[IP] Cultural policy in the Age of the Internet
Begin forwarded message:
From: Michael Geist <mgeist@xxxxxxxxx>
Date: November 15, 2004 6:58:26 AM EST
To: dave@xxxxxxxxxx
Subject: Cultural policy in the Age of the Internet
Dave,
Of possible interest to IP -- 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@xxxxxxxxx http://www.michaelgeist.ca
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