CMNS 230 1
Public Policy, Regulation & Instruments
Part Two: the Policy Process
CMNS 230 2
The Policy Process
• Environmental scanning• Problem Identification• Agenda Setting• Design & Policy Formulation• Analysis & Options• Decision• Implementation• Evaluation & Feed Back Loop
CMNS 230 3
Stages of Public Policy Process
CMNS 230 4
The Policy Analysis Method
• Scan the environment: problem definition• Problem Analysis
– What are the sources of the problem– Why is the problem important– What are the different stakeholders’ views of the problem
– Which options do they support and why• Cost Benefit Analysis ( multiple perspectives)• Political Opportunity and Cost Analysis
• Recommended option & Plan for Implementation• Briefing Document to the Deputy Minister and Minister includes a communication plan and metrics for policy evaluation
CMNS 230 5
Two Rival Causal Models of the Policy Process
• Rational Planning• Incremental ( Policy Learning)• Third: underlay of a competitive pluralist conception: game theory– may cross cut the two rival models
CMNS 230 6
The Policy Development Process
• Evidence based• Consult stakeholders• Examine and weigh evidence• Best described as the selection of a goal, means to achieve it, monitoring & assessing outcomes.
CMNS 230 7
Policy Instruments
• The form of administration or implementation used– Range on a continuum of coercion– Soft to Hard Power– EG: expropriation, ownership, taxation, regulation, subsidy,partnership, exhortation, persuasion
– Drawn from administrative law– Usually therefore subject to appeal and judicial review somehow: intra vires? Fair? Transparent?
CMNS 230 8
Examples of Policy Instruments
• Legislation– `EG: Income Tax Act– Disallows advertising expenses on US media as deductions– Conversely, can set up tax incentives ( allowable deductions)
• Regulation/ Agencies– Canadian Content Quota on exhibition: CRTC– The Canadian Copyright Collective
• Subsidy– Canadian Television Fund investment in drama
• Ownership– National Film Board, CBC
• Monitoring– Senate/Standing Committee on Heritage reviews
• Exhortation– Pushing Cultural Diversity Guidelines: CRTC ‘expects’ Canadian
Association of Broadcasters to develop them• Persuasion
– Policy summits: policy learning
CMNS 230 9
The Idea of Policy Paradigms
• Paradigm: world view, organized policy frame• Source: policy discourse/analysis of ideas• Implementation: Policy Networks• Where overall ideology of the regime intersects
with specialised policy area
– Eg: health: preventative versus curative care
• Paradigms are systems of interpretation of the enabling legislation– they articulate values and establish ‘brands’ or ‘metaphors’ to mobilize learning, and consent in policy networks
CMNS 230 10
The Key Paradigms at Department of Canadian
Heritage• Public Interest ( Broadcasting)• Pro Indigenous Market Model• Cultural Development• Social Cohesion• Cultural Diversity• Cultural Rights
CMNS 230 11
Paradigmatic Shifts
• Change over time• Depend on dominant ideas of the day
• Vary every 4 years with party in power
• Contest of policy stakeholders
CMNS 230 12
A Case: The Local Broadcast
Retransmission Right• Currently before the Federal Government
• Broadcasters own the signal they transmit under S. 24 of the Copyright Act of Canada, and they negotiate exclusive rights to carry programs acquired from others
• They receive payment for their signal if it is carried in a distant market but not a local one
CMNS 230 13
Definition• Retransmission consent involves the complicated
agreements / contracts brokered between television networks and local broadcasters and then local broadcasters and cable or satellite systems.
• How it works:– The local broadcasters demand the exclusive right to retransmit their produced or licenced content in their local communities in order to attract advertisers and maintain profitability. Then, in another set of negotiations, the broadcast affiliates cut deals with local cable companies allowing them to retransmit the broadcaster's signal to local communities, subject to tiering and other cable regulations set by the CRTC
• Thus, involves copyright and business contract law
CMNS 230 14
The Policy Problem
• Should broadcasters with local affiliates ( eg. CBC, Global, CTV) received payment for their signals?
