In general, I would say that the last few days were not good for representatives of Canada's artists and creative unions. The cases offered by the representatives were poor, and their performances in front of the hearings were demonstrably weak.
This is not because the issues are not important; however, the manner in which those issues were communicated to the commission were not particularly convincing.
I would characterize the leading arguments put forward over the past few days this way:
1. Charge levies on ISPs despite ignorance of scope and extent of problem
Almost all of those appearing over the first few days, including representatives from the ACTRA, the Director's Guild of Canada, SOCAN, and the Communication, Energy and Paperworkers Union, can agree on two things: First, that no one is exactly sure where digitization or the Internet is going, how audiences are incorporating new platforms into their lives, or how entertainment industries are adapting to the challenges put to them. In other words, no one can offer much in the way of insight as to the extent or scope of "broadcasting in new media". And yet, those same groups feel comfortable in arguing that the CRTC should impose a levy on Internet Service Providers because what ISPs do is "broadcasting" and that the levies collected from should go into a fund to create content online.
To illustrate, here's an exchange between the Chairperson of the CRTC and Brian Anthony, CEO of the Director's Guild of Canada (the numbers indicate paragraphs in the hearing transcripts):
THE CHAIRPERSON: 728 On page 3 at the bottom you say:Other examples of proposals based on evidence that is "more impressionistic than data based" come from Gerry Neil, special adviser to ACTRA:
"The same shortage of high quality Canadian entertainment programming is evident in traditional media." (As read)
729 THE CHAIRPERSON: Do you have any basis for making that statement? I mean one of the problems of new media is measurement, as you know. We highlighted that nobody really knows what is out there, how to measure it, et cetera.
730 So you are making this categorical statement. I presume you have some evidence to back it up.
731 MR. ANTHONY: We don't feel that there is anything more on the new media than there is in traditional media. There is only so much content being created.
732 THE CHAIRPERSON: Well, that may be so but the point is nobody ‑‑ I haven't seen any study. I haven't seen any measurement or anybody telling me there is a dearth or there isn't a dearth. I mean you are making the assumption since there is a dearth in traditional media there has to be a dearth in new media as well?
733 MR. ANTHONY: Well, we may be ‑‑ this may be more impressionistic than data‑based and we recognize that there is a strong need for more research into what is going on in the new media.
581 MR. NEIL: So on November 11th, 2008 we visited various websites, Canadian broadcasters' websites, to see what they had up there.And if the idea is to measure the amount of Canadian content online. how would one do it? Stephen Waddell picks up that challenge here when we he was asked by one of the commissioners:
582 Global's website had episodes of nine television series available for viewing and only two of those were Canadian. The other seven were American programs, a not particularly good ratio.
583 CTV was much better. They had 24 programs available and they had 12 which were Canadian and the other 12 were non‑Canadian programs.
584 Yes, there are isolated examples, the exceptions that prove the rule; the rule being that in our experience, you need to have appropriate regulations in place to ensure that the necessary space is given for Canadian content, the necessary funding is available for it and the necessary promotion is given to it.
467 MR. WADDELL: Well, look it, we are not looking for any heavy duty regulations here just to be clear. We are looking for some incentives to be put in place to create Canadian programming. Go with the Chairman's regulation, a light approach on this one. And in that regard we look to potentially an ISP levy.These kinds of arguments continued into the second day, when representatives from Canada's recording industry got a chance to defend their submissions before the commission. As Frances Munn points out in reviewing day 2 of the hearings, an alliance of unions representing creative personnel in Quebec suggested that ISPs should be licensed like broadcasters, and should have to abide by Canadian content regulations. They, along with the ’Office des télécommunications éducatives de langue française de l’Ontario, also admitted that they were unsure as to what kinds of business models work online, but that the CRTC could go some distance in helping them figure it out.
Remember: I am not saying that the creative industries don't have issues that need to be dealt with. However, calling for a levy on ISPs for a fund to create content in the absence of evidence is asking the CRTC to regulate preemptively, to assume a problem exists when it's not abundantly clear that it does. It is also saying that, in the name of ignorance, that the CRTC include ISPs under its regulatory umbrella as broadcasters when they also serve a number of other purposes, like the post office, or the bank, or the travel agent. Finally, if we buy the argument that the levy would be passed onto Canadians in terms of their service fees for access (which most of us would agree is an easy equation the ISPs can make to the public to curry favour for its own position, even though there's nothing stopping rates from being raised for some other reason), then the creative unions are asking Canadians to pay while the everyone figures out where the problems are.
