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Justin Trudeau: “Canada, the EU, and our partners are facing a defining moment” CC-BY-4.0: © European Union 2022 – Source: EP". (creativecommons.org/licenses/by/4.0/) https://flic.kr/p/2namPQG

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Keeping the Bill C-11 Implementation Secret, Regulating User Content, and Citing Non-Existent Benefits: Some Reflections on the House of Commons Online Streaming Act Debate

The Online Streaming Act (Bill C-11) was the subject of hours of debate yesterday in the House of Commons as the government presses to get the bill out of second reading and onto committee for hearings and further study. Setting aside the claims of “censorship” on one side and “you don’t care about creators” on the other, there were some notable takeaways from the debate, including the government digging in on keeping the policy direction to the CRTC secret, acknowledging (perhaps inadvertently) that the bill does regulate user generated content, and several comments from MPs that promise outcomes that are simply not part of the bill.

Leading off during Question Period was a direct question to Prime Minister Justin Trudeau about releasing the planned policy directive to the CRTC before the bill receives royal assent so that Canadians can see the details of how the bill is intended to be implemented.

Mr. John Nater (Perth—Wellington, CPC):  Mr. Speaker, will the government commit to releasing its policy directive to the CRTC before voting on Bill C-11?

Right Hon. Justin Trudeau (Prime Minister, Lib.):  Mr. Speaker, we know how important it is to ensure that Canadian producers and Canadian creators of content resonate, not just across the country, but around the world. We have always had measures in Canada that promote Canadian music and content on Canadian TV and Canadian radio. That is something we have long had, to protect Canadian content creators. Unfortunately, once again, Conservative politicians stand against the arts community and creators. We believe in making sure Canadians can succeed around the world, and in a digital world, that is what we are doing.

Mr. John Nater (Perth—Wellington, CPC):  Mr. Speaker, if the Prime Minister is so proud of his approach, why does he not simply release the policy directive that he will be sending to the CRTC to implement this law? This “just trust us” approach does not inspire confidence in the Canadian people. The government is asking an entity that has neither the capacity nor the competence to regulate vast swaths of the Internet, but the government will not disclose how it will instruct it to do so. Canadians are rightly concerned about how this will impact what they see and hear online. Why is the government asking Parliament to give the CRTC more power over Canadians without telling Canadians what the CRTC will be doing with that power?

Right Hon. Justin Trudeau (Prime Minister, Lib.):  Mr. Speaker, in this country, the CRTC has always ensured that we promote Canadian creators creating Canadian content. That is what it has done on the radio waves for decades, ensuring that we have Canadian music played on radio stations. That is what it has done with TV, ensuring that Canadian content gets put on Canadian TV, not just as a way of telling our stories, but also as a way of encouraging creators and producers in Canada. In a digital world, we need to ensure, in the same way, that Canadian producers of content are protected and upheld, and that is exactly what Bill C-11 would do.

The Prime Minister’s answer is apparently “no” to releasing the policy directive. There is no prohibition on releasing the policy directive. In fact, the government did so with Bill C-10 with then-Canadian Heritage Minister Steven Guilbeault saying the government was acting transparently by releasing it in March 2021. It is not clear what has changed since then, but the government seems committed to keeping the details of Bill C-11 implementation secret until the bill becomes law.

Following question period, there was hours of debate. One of the most notable exchanges involved a question from NDP MP Don Davies and Liberal MP Ryan Turnbull on the implications of Section 4.2, which I’ve noted opens the door to regulating user generated content:

Mr. Don Davies (Vancouver Kingsway, NDP):  Mr. Speaker, the Liberals have repeatedly said that the bill regulates the platform, not content or users. However, proposed section 4.2 says that the CRTC can create regulations that treat content uploaded to social media services as programs to be regulated by considering three factors: one, whether the program that is uploaded might cause direct or indirect revenue generation; two, if the program has been broadcast by an undertaking that is either licensed or registered with the CRTC; and three, if the program has been assigned a unique identifier under a standard system. The law does not tell the CRTC how to weigh those factors, but the bottom line is that this might apply. Michael Geist has said, “TikTok videos that are uploaded to the service may generate indirect revenue. That content is available on licensed services and the music has a unique identifier. The same is true for many YouTube or Instagram videos.” What is my hon. colleague’s response to that concern that proposed section 4.2 does permit in at least certain circumstances the regulation of content?

