Professor Michael Geist (Chair, Research in Internet and E-Commerce Law, University of Ottawa):
Great. Thank you, Chair.
Good morning. As you heard, my name's Michael Geist. I'm a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. I'm also a columnist on law and technology issues for the Toronto Star and the Ottawa Citizen. I was a member of the national task force on spam; I was on the board of directors for many years for the Canadian Internet Registration Authority, CIRA, which governs the dot-ca domain name; and I sit on the Privacy Commissioner of Canada's expert advisory board, but I appear before this committee today in a personal capacity and represent only my own views.
The committee posed several questions, but I think two capture the essence of the issue. First, how have developments in digital media changed the new media environment? Second, what can government do? I'd like to try to take a stab at least at opening some discussion on both.
First, how have things changed? As we move from a world that was largely characterized as one of scarcity to one of abundance, I think we're seeing Canadians play an important role. Record labels like Nettwerk Records in British Columbia or Arts&Crafts in Toronto are at the forefront of using the Internet to promote their artists and benefit from its great potential. Notwithstanding some doom and gloom, the Canadian digital music market has grown faster than the U.S. market each of the past four years. In fact, we rank seventh worldwide for digital music sales, which is virtually identical to our sixth-place ranking for offline music sales.
The Canadian entertainment software industry is growing at a breathtaking pace, with regular investments in Quebec, Ontario, and British Columbia. It's not legal frameworks that are dictating the investments but rather Canadian talent, creativity, and marketplace success. Smaller players are finding success in new markets as well, like iPhone and Facebook applications. The Canadian television network The Score is a North American leader for its online application. Companies like Polar Mobile now supply applications for the iPhone to a global market.
Canadians also play a key role in new book models. For example, Wikitravel is one of the Internet's most acclaimed travel sites. It was launched in 2003 by two Montreal residents, Evan Prodromou and Michele Ann Jenkins. They used the same Wiki collaborative technology that's proven so successful for Wikipedia, inviting travellers to post their comments and experiences about places around the world in an effort to create a community-generated travel guide. The site has accumulated more than 30,000 travel guides in 18 different languages, with 10,000 editorial contributions each week. Content is licensed under a creative commons licence that allows the public to use it, copy it, edit it, and freely work with it. Building on that success, they've established Wikitravel Press. It represents a new approach to the travel book publishing business based on Internet collaborative tools and print-on-demand technologies.
Now, the compelling stories aren't limited just to new entrants. Consider the National Film Board of Canada. I don't expect the NFB to replace YouTube in the minds of many when it comes to Internet video, but a series of innovations has highlighted the benefits of open distribution and the potential for Canadian content to reach a global audience. Last year, just months before the NFB celebrated its 70th anniversary, it launched the NFB Screening Room, an online portal designed to make its films more readily accessible to Canadians and interested viewers around the world. To meet its objective it committed to being as open, transparent, and accessible as possible, including making the films freely available and embeddable on third-party websites.
In January 2009, just over a year ago, it started with 500 films. Today that number has nearly tripled, with almost 1,500 films, clips, and trailers, and the growing selection has been accompanied by a massive increase in audience. There have been 3.7 million online film views just in that first year alone: 2.2 million from Canada and another 1.5 million from the rest of the world. That's set to grow as the daily views, just in January, were 20,000 Canadian films by the NFB. That's per day.
The site also uses mobile technology to increase public access. In October of last year, just a few months ago, it launched an iPhone application that was downloaded more than 170,000 times and led to more than half a million views on the ubiquitous mobile device.
Similarly, the CBC has experimented with new distribution models. In 2008 it released a high-resolution version of the program Canada's Next Great Prime Minister without any copy protection on BitTorrent, the peer-to-peer protocol that's often linked with unauthorized file sharing. The public was able to download, copy, and share the program without any restrictions.
The use of BitTorrent may come as a surprise to some who mistakenly equate file sharing solely with infringing activities. BitTorrent and other peer-to-peer technologies are finding increasing favour with legitimate businesses attracted to its ability to distribute content in an efficient, cost-effective fashion. It has become particularly important for Canadian independent filmmakers and creators, who see it as a cheaper way to distribute their work.
In fact, the CBC's model was inspired by what the Norwegian Broadcasting Corporation had done. It had earlier used BitTorrent to distribute Nordkalotten 365, one of that country's most popular programs. It proved successful, with tens of thousands of downloads at virtually no cost to the broadcaster.
