The first post in my series on Bill C-11 focused on the risks associated with regulating user content. But it isn’t just ordinary users posting on services such as TikTok or Youtube that could find their content subject to regulation. The bill is ostensibly designed to support Canadian creators, yet many fear it will do the opposite. For the independent production sector, there was a late change to the bill as part of the government’s rush to pass it without committee debate that could undermine an essential policy that supports the film and television sector. And for digital creators, there are justifiable fears the bill will result in less revenue, less global exposure, and lost opportunities for one of Canada’s fastest growing cultural sectors.

The independent production sector issue has not attracted much attention, in part because it was snuck into the bill during a process where the government effectively cut off debate or discussion as it rushed debate on over 150 proposed amendments. But as Douglas Barrett noted, the bill changed the policy direction with respect to the independent production sector, going from:

(i) the programming provided by the Canadian broadcasting system should
(v) include a significant contribution from the Canadian independent production sector

to the following:

(i) the programming provided by the Canadian broadcasting system should
(v) include the greatest possible contribution from the Canadian production sector, whether it is independent or affiliated with or owned by a broadcasting undertaking

The effect is a big win for companies such as Bell and Videotron, since independent production is significantly devalued given the equalization for broadcast-owned production. While this sounds like an insider issue, the implications could be enormous for the very sector the government claims to want to support.

The situation is even more dire for digital first creators. At the heart of this issue is the discoverability provision, which grants the CRTC the power to establish discoverability requirements as a condition on Internet services. The origins of this provision lies in the 2020 Broadcast and Telecommunications Legislative Review (BTLR) Panel report, which placed considerable emphasis on the need to support the “discoverability” of Canadian content:

The CRTC must also be able to impose discoverability measures on media content companies. Consumers now have access to an endless choice of content, making it difficult to find, or simply recognize, Canadian content. In fact, a majority of consumers have said that they have difficulty finding content they want to watch. Further, algorithms and AI-based processes have a major influence on program recommendations with a consequent influence on the discoverability of content.

While the notion has found considerable support from both the government and opposition parties that often cite it as a key rationale for Bill C-11, the reality is that there is little evidence that there is actually a problem. The BTLR report contains two footnotes that point to two reports as the basis for its recommendation: a 2017 Price Waterhouse Cooper report called How Tech Will Transform Content Discovery and a 2016 report from Telefilm Canada titled Discoverability: Toward a Common Frame of Reference Part 2: The Audience Journey.

The Price Waterhouse Coopers report involved a survey of 1,000 U.S. residents, had nothing to do with Canada, and said absolutely nothing about the ability to find or recognize Canadian content. The Telefilm Canada report was focused on Canada but did not find that Canadians have trouble finding Canadian content. Rather, it found a range of experiences and emphasized that “word-of-mouth is Canadians’ main discoverability method.”

But the issue with services such as Youtube and TikTok is not just that there is scant evidence of the need for CRTC regulation on discoverability. It is that the CRTC-mandated discoverability is likely to harm Canadian creators. How could establishing CRTC mandated discoverability requirements for platforms such as Youtube, TikTok or Twitch harm Canadian creators?

First, assuming they are covered by the bill, it is not at all clear how Canadian digital first creators will even be identified in order to be prioritized. The certified Canadian content rules are not only flawed (often excluding Canadian stories but including co-productions with scarce connection to Canada), but geared toward well-established productions that fall outside the digital first world. This is not uncommon as no country in the world seeks to regulate Youtube videos, TikTok clips, or Twitch streams as cultural broadcasts subject to domestic content rules. The platforms do not collect the relevant information and there are no obvious standards to apply.

This raises both privacy concerns – effectively requiring platforms to gather more data – and implementation questions: is a Canadian Youtuber living in Los Angeles Canadian for discoverability purposes? Does a TikToker from France visiting Montreal qualify as Canadian content? Is a Twitch streamer in Vancouver that streams together with a gamer in Japan Canadian content? How about a podcaster that is based in Mexico but uses a Toronto production and hosting company?

Given that there are no obvious answers to any of these questions, it is entirely possible that none of this content will count for discoverability purposes. Instead, other content that neatly ticks the right boxes will receive prioritization. The impact will be incredibly damaging to digital first creators, who may find their content effectively de-prioritized in their own country based on Canadian legislation as implemented by the CRTC.

Second, the global effects on Canadian content more broadly will be even more damaging. Proponents of discoverability want the platforms to tweak their algorithms to prioritize Canadian content, an approach confirmed by the CRTC chair. However, this is approach misunderstands how algorithmic choices work, leading to a likely de-prioritization of the content worldwide. In other words, Bill C-11 trades prioritizing Canadian content for a market of 38 million people for de-prioritizing that same content for a global market that runs into the billions of viewers.

Simply put, the algorithmic choices on services such as Youtube and TikTok are based on numerous data points. For example, for each page featuring a dozen possible videos to click on, Youtube will record not only which video is viewed, but which are not. The more a video is displayed but not watched, the stronger the signal that the content is not interesting to Youtube users. With Bill C-11 discoverability requirements, there will be an increase in the number of Canadian videos that are displayed to Canadian users. Given that these recommendations are based on regulations rather than user interest, they are very likely to achieve much lower click-through rates than most other content. Those videos will continue to be displayed in Canada given the CRTC regulations, but outside Canada they will get less exposure since the algorithm will discern that the content is not of interest to most users. This could have a devastating impact on Canadian digital first creators, many of whom generate the majority of their revenues outside the country. Bill C-11 purports to help these creators, but many have warned that the provisions as currently structured will do the opposite.