Mr. Ryan Turnbull:  Mr. Speaker, my thanks to the hon. member for a good faith question. I appreciate it. The way I read the bill, and I have the section in front of me, is that this is how the bill defines commercial content and commercial content is part of how we define whether someone is broadcasting or not using a streaming service. In many ways, this is part of the definition of being able to determine whether Canadian content should be promoted. I think that is the intention of the bill, that broadcasters that are already promoting commercial content and distributing that are subject to the same regulations that other broadcasters are. That intention is very clearly laid out in the bill. It is very specifically and clearly not to regulate the user-generated content.

This was one of the few genuinely substantive exchanges and it’s important. While I appreciate Mr. Turnbull’s response, he’s effectively acknowledging that the bill does regulate commercial user generated content by mandating its discoverability. Digital first creators – who create commercial user generate content – have warned that applying discoverability rules to their content puts their livelihood at risk, since it is not even clear how they will be identified in Canada (thereby prioritizing other content) and potentially downgraded outside the country. The concern associated with the issue has been discussed for months, yet the government insists on claiming it isn’t regulating user content, while at the same time describing how that content will fall within the regulations.

The debate also featured interventions that suggest MPs do not understand what the bill will actually accomplish. For example, NDP MP Peter Julian asked “why does the member think the Conservatives are objecting so strenuously to having in place a situation where Canadian artists are actually remunerated effectively for their creations?” The better question is where in Bill C-11 does Mr. Julian think there is anything that addresses creator remuneration? There are no such provisions. At best, there is the potential mandate on platforms to provide funding to support Cancon creation. Those rules are unlikely to add much new money to the system, since the platforms already are among the biggest investors in productions in Canada and they will simply re-allocate some of that funding to meet the mandated payment requirements. Regardless, those rules do not address creator remuneration.

There was also this question from NDP MP Lori Idlout regarding the indigenous streaming service IsumaTV:

Uqaqtittiji, I was struck by a question the member asked, and here is my question for him: What is stopping Canadians from watching indigenous online streaming services like IsumaTV? The answer is, American streaming services like Netflix, Amazon Prime and Disney+. Does the member truly believe that without this bill Isuma will ever achieve the fair Canadian audiences it deserves?

Respectfully, how are Netflix or Disney+ stopping Canadians from watching IsumaTV? Those services may have larger audiences but they have no power to block or otherwise stop anyone from watching anything. Further, how does Ms. Idlout think Bill C-11 will change this? The discoverability rules apply to programs, not streaming services. There is no prospect of Netflix being required to promote a rival service on its system.

On top of that, Liberal MP Francis Scarpaleggia stated “the only thing Bill C-11 does, in reality, is require online distribution networks to offer a wider range of viewpoints and products and that ultimately, this will improve democracy here in Canada” (not quite: it does far more and it doesn’t require services to offer a wider range of viewpoints or products), Liberal MP Patrick Weiler attributed criticism of Bill C-11 to an organized campaign of misinformation and disinformation, and Liberal MP Ken Hardie maintained the CRTC was the best entity to regulate the Internet.

Finally, there was the issue of experts concerned with Bill C-11. I was cited a lot last night – 26 times – but there were multiple mentions of former CRTC Vice Chair Peter Menzies, Ryerson’s Irene Berkowitz, and Digital First Canada’s Scott Benzie. For example, after a comment regarding the repeated references to my research on the bill, CPC MP Glen Motz stated:

Mr. Speaker, I am never one to back down from a challenge. The member challenged us to find individuals who might have something to say against this bill, other than Dr. Geist. Andrew Coyne, the columnist for The Globe and Mail; Dr. Irene Berkowitz, senior policy fellow at Ryerson University; Matt Hatfield, campaigns director at OpenMedia; Peter Menzies, former CRTC chair; Monica Auer, the executive director of Forum for Research and Policy in Communications; Scott Benzie, managing director of Digital First Canada; Oorbee Roy, digital content creator, and actually a witness at the Canadian heritage committee; and Darcy Michael, at committee and a digital content creator as well, all spoke against it, as did Morghan Fortier, Skyship Entertainment for YouTube. Those are just a few that my friend across the way seems to have forgotten. Not only do Michael Geist, and we on this side of the House, oppose this bill, but millions of Canadians across this country oppose it, as well.