These are a tiny fraction of the success stories we see today. We could canvass sector by sector to see how the Internet is proving enormously valuable to creators, consumers, and producers. But I want to turn to the question of what the Canadian government should be doing. I point to five issues as a starting point for discussion.
The first is Canadian networks. Canadian telecommunications networks were once the envy of the world. That's no longer, as we now rank far from the top in virtually every international ranking. Ensuring that Canadians have access to high-speed networks that rival current leaders like Japan and South Korea should be a top priority. I acknowledge that this is often perceived as an industry issue, but there is a critical heritage dimension here. We need to recognize that policies on high-speed networks and competitive wireless pricing are directly linked to new media success, since they are key distribution systems of Canadian digital content. This involves addressing several issues.
We need universal access so that all Canadians can access this new media.
We need to promote investment in fast fibre-to-the-home services so that Internet-based distribution models can take hold and remove the bottleneck that sometimes arises from either limited screen space or limited channel availability that has hampered some Canadian creators in the past.
Assist Canadians to become part of the creative and participative process. Many of us recognize that the line between creators and users is increasingly blurred today, and we need networks that facilitate both participation as well as consumption.
Finally, we need to ensure that we enforce network rules of the road, including net neutrality and traffic management guidelines, so that all content is afforded an equal opportunity and doesn't fall victim to limited access based on the kind of content or the program used to distribute it.
The next issue is digitization. I think there are few issues more central to new media policy than digitization. Most countries have recognized the need to ensure that national content is both preserved for future generations and made more readily accessible to the public. But in Canada, plans have languished to the point that it feels as if someone has hit the delete key on the prospect of a comprehensive Canadian digital library.
Our failure to keep pace has become readily apparent in recent years. Just by contrast, in September 2005 the European Union launched i2010, a digitization action plan. Several years later Europeana debuted—a website that provides direct access to more than 4.6 million digitized books, newspapers, film clips, maps, photographs, and documents from across Europe. The plan is to host 10 million of these objects by the end of this year.
By comparison, Canada is still largely stuck at the digitization starting gate. Library and Archives Canada was given responsibility for the issue, but was unable to muster the necessary support for a comprehensive plan. The Department of Canadian Heritage would seem to be a natural fit for a strategy designed to foster access to Canadian works. It has funded a handful of small digitization efforts, but has shown little interest in crafting a vision similar to what we see in Europe with Europeana.
The next issue is government as a model user. In recent years many countries have embraced open data initiatives, including both the United States and the U.K. Others, such as Australia, have adopted open licences to make sure that government content is more readily usable and accessible. We have started to see some of those same things in Canada at the municipal level. Cities such as Vancouver, Edmonton, and Toronto are leading the way.
Open government data is consistent with government transparency goals, and holds great economic potential by inviting Canadian businesses to add value to public data. Canadian policy should encompass principles such as open government data, the removal of crown copyright, and more open licences for government data, including things like government video, as well as a commitment to at least equal opportunities for procurement around open-source software. We should be, as a federal government, much like we see at the municipal level, talking about open data, open standards, and open-source software.
Fourth is cultural policy. Canadian cultural policy has long focused on the creation and promotion of Canadian culture. The government has already begun to shift much of its support toward new media and digital platforms. As we move from a world of scarcity, with limited bandwidth and difficulties in accessing culture, to one of abundance, where there is nearly unlimited access to culture, Canadian policies must shift as well from what I think are increasingly unworkable regulations that limit access to foreign content, toward efforts that back the creation and promotion of Canadian content.
In many ways, cultural policy is more relevant than ever. What we have to do is ensure that it becomes relevant by being effective in the current environment. In fact, with a new spectrum auction planned within the next couple of years, I think strong consideration should be given to earmarking some of those proceeds for a digital strategy, including digital cultural funding. We can use some of that revenue directly in this area.
Finally and fifthly, I can't help but deal with it: copyright. It goes without saying that copyright policy is an important part of a government strategy on new media. As part of that policy, I think it's absolutely crucial to ensure that we maintain in the online world the copyright balance that exists offline. This means that creators receive appropriate compensation and have the flexibility they need to be able to create. It means that users maintain their user rights. It means that companies don't face an intellectual property thicket when they attempt to innovate in this space.
I'd point to three key areas here. First off, Canada should implement the WIPO Internet treaties. That said, the WIPO Internet treaties offer considerable flexibility in how they are implemented, particularly around the issue of anti-circumvention rules--digital locks--a fact that was recently confirmed in a Conference Board of Canada report on intellectual property. This means that we can implement the treaties and link it to circumvention where there is actual copyright infringement.
