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

The need for a federal 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 dead or unrecognizable today), the absence of a strategy to digitize Canadian content, the inability of the CRTC to make sense of its 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 rivalled 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 designs 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 forgo 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. 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:

1. 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), and tax incentives to promote investment in fast fibre-to-the-home services.

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 and encourage the entry of new competitors.

2. Establish 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 also extend to spectrum auctions and open access to taxpayer-funded research.

3. Modernize the law

There is seemingly universal agreement that several Canadian laws are long overdue for digital reform. The government took an important step 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 world of technological abundance rather than scarcity. 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, and legal protection for digital locks only if they do not override user rights.

4. Remove barriers to innovation

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.

5. 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. That should continue, as 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 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.

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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 at mgeist@uottawa.ca or online at www.michaelgeist.ca

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