Incredibly, more than three hours later, Liberal MP Mark Gerretsen responded to some new references to those experts by stating:

Madam Speaker, I want to thank the member for referencing somebody other than Michael Geist. It took the Conservatives only until 11:35 p.m., 20 minutes before the debate is to be over, to do that.

Perhaps Mr. Gerretsen would prefer not to listen when Canadian digital first creators, former CRTC Vice-Chairs, and longstanding Canadian broadcasting experts such as Monica Auer and Irene Berkowitz are mentioned as having concerns with Bill C-11. But Canadians interested in broadcasting and Internet regulation should be paying attention.

6 Comments

  1. Wow so it’s not just a meme I made up myself that Mr Geist seems to be the only one who gets any press for opposing this? MPs actually think he’s literally the only person in the country who opposes this stuff?

    Back in the early 00’s I actually participated in Copyright Board proceedings when that absurd proposal to tax all digital media to ‘compensate’ for private music copying came up. Why am I not doing anything now? Well for one thing it just kinda came out of the blue, but also my impression actually attending meetings was that myself and one other guy were the only people fool enough to not be getting paid lawyer-level fees to be there!

    • I always found this aspect of the debate frustrating. There is a whole bunch of people of different political stripes opposed to this legislation (myself included). Yet, none of us exist in the eyes of some of these politician’s. I, myself, have written endlessly about these issues for good reason. The strategy, as you alluded to, seems to be to make the opposition seem small and isolated when, in fact, the opposition is much more broad then that.

      It’s funny that, to these same politician’s, anyone who opposes this legislation is just creating a massive misinformation campaign – that we are out here talking about these bills in the lights that we do with ill intent. If that was the case, to what end are we supposedly pushing false narratives in the first place? Are we doing this for sh*ts and giggles or something from their perspective?

      I can confidently say that I’m covering these issues because of the very real threats this bill represents to freedom of expression. My own YouTube channel could be demoted because I am not considered “Canadian enough” whether on the personnel side or on the content side. Lucky for me, I have my own site which can withstand an audience hit of no longer having access to video sharing platforms. Others, however, won’t be so lucky. Numerous Canadians have pretty much sunk their whole careers into YouTube or a variety of platforms that shares video, taking advantage of opportunities that otherwise would never exist. They all know everything they worked for could be wiped out because of Bill C-11. For those people, I have a great degree of empathy for and, by the nature of what I cover in the news, will be defending them by default. After all, I’m pretty much on the side of free speech and have been from the very beginning when I started writing news articles in 2005. Canadians all have very good reason to fight legislation like this and I can definitely say it isn’t because “lol I trolled you!!!elevenoneone”

  2. Our idiot PM’s responses reaffirm my believe that he is a bot. It doesn’t matter what he’s asked, he simply responses with one of his pre-programmed answers while trying to look earnest.

    • “he simply responses with one of his pre-programmed answers”. You are absolutely right.

      And as long as Canadians accept this and they still vote for the Liberal party, the voters will continue to suffer this self-serving, greedy and hypocritical government.

  3. My thumbnail impression of the legislation is that we will return to the glory days of Aol or Netscape, where you will pay a monthly fee to access the internet through a specified companies portal, and they will do the work for the government with their own installed algorithms. All I can say, is that finally breast cancer will be eradicated because you won’t be able to look it up on the internet.
    All of your searches, and any other of your internet habits will be held beyond your physical life by a private company, who will sell your info at will. The government will have access at any time, with no court involved, (that I can see), just a Hong Kong handshake between a company and a regulator. You should hope your ex doesn’t work for the CRTC .

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