Secondly, there is the issue of intermediary liability, largely thought of as ISPs. Frankly, I think this should be an easy one. Both of the digital copyright bills that we've seen in the past, Bill C-60 and Bill C-61, adopted the same approach: notice and notice. This involves a copyright holder sending a notification to an ISP, which is then obligated to send on that notification to a subscriber.
These notifications work. The Business Software Alliance has noted their effectiveness, as many users receive the notification and alter their conduct accordingly. In fact, recently, the Entertainment Software Association of Canada pointed to its own study, which found that 29% didn't respond to the notice, leaving an impressive 71% that did. I think those are pretty strong numbers.
Thirdly, there is fair dealing. Today, we all recognize that there is a problem with fair dealing. Everyday activities such as recording television shows or format shifting aren't covered. Artistic endeavours like parody aren't covered. Some teaching activities aren't covered, and innovative businesses can't rely on the provision either. This goes to the heart of new media creation.
The solution I'd propose, which I think is a clean, simple one, would be to add two words--“such as”--so that the current list of fair dealing would become illustrative rather than exhaustive, and we would build in flexibility, but--this is crucial--not lose fairness. It is fair dealing, not free dealing. Incorporating a “such as” provision would incorporate all the restrictions that currently exist within the fair dealing framework to ensure the uses are fair, but at the same time would ensure it is not limited to the narrow series of categories we currently have.
This is an exceptionally exciting period of time, I think, filled with potential for creators, consumers, and Canadian business. The Internet and the digital world offer new ways to meet the challenges of yesteryear, such as a lack of screen time, barriers in reaching an audience, and, increasingly, the high costs of production, particularly around distribution.
I think it's great to see this committee grappling with this important issue. I welcome your questions.
Prof. Michael Geist:
We're in absolute agreement that there is a desperate need for a national digital strategy. I would note that the five areas that I highlighted aren't designed to be comprehensive. When we talk about a digital strategy, I think digital strategy involves a number of other areas as well.
What I've heard from the government, paying attention to the Speech from the Throne and some of the things that the industry minister has said, is that strategy may be forthcoming. So I think a lot of us are waiting with bated breath to see precisely what the government has in mind.
I think you're right, that it is long overdue, and I don't think it's just this government. I think, in many ways, we've spent about 10 years going sideways, doing virtually nothing. If you take a look back, from a digital perspective, we had a very solid strategy in the late 1990s. At the time there was an industry minister, John Manley, who was in that same position for a long time. He took it as one of his issues, and it laid the groundwork for a whole series of policies, from privacy legislation to ensuring that all school were connected to a whole range of different things. I think it was a very positive development.
We have spent the last 10 years, through successive governments from both parties, not doing very much. I think the kind of declining rankings that we see, let's say in the telecom area, is a direct result of that. It's almost resting on our laurels, as it were. So I absolutely agree.
You mentioned the need to deal with copyright. I certainly agree with that, and I also hear from the Speech from the Throne that it's happening. I would note that one of the criticisms we saw when the last bill was introduced, in terms of Bill C-61, aside from the substance—I'm happy to talk about the substance, of course—was the lack of public consultation on this issue. In fairness, last summer the government conducted what was, I thought, the best, most open copyright consultation we have seen. More than 8,000 Canadians took the time to respond to that consultation.
If anything, it provides our elected officials with a clear indicator that this matters, certainly to creator groups and to industry groups but also a huge amount to individual Canadians as well. When you do a government consultation in the middle of the summer and 8,000 people turn up to submit their views, this matters.
Prof. Michael Geist:
We hear much the same kinds of things. I actually do think that the consultation, just to close on that, was open. It's true they had these round tables, but anybody who wanted to submit something could. I received so many e-mails from, especially, younger Canadians who indicated this was the first time they had participated in a government consultation. I thought it was encouraging not just to see the numbers but also to see that it was bringing younger people, who traditionally may have been seen as more apathetic when it comes to policy and the political process, and getting them involved. So I thought that was quite a good thing.
In terms of the specific issues, during that presentation, I actually tried to highlight three. One is the WIPO Internet treaties. I think there have been some people who've disagreed with the treaties themselves and the need to implement. I think, in a sense, that train has left the station. I think we are now at a point where everyone is in agreement that we need to move forward on those treaties. What becomes crucial, though, is that the devil is in the details with those treaties and they provide considerable flexibility. I think we need to ensure that they're implemented so that there is the appropriate protection in the digital environment, but, at the same time, we have to ensure that the flexibility that exists in that treaty is reflected in Canadian law as well. And I think that means linking people who pick the digital lock, who circumvent technologies, to instances of copyright infringement.
