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In Search of a Canadian Digital Action Strategy

In recent months, there has been growing support for a national digital strategy. The Canadian Radio-television and Telecommunications Commission explicitly identified the need for a strategy in its new media decision as have prominent leaders in the technology, telecommunications, broadcast, and education communities.  

The issue now appears to be resonating within government. Industry Minister Tony Clement has convened a digital strategy summit later this month, Canadian Heritage Minister James Moore has emphasized the importance of online platforms, and Ontario Premier Dalton McGuinty has pledged to support a national strategy.

The need for a national strategy stems from the realization that Canada is rapidly falling behind much of the developed world on digital issues. The gradual hollowing out of the Canadian technology sector (one-time giants such as Nortel, JDS, Corel, Newbridge Networks, and Entrust are all either gone or unrecognizable today), the absence of a strategy to digitize Canadian content, the inability of the CRTC to make sense of its governing legislation as it applies to the Internet, and the plummeting rankings of Canadian high-speed Internet and wireless services all point to a problem that can no longer be ignored.

Industry watchers point to the late 1990s as the last time Canadian digital policy was driven by a cohesive plan.  Led by then-Industry Minister John Manley, Canada introduced privacy and e-commerce legislation, online consumer protections, and supported high-speed networks that rivaled the best in the world.  Other countries took note and today many - Australia, New Zealand, Britain, Germany, and France among them - have developed their own digital strategies.

Most strategies identify high-level principles such as fostering consumer confidence or ensuring broadband access.  Given that Canada is late to the game, it should think about taking a different tack.  Since broad principles rarely generate action, the government should forego the conventional strategy and move directly to an action plan with specific deliverables.

The starting point for any action plan is leadership.  Canada needs digital leaders, including a Chief Technology Officer and cabinet-level attention to the issue. The not-so-secret reality of the Industry Minister portfolio is that it is simply far too large to give all the issues under its mandate the necessary attention.  Manufacturing, automotive, telecom, foreign investment, competition, consumer affairs, intellectual property, scientific research and dozens of other issues all fall under the same umbrella.

While this was the intention back in the early 1990s when Industry Canada was formed as a "super Ministry" that merged Consumer and Corporate Affairs with Communications, this experiment has failed.  With so many issues demanding attention, it should come as little surprise that many issues either fall under the radar screen or take months to be addressed.

The solution?  Take a page from many of our trading partners by creating Ministers (or at least junior ministers) with responsibility for specific digital issues.  For example, Australia has both a Minister for Innovation, Industry, Science and Research and a Minister for Broadband, Communications and the Digital Economy. With cabinet level prioritization, Australia has introduced national broadband strategies and other innovation policies.

On a substantive level, there is room for a greater governmental role, but it should avoid the temptation to pick winners or specific technologies. With that in mind, a Canadian digital action plan could focus on five main issues:

Incentives for World Class Networks

Canadian telecommunications networks were once the envy of the world.  No longer as Canada now ranks 28th out of 30 OECD countries in terms of speed and pricing.  Ensuring that all Canadians have access to high-speed networks that rival current leaders such as Japan and South Korea should be a top-priority. The plan could involve funding for rural broadband initiatives (the 2009 budget provided less than the Conservatives promised during the fall election campaign), tax incentives to promote investment in fast fibre-to-the-home services, and the removal of foreign investment restrictions to encourage new entrants.

The digital television transition - Canada will shift from analog to digital television in 2011 - will free up spectrum that could be used promote new innovation by reserving space for unlicensed uses (sometimes referred to as “wifi on steroids”) and encourage the entry of new competitors. The shift will require some significant investments, however, since broadcasters must phase out their analog transmitters in favour of new digital equipment. There are mounting concerns that Canadian broadcasters will not be ready in time and a Canadian digital action plan must address this issue. The need for a timely transition is particularly important given the potential to use a portion of the spectrum proceeds, which last time topped $4 billion, toward funding for broadband networks.

Establish A Presumption of Openness

After years of closed, "walled garden" approaches, the world is embracing the benefits of openness. The City of Vancouver recently adopted an openness policy that establishes a preference for open standards, open source software, and open government data.  The federal government should do the same, promoting the use of cost-effective open source software and the benefits of commercial and civic activity around accessible government data.

A presumption of openness would extend to other policy areas as well. In the United States, the Federal Communications Commission adopted some "open access" requirements for its most recent spectrum auction, mandating certain openness standards in the use of this spectrum.  Canada should follow suit since open spectrum policies would spur new innovation and heightened competition by facilitating greater consumer mobility and promote the introduction of new services not tied to a single wireless provider.

The openness principle should also cover access to taxpayer-funded research.  In recent months, the United States and the European Union have taken strong steps toward making their research openly available, with legislative mandates that require researchers who accept public grants to make their published research results freely available online within a reasonable time period.

In Australia, Senator Kim Carr, who serves as the Minister for Innovation, Industry, Science and Research, has remarked that "to the maximum extent practicable, information, research and content funded by the Australian governments. . . should be made freely available over the Internet as part of the global public commons. This should be done while the Australian Government encourages other countries to reciprocate by making their own contributions to the global digital public commons."  Canada can ill-afford to remain a by-stander as other countries create an open global science commons.

Modernize the Law

There is seemingly universal agreement that several Canadian laws are long overdue for a digital reform. The government took an important step in this direction with the introduction of the Electronic Commerce Protection Act, which combines anti-spam rules and consumer protections for the digital age.

There remains much more to be done, however, including updating privacy legislation and changing Canadian tax rules to encourage venture capital financing and corporate investment in new technologies. The Telecommunications Act and Broadcasting Act should be merged into a single law with streamlined principles that reflect the current digital world.  The law should preserve innovation in the network through modernized neutrality principles and mandate greater transparency in network management and pricing.

Canadian copyright law should be updated by implementing provisions that comply with international treaties and meet legitimate consumer expectations.  Potential changes include a modernized backup copy provision, expanded fair dealing rules, the narrowing of statutory damages to commercial cases of infringement, and legal protection for digital locks only if they do not override user rights.

Remove Barriers to Innovation and Competition

A Canadian digital action plan should help promote innovation by removing several long-standing barriers.  This includes lifting foreign investment restrictions in the telecommunications sector, providing creators with greater certainty of access to underlying works, and establishing limits on liability for Internet intermediaries including Internet service providers and search engines.

Canadian patent and copyright law should be examined to guard against the gridlock that can stymie innovation, while Canadian regulators - particularly the Competition Bureau and the CRTC - must become far more aggressive in protecting consumer interests and guarding against anti-competitive behaviour.

Promote a Canadian Internet

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 (limited bandwidth and access to culture) to one of abundance (near unlimited access to culture), Canadian policies must shift from unworkable regulations that limit access to foreign content toward efforts that back the creation and promotion of Canadian content. In fact, another portion of the spectrum auction proceeds could be directed toward digital culture funding.

Support for a Canadian Internet should extend beyond traditional funding programs, however.  The Canadian Internet Registration Authority could use part of its forthcoming financial surplus (which could soon exceed $1 million dollars annually) to assist with Internet policies or by granting every Canadian a free domain name to encourage their participation in the online world.  

Canada could also get on with the job of creating a national digital library by digitizing millions of Canadian books for the benefit of Canadian authors and the broader public.  Moreover, groups like the CBC and the National Film Board should be working to digitize thousands of hours of Canadian film, television shows, and radio programs.

A Canadian digital action plan should do more than simply present general principles or mirror strategies found in other countries.  Canada has fallen behind the curve and there is no time to waste.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached   online at