2. Intervention in the name of maintaining professionalization
I have been particularly struck by the way "professional, high quality" production has become a key motif in these hearings. No one is interested in regulating what people put up on YouTube, everyone says, it's just those productions which are professionally rendered for commercial benefit. The Canadian Conference for the Arts suggested that it could help the commission in this regard, as it had drafted its own criteria for what constitutes a commercial artist in its submission to the CRTC. The Canadian Independent Record Producers Association (CIRPA) declared that making a professional level as a musician is harder today than it used to be. What's interesting about such developments is that it seems to be asking the commission not only to become a promoter of Canadian content, and to provide economic safeguards for the industry, but to also act as a body that defines guild membership. This is important in the new media age, since more people can produce audiovisual works of varying qualities at relatively little expense. What would happen if the CRTC brought down a levy on ISPs to a create a fund that any Canadian could access to produce works for new media -- not just those who do this for a living? Now that would be interesting, wouldn't it?
3. Intervention in the Name of "Shelf Space"
The phrase "shelf space" came up a lot in the first two days. First, the internet was characterized by the Chairman as offering "unlimited shelf space". Then, on the second day of the hearings, representatives from CIRPA and the copyright collective SOCAN suggested that the CRTC needs to regulate online activities in the need of ensuring "shelf space" in new media. This might mean content requirements for internet-only music streaming services (this would require licensing, too); it might also require that web pages offering music or audiovisual works devote a certain percentage of their web pages to showcasing Canadian content.
One problem here: Is the language of shelving an appropriate way to frame one's interface with the digital devices? My immediate instinct is to say no. Some in media studies talk about one's experience as one involving a number of screens, or windows. A colleague of mine thinks "menu" might be a better way of looking at it, since shelves can be at eye level or higher or lower. Some shelves can be sent to places where they would be out of sight. Menus items are to be always available, should we choose to select something from them.
References to "shelf space" are very popular within the discourse around cultural policy in Canada. This is because calling for shelf space appears relatively anodyne - all anyone is asking for is exposure, not for someone to tell people what to listen or watch. It bears noting here that "shelf space" is also part of a cluster of arguments about causality which circulate in the cultural sphere. Another example is the one that equates the success of a Canadian musician to Canadian content regulations.
These arguments require a thorough rendering to determine the validity of their claims. However, such rendering is not necessary because many interpreters of those arguments simply fill in the blanks and take the same logical leaps made by those people making them. No one is going to discount that the establishment of Canadian content regulations has not supported the creation of a music industry, but that does not mean that such regulations created the music industry. Policies mandating content quotas or encouraging exposure generate production activity, but they do not immediately equal success (whatever that might mean), and to make that equation places the question of artistic success as a policy matter, even though, as many know, the making of a successful piece of music relies on a number of factors -- luck being one of them -- of which the regulatory apparatus is only a component of a larger picture. That doesn't stop these arguments from continuing to circulate as if evidence was not necessary. However, that doesn't make these arguments particularly convincing, either.
4. Arguments about "Swamping"
These arguments start from the position that even though things are still in their early phases, policies are necessary to avoid Canadians from being overrun with content from other places. For Richard Hardacre from ACTRA, the concern is that Canadians will be "swamped" with Hollywood movies and American culture. Of course, the rhetoric about swamps works on two levels, painting an image of Canadian citizens being overrun with content. However, it's not an issue of being overrun with operas; but rather the stuff from the swamp, or "uncultivated ground" of mass culture. Claims about "foreign sites" or "foreign content" should make one uneasy not only because it seems to equate one's media consumption with one's commitment to citizenship, but also because the phrase carries the taint of unfamiliarity, of disease, and of distrust.
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To wrap up: Over the past two days, I got the palpable sense that many of the commissioners, most notably the Chairman, were incredibly frustrated with the positions put forward by the creative organizations and representative lobby groups. One can easily say that this is part of the performance, since everyone knows that these hearings are being televised. At the same time, though, the CRTC, and KvF in particular, seem to be more sensitive to the ways in which the dynamics of new media are different than those that came before them. The stubbornness to acknowledge this fact by almost all who appeared over the first 2 days of the hearings seemed to strike a nerve with the Commission. That shows a surprisingly low level of new media literacy and threatens to marginalize these groups at a time when "fact-finding" is supposed to be one of the purposes of this investigation.
Even if mechanisms from "old media" need to be applied or adapted for digital settings to address the industrial concerns that many are feeling associated with new forms of digital distribution, denying any difference and sticking one's head in the proverbial sand is unlikely to win support, either with the public or, it appears, with some people at the CRTC.
It will be interesting to see how the dynamics change over the coming weeks, when more representatives from the managerial side of the cultural industries get their chance to appear before the commission.
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