Someone who circumvents, let's say, to protect their personal privacy because they're concerned someone is looking at their listening habits, let's say, and using a digital lock to facilitate that, I think ought to have the ability to circumvent that lock. It's not copyright infringing, it's ensuring that their privacy is appropriately protected. On the other hand, someone who circumvents so that they can burn 1,000 DVDs and sell them on a street corner, the law ought to be able to come down hard against that and it clearly ought to apply. That's one.
The second issue has to do with the role of intermediaries, of ISPs. As I mentioned, in the prior bills the approach that we've seen is one of “notice and notice”, and I think it's proven effective. If think the “notice and takedown” approaches that we've seen in some other countries have proven highly problematic. And, even worse, the approaches that a couple of countries have begun to experiment with, where they would literally kick people off the Internet, the three strikes approach, I find to be completely disproportionate. They run counter to the very policies we're trying to implement from a digital strategy perspective.
Third is the issue of fair dealing. I think fair dealing becomes, in many ways, more relevant in a digital environment. There's litigation right now, in British Columbia, where there were creators who did a parody of a newspaper and were sued by that newspaper on copyright grounds. They turned around and said, hold on a second, it's an obvious parody. It's not a copy of that newspaper. And the court said, sorry, fair dealing doesn't cover parody. We're more than 20 years past, almost 30 years, with the VCR and it's still not legal for a consumer to record a television show.
I think those kinds of things make the act seem completely anachronistic. If we're going to update into the digital environment, we need to provide much-needed flexibility into that fair dealing provision.
Prof. Michael Geist:
Thanks. Those are great questions.
I'm glad you raised the issue of CIRA and the “dot.ca” domain name. I spent six years on that board. I think it's a well-run, terrific organization. There are more than one million dot.ca domain names registered.
I think we ought to recognize that it generates sizeable sums of money. The way it works is that you register a domain name and you pay that, effectively, licence renewal year after year. The costs of the registry are relatively low, so you're generating quite a surplus of funds.
I think we ought to be doing something good with that surplus of funds. The government still does play a role. It sits on the board in an ex officio capacity on CIRA. The proposal I put forward was indeed to provide everybody with one free domain name. I think, actually, you could do that both as a mechanism to encourage people online... I think it would actually spur business investment, because then you get people who have the domain name and want to start doing things with it. So that's good in that sense.
From CIRA's perspective, I don't think it eats away at all of their revenue, because there are still going to be businesses who want to register, and individuals who want more than one domain name, for which they're going to have to pay. I think it's a nice, tangible way for Canada to create more of a presence online in the form of the dot.ca.
So that's the dot.ca proposal. In terms of what government can be doing, let me touch back for a minute on one of the issues that didn't necessarily seem immediately relevant to new media. This was the issue of open government.
One of the things government ought to be doing to prepare Canadians, so to speak, for this new world is to prepare itself. The reality today is that we talk about all these exciting, innovative things taking place within the private sector. There is mounting expectation for the government to engage in the same way, so that consultations adopt some of the same kinds of openness approaches that we see businesses adopting and public groups adopting, with government trying to do those same sorts of things, government making its own materials available so that people can use, and reuse, and build for cultural, economic, and policy purposes, and for all kinds of different things.
In some of those areas it's low-hanging fruit. For me, in an ideal world we would simply get rid of crown copyright. I don't think it's appropriate to have to ask for permission to use government documents. But if we don't want to do that, we can do what the Australians have done, which is adopt a creative commons licence that says that anybody can use these government works for, particularly, non-commercial purposes without having to seek permission.
We don't have to even change the law. We just have to change the policy so that government begins doing the same kinds of things we're seeing in the private sector, and becoming, I think, more relevant in the lives of Canadians, and in a sense preparing itself for this new media world.
Prof. Michael Geist:
I'll deal with the second part first, the issue of government.
For a number of years the perception of government in the online environment was this e-government, this notion of delivering government services online. That is a very good thing. In fact, Canada was seen as being very good at it. Today there is in many countries an increasing emphasis on what might be seen not as e-government but rather as open government, saying that we can take many of the data sets that reside in government—and not all of these are political policy things. This is everything from weather data--weather data is a classic one that we take for granted--to government-generated, which we make available, and you get economic ecosystems that develop around that. But at the moment there is still a lot of data--population data, labour data, Statistics Canada data, Industry Canada data--largely in data sets that are not readily accessible.