CMNS 230 15
Background
• Legal– Until the Free Trade Agreement in 1988, cable distributors did NOT pay
for the signals they retransmitted over their lines– Under pressure from US border broadcasters, Canada introduced a
copyright amendment called the DISTANT SIGNAL RETRANSMISSION RIGHT• Which applies only to over the air transmission
– Cable now must pay to retransmit distant signals under a COMPULSORY LICENCE• Not a market set mechanism ( see Lincoln, 452).• The Copyright Collective of Canada collects the fees by formula and then
redistributes them to copyright holders• Most of the money goes to US rights holders• Partially remedies unfair position between cable and broadcast industries on
copyright
• Economic– The rise of hybrid-financed specialty channels ( which charge cable
distributors a fee for their service on a subscription model and also raise revenues through advertising) raises new questions of fairness: more of a market model, since high demand channels command higher fees
• Technological– Digital transition: ie the move to digital transmission requires new
capital infusion
CMNS 230 16
Issues and Implications
• Plays into the power battle balancing private property rights and the public commons
• May be the thin edge of the wedge entrenching digital rights management systems: designed to extract payment from consumers and extend privatization
• Has the ironic effect of saying digitization trumps use of the spectrum
• Yet, may jeopardize public benefits attached to spectrum use:- threaten local and threaten can con obligations to Canadian production
• May de facto establish a North American rights system in broadcasting: cause sales of stations to US, bankruptcies
CMNS 230 17
A Profile of the Stakeholder Interests and Positions
• Cable: opposes local right• Private Broadcasters: want local right set at market:
not compulsory• CBC: wants local right• Not for Profit Broadcasters (Vision, APTN etc):
oppose• Independent Private Specialty Channels( e.g..
Fairchild, Ethnic Channels Group) argue that a sub fee paid to over the air broadcasters, cable and satellite providers will be passed along to consumers, or else put pressure on reduction of current fees to independents
CMNS 230 18
Relevant Experience in Other Regimes
• WIPO does not, as yet, recognize a local retransmission right
• Under debate: the need for a 50 year IP right in broadcast signals on the basis that broadcasters “invest” in their signals
• 83 countries (but not the US and 99 other countries) have signed on to the Rome Convention that gives broadcasters a 20 year intellectual property-like right in their signals
• Icrave case the precedent
• In the US, the “retransmission consent” law gives broadcasters the right to demand compensation from cablecasters simply mandating a contractual relationship between broadcasters and cablecasters, integrally interconnected to the “must carry” law, which forces cable-casters to carry local broadcast signals but it is contractual, not copyright
• EU has local retransmission right
CMNS 230 19
Policy Options
• No Change to Copyright: Status Quo– Pro: protects public nature of signal;l ie blocks concept of
encryption, digital rights management from proprietor’s perspective
– Con: suppresses copyright revenues to rights-holders• Change to a Compulsory System
• Merely extends current regime to include local signals• A regulated sharing of the pie• Pro: incremental, and low cost solution• levels the playing field
• Con:– May strain the old TV network / local broadcast affiliate relationship beyond the breaking point. Who is going to
deliver local news, weather, traffic and sports if the financial viability of local television broadcasters is undermined and local affiliates start going under?
– Most copyright payments go to foreign rights-holders– There is an inbuilt bias to tonnage ( a commercial quantity driven test of
ratings)
• Change to a Market System– Pro: recognizes value of local broadcast– Con: may disadvantage smaller, independent players unless
regulated
CMNS 230 20
The Bypass Game
• Instead of waiting for copyright revisions which are stalled, private interests are pushing for a market right to charge subscription fees from the CRTC
• This now before the TV Policy Review ( Broadcast Notice CRTC 2006-5)
• Effectively pre empts a copyright solution
CMNS 230 21
BUT
• No anteriori evidence of financial harm• A forecast scenario of hypotheticals• Public commons impacts not clear: nor is impact on
independent producers
CMNS 230 22
Recommended Policy Option
• Incremental copyright reform• Monitor impact on independents• Ensure a proportion of revenues flows through to public
benefits: priority programming
CMNS 230 23
Memorandum to Cabinet ( 750-1,000 words)
• A statement of issue• Recommendation• Who consulted• Strategic Political Considerations
– Federal Provincial Relations– Environmental Impact
• Communications Plan23
CMNS 230 24
Sources:
– http://www.publicknowledge.org/pdf/wipo-statement-20060905.pdf
– http://www.cab-acr.ca/english/television/submissions/default.shtm
• September 1, 2006 - Submission• Public Notice 2006-72, Call for comments on a request by the
Governor in Council pursuant to section 15 of the Broadcasting Act to prepare a report examining the future environment facing the Canadian broadcasting system (pdf)
• Appendix 5: Emerging Trends in the TV Rights Landscape (pdf)• http://www.cbc.radio-canada.ca/submissions/crtc/pdf/BNPH-2006-5
_TV-Policy-Review_270906.pdf