplace by rejecting legislative proposals whose primary purpose is
to protect the established players. In doing so, policy makers will
enable Canadian independent musicians, filmmakers, and authors to find
new avenues to market their creativity.

Earlier this month, Canadian musicians brought just that message to the
CRTC at hearings focused on the entry of satellite radio into the
Canadian market. Despite opposition from CRIA, which urged the
Commission to implement new protective technologies before opening the
market, the musicians embraced the potential of satellite radio and
asked the Commission to let their music be heard.
  From Amazon.ca to satellite radio, it is clear that something
transformative is happening as new technologies are challenging old
rules. Canada has an unprecedented opportunity to benefit from these
changes, but only if its cultural policy is transformed too.

-- 

**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
mgeist@private              http://www.michaelgeist.ca

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