Timothy M. Denton

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The true north strongly regulated

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Image result for reynolds mastin

 

The Canadian Media Producers Association met this week in Ottawa. There was a Twitter hiccup in a panel discussion about the head of the CBC alluding to Netflix and cultural imperialism in the same breath. I would like to point out that whatever Catherine Tait said, it was a jeu d'esprit of no real significance. The deeper nonsense came from the CMPA's President, Reynolds Mastin, who maintained the true faith of Canadian regulated broadcasting. Near the end of the plenary  at https://www.facebook.com/theCMPA/videos/872222383169417/ at 1:22:00 he lets Netflix have a blast of it. I quote him below.

 

"When all you say is no no to regulation, all we have is no sense - I presume the government has no sense - of what your real bottom line is, and what the trade-offs are from a regulatory perspective if and when you are brought into the regulatory fold  So from your perspective what would be the least worst option: mandatory contribution to the CMF, CPE contributions, exhibition requirements, and the other disservice I think that does to us as an industry and for a government trying to grapple with all of this is, we don't have the benefit of Netflix' extraordinary experience in this area, so we truly can retrofit a regulatory system in a way that makes sense for the incredibly powerful platform that you have created and all the others that Canadians are accessing today, and that I do think is a missed opportunity, and I hope we are going to hear on this stage next year what Netflix' views are that, if they did have to be regulated, what that would look like, because we are going to get there."

 Uh, no. we are not going to retrofit the licensing scheme of the Broadcasting Act onto the Internet. More people should take note of the Internet Society, Canada Chapter's view of this. Parliament has no authority to subject the Internet to the licensing scheme of the Broadcasting Act. They may have thought they did, and most people are firmly of the conviction that a regulatory agency can subject every video sent across the Internet to licensing, or worse, exemption from licensing. They might wish to consult the Charter of Rights and Freedoms and lawyers less enthralled to the regulatory universe of the Broadcasting Act, and its beneficiaries.

If I had had $5 from every one of the serious players who insisted that interprovincial telecommunications undertakings would never be declared federal (AGT case, 1987) I would have had a case of champagne. I am quite used to taking minority views and being proven right. It just takes a few decades, sometimes.

I have been reading Andrew Roberts fine and balanced biography of Churchill. Those familiar with the story know that Churchill was thought dangerously wrong  by the British Establishment for thinking and saying loudly in the 1930s that Hitler meant war, and that Britain's unwillingness to prepare for war was only encouraging the German dictator. Evidently, I am no Churchill and the Broadcasting Act is no Hitler. Yet those of us who think that the Broadcasting Act is the perpetuator of a miasma of mediocre television and cushy economic privileges have no hesitation in saying that Canada's television production system badly needs a shake-up, and is getting one from Internet-based programming platforms. And they will not be regulated by the Broadcasting Act.

I have heard people in the early 1980s insist, fervently, that the feds would never assert jurisdiction over provincially regulated telephone companies. I also heard from many supercilious types that the Soviet Union was here to stay, and that we ought to accommodate it.

Yeah, sure. Reynolds Mastin will be surprised, and he will not be alone.

As to Catherine Tait's silly words,  the real cultural imperialism, in a morally serious use of that word, is of the CBC toward the citizens of this country who live outside certain secluded urban retreats - the other 98% of us. The right to depart from the regulated cultural system through commercial and technical choice does not constitute imperialism, and never will. More and more of us live in a post-Broadcasting Act world. We like it here. Long live the Internet!

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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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Guest Sunday, 21 April 2019
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