In a day that started with Canadian Heritage Minister Steven Guilbeault urging the Senate to focus on passing Bill C-10, Senators from across the political spectrum again signalled that they believe that Guilbeault’s bill requires extensive hearings given the flawed legislative approach in the House of Commons and a resulting bill that raises a wide range of policy concerns. Concerns with Bill C-10 were raised by virtually every Senator to speak during yesterday’s debate: Senator Donna Dasko noted that “public confidence is lacking at this point in time” in the bill, Senator Colin Deacon argued that the government has failed to address the core concerns involving privacy and competition, and Senator Pamela Wallin called the bill “reckless” and urged the government “to go back to the drawing board.” Those speeches came on top of the first day of Senate debate in which Senator Dennis Dawson admitted that “everybody recognizes the bill is flawed” and Senator Paula Simons said the bill reminded her of the Maginot Line.
Two Senator speeches merit particular mention. First, Senator Leo Housakos provided the bookend to the Simons speech with an evisceration of the content of Bill C-10. While the Simons speech raised the big picture questions about the Bill C-10 regulatory approach, Housakos simply destroyed the bill, highlighting the exclusion of important voices from committee hearings and the negative implications of its substantive provisions. At least three elements stood out. First, the impact of removing Section 4.1 from the bill:
The fact that the CRTC doesn’t consider you to be a broadcaster when you upload a video onto YouTube means nothing if they can make YouTube change its algorithms so that next to no one will ever see it. It means nothing if they can instead make people see a video with the kind of content they prefer.
Second, Housakos identified the core concern with discoverability requirements:
by prioritizing some content the CRTC will naturally be de-prioritizing other content in ways that go beyond limiting speech. It will be picking winners and losers.
And who will be the winners and losers? Housakos calls it:
The beneficiaries of that system will be the established well-funded media production companies with the lobbyists and lawyers to work it to their advantage – more gatekeepers – not the independent YouTube performer looking to go viral and become the next Justin Bieber or Lily Singh.
Third, Housakos linked the current success of the Canadian film and television sector with the gatekeepers’ support for Bill C-10:
The problem isn’t a lack of investment in Canadian talent and Canadian stories. The problem, if you see it that way, is that it’s happening without the need for intermediaries like the Canada Media Fund. The middlemen aren’t getting their cut of the pie, and what’s worse for them is that they’re not controlling which artists and which producers are receiving funding. They want to pick the winners and losers. That’s the beauty of the digital age. The success of artists and producers isn’t determined by the gatekeepers.
If the cost of Bill C-10 and the discoverability rules were not bad enough, Senator Julie Miville-Dechêne unintentionally succeeded in demonstrating how Bill C-10’s approach is a solution in search of a problem. After Housakos noted that Netflix’s multi-million-dollar French-language Quebec film Jusqu’au déclin is considered a foreign film, not a Canadian one (placing the spotlight on the archaic Canadian content rules), Miville-Dechêne went back to that film in discussing discoverability:
I myself ran into difficulty with Canadian content not being discoverable on Netflix when the first Quebec film produced by Netflix became available on that platform. I couldn’t remember the title of the film, which was Jusqu’au déclin, and it wasn’t among the top recommendations, even though it was a new release. I asked Netflix’s spokespeople why this title wasn’t made more visible for Quebec and Canadian subscribers. I was told that titles are ranked according to the interest displayed by members, and that I could simply have typed in “Canada” and the title would have appeared, but that wasn’t something I was aware of.
Senator Miville-Dechêne’s comment raises at least three issues. First, contrary to the repeated claims that Netflix does not invest in producing Canadian content, films such as Jusqu’au déclin suggest otherwise (the fact that it does not technically qualify as Canadian content is a problem with the Cancon definition system, not Netflix). Second, discoverability of the film does not appear to be a problem since it has been viewed more than 21 million times by people around the world, with more than 95% of viewers outside Canada. Third, the fact that finding Canadian content requires nothing more than typing “Canada” is both obvious (I did a post on the issue years ago) and something that confirms yet again that the Bill C-10 discoverability rules are unnecessary.
The Bill C-10 debate continues in the Senate for one more today later this afternoon.