What we are seeing take place at the national level in other countries like the U.S. and the U.K. is to try to put those data sets online and then make them freely available to mix and reuse, in a sense to mash up and have the public add value to it. I can't tell you necessarily everything that is going to happen with that other than to say we are going to see things happen with it.
In Vancouver right now they put their data up, everything from basic garbage collection data to other kinds of municipal service-type data, and they said you can do what you like with it. I was just literally this morning at a meeting on open government, and one of the initiatives they were talking about was VanTrash. For whatever reason, Vancouver changes the dates of trash collection every month. I don't understand why, but apparently they do. What did this do? This took Google Maps, mashed it up with the data the city was supplying, and allowed people to take a look at where they were and to get an e-mail notification the night before their trash was scheduled to be removed. It is the sort of thing we would typically think of as e-government, and in fact, it's not the government providing it, it's the public that is using this data to build and mash up on it.
So I think we're seeing a lot of that and I think there would be a lot of value in doing that.
On the issue of digitization, there are a number of digitization initiatives that are taking place. The University of Alberta is doing some things where it tries to take some of our cultural heritage and bring it into the online world. The best-known digitization initiative anywhere right now is the Google initiative. It is of course taking books and digitizing them.
The Google initiative is a great initiative, but if we live in a world where the only major digitizer is Google, that's a problem. What we need is to recognize that we are a relatively small country. We could, if we wanted, create a national digital library in which we digitize everything. We could start, if we wanted, just with works that are in the public domain. If you want to start with what is non-controversial, no longer copyright-associated, and everything in the public domain all gets digitized, and from there start moving toward all the other works, you could find ways.
Germany is trying to move forward with the same kind of thing and to do it in a way that builds in some kind of compensation model when the works are being used. But if you do that, what could be a better way of ensuring access by Canadians and by the world to Canadian culture than by ensuring it is available in a digital format?
Prof. Michael Geist:
Just to clarify, in terms of BitTorrent being a great success, I was actually saying that CBC was a great success for using BitTorrent, although clearly BitTorrent is a very popular protocol and is successful in the sense that a lot of people use it, although some people understandably have problems with some of its uses.
I would note, though—and I'll address both who uses it and then the ISP side—some of the most outspoken groups that we saw before the CRTC on the traffic management hearing, related to ISPs, were creator groups. There were documentary filmmakers, ACTRA, and CFTPA, who are all out there saying for us, we see things like BitTorrent as an alternative distribution model that provides actually a very cost-effective mechanism for distribution and a means to ensure our work gets out there. I think there is increasingly a recognition that this is useful for many things. There is of course an infringing on authorized activity, but there is lots of authorized activity as well.
In terms of ISPs and their relationship with this sort of content, I think they have a bit of a love-hate relationship with it. Obviously, when you take a look at ISPs that are promoting ever-faster speeds, and say you can download quicker, no one is kidding anybody. They're talking not just about a basic webpage like a newspaper or my website, they're talking about the ability to access content whether streamed or sometimes available through things like the BitTorrent protocol. It's been a driver of customers, to be sure, but it also is an increasing user of bandwidth.
The concern that comes up in the context of ISPs—not to go through the whole CRTC hearing again—is one in which many of these ISPs also have a video arm as well, video on demand, or cable distribution and in a sense, there is the potential for competition between those video services and other means of distributing, including streaming and BitTorrent. One of the real concerns is if what you're looking to do is try to ensure that independent creators in particular have the ability to use these alternative distribution systems, you've got to ensure that the platform itself is treated in a neutral enough fashion. You can't have certain kinds of content that is in the self-interest of the provider being able to promote on a faster lane or what have you, and the other stuff being relegated to a slower lane or being throttled in the way we're seeing today. I think that's a big issue.
In terms of promoting Canadian content, let's recognize the fact that there is an unprecedented amount of Canadian content online. But there is also an unprecedented amount of American content online, and French content online, and U.K. content online, because there is simply an unprecedented amount of content being created today. That's a good news story. The challenge, you're right, is how to find some of these things. Are there programs we could think about? I'm sure there are. I think the reality is that success stories sometimes are by design, sometimes are by fluke—there's any number of ways why certain things go viral and people find success stories. When I look at the Têtes à claques of the world, when I look at some of the other sorts of things, they have found great success, and they've found it doing it online. If the traditional notion of Canadian cultural policy was let's ensure Canadian content is being created, I think it's being created. In some ways, we've got a big success story happening right now.