1. Resolved: That over the top services should not be regulated by the CRTC under the Broadcasting Act For the proposition Timothy Denton The Windermere Group

2. Past a certain age, everything in life is Impossible, Immoral, Illegal or Fattening Illegal is off the table by common agreement – We agreed not to discuss the actual state of law Leaving immoral, impossible, or fattening “Over the top” –another word for confusion Signals delivered by the Internet are said to be “over the top” of a physical signal infrastructure, separated by a logical layer of TCP/IP. Just the same as www, Uber, or any other application. Video programming is an application

3. What is the issue about? Freedom It is not about “regulating the Internet”; it is about regulating your speech The argument of the opposition says, if it is video, it is a licensable activity, and you will speak with the permission of the state. That this system of regulation can be limited to those who compete with Canadian television industry; That it will not affect your rights to upload video; And that it will not cost too much.

4. Broadcasting is just so 20 th century The 20th century saw the emergence of radio broadcasting The system of radio regulation evolved by 1930s was predicated on – Signals propagating in space without artificial guide – Authoritative assignment of spectrum by the state to users, by licences – “The last time technology and radio regulation intersected was 1912”. (the Titanic)

5. The broadcasting regime The system was predicated on scarcity (of bandwidth), locality (because signals originated somewhere) and range (because of radiated power). So “voices” were few, and the opportunity for exercising control of what people heard was real. Broadcasting licensing was layered on top of radio licensing, and on the same assumptions. No change to either regime has occurred by reason of advances in computer power.

6. Speech I use "speech" in the sense of encompassing print, drama, or talking, whether or not augmented by a technical system of transmission. Speech through a printing press is a 15th century augmentation of the written word; radio is a 20th century augmentation of speech, and television in the main is an augmentation of drama.

7. Speech by permission of the state The Broadcasting Act says you speak with permission of the state, and the penalties for speaking through a broadcast medium without permission are severe – 32. (1) Every person who, not being exempt from the requirement to hold a licence, carries on a broadcasting undertaking without a licence therefor is guilty of an offence punishable on summary conviction and is liable – (a) in the case of an individual, to a fine not exceeding twenty thousand dollars for each day that the offence continues; or – (b) in the case of a corporation, to a fine not exceeding two hundred thousand dollars for each day that the offence continues.

8. The older system of speech Printing is done through the older system of speech control – No licence required from the state to write letters, newspapers, novels, blogs. – A couple of revolutions saw to that! – You are liable after the fact for what you wrote (libel, criminal activities etc.) The Internet belongs to that older system of law. Which will prevail?

9. Video The argument for the regulation of speech through video is that, “who says full-motion video, says broadcasting” [within the meaning of the Act] Then it is a licensable and regulable activity So, faced with the administrative difficulties of regulating everybody using full motion video, the CRTC “exempts” websites from regulation.

10. Exemption orders http://www.crtc.gc.ca/eng/archive/2012/2012 -409.htm http://www.crtc.gc.ca/eng/archive/2012/2012 -409.htm http://www.crtc.gc.ca/eng/archive/2009/2009 -329.htm http://www.crtc.gc.ca/eng/archive/2009/2009 -329.htm Reporting requirements for “new media” – http://www.crtc.gc.ca/eng/archive/2010/2010- 582.htm http://www.crtc.gc.ca/eng/archive/2010/2010- 582.htm Exemption orders are just a way of regulating without licensing.

11. So what’s it going to be? Licensing under the Broadcasting Act, or no licensing under the older regime of freedom? The opposition will say – We are only regulating.000001% of all websites – We are only collecting a teeny-weeny little tax – It won’t hurt at all So they impose speech controls for the many where none existed before.

12. And why are we doing it? When the business model fails, go to government to save your business model. Extend regulation rather than think about what needs saving. Canadian broadcasting joins the long-distance telephone monopoly, music distribution, taxis, hotels, maps, and every other thing that can be digitized in the long list of businesses eviscerated by newer, more effective technology.

13. Don’t confuse distribution with content The argument for regulating video across the Net confuses saving the distribution channel with the art-form we care about. Saving Canadian content is different from saving distribution channels. A huge amount of video is being produced for TV, cable and Internet: someone is finding an audience. If you need to subsidize content, do so. Do not interfere with the freedom to communicate across the Net of ordinary people.

14. Remember the ordinary user More is at stake than the Canadian TV production industry People believe in their right to communicate freely; they will not take kindly to an industry lobby telling they must pay a tax for a privilege they hold to be a right. Other countries are producing quality programming without licensing free speech. Democratic participation will not be thwarted or taxed to save your (industrial policy) bacon.

15. Thank you The Windermere Group is Timothy Denton and Philip Palmer.Timothy Denton Philip Palmer tim@tmdenton.com philip@thewindermere group.ca philip@thewindermere group.ca