SOCAN, a leading Canadian music copyright collective, has launched a misinformation campaign seeking to convince the government to reject a Bill C-11 Senate-backed amendment designed to ensure that the bill covers sound recordings but excludes user content from CRTC regulation. SOCAN has written to all MPs arguing that the amendment should be rejected on the grounds that it could hamper the regulation of “future online services, whose model for delivery of content is not yet known.” In other words, its primary argument is not that the amendment harms its interests today, but rather it is possible that it might restrict some unknown future application. Given its inability to identify a current problem with the amendment, the SOCAN campaign actually serves to confirm that it is consistent with the government’s objectives.
SOCAN’s argument on Bill C-11 states:
Bill C-11 must remain broad so that it can adapt to future online services, whose models for delivering content are not yet known. A bill that is tailored only to services in operation today will not be flexible enough for the future of broadcasting online. The amendment to clause 4.2 jeopardizes this flexibility. We need Parliamentarians to reject this amendment.
The SOCAN position is not only legally wrong, but shameful in that even with the most charitable interpretation, it would side with harming thousands of Canadian creators to avoid the possibility that some future, unknown service could fall outside the regulatory scope of the bill. With Canadian creators facing real harm today under Bill C-11, even if SOCAN was right, this is a trade-off that no government should make. SOCAN should be ashamed to have brazenly tossed independent Senators and thousands of creators – including indigenous creators and some members of SOCAN – under the legislative bus.
The amendment in question, which passed easily in the Senate, was crafted by Senators Simons and Miville-Duchêne in response to overwhelming testimony that without a fix to Bill C-11, the bill would cover user content and the regulatory framework could result in real harm. The amendment established a new Section 4.2.2, which states:
(2) In making regulations under subsection (1), the Commission shall consider the following matters:
(a) the extent to which a program contains a sound recording that has been assigned a unique identifier under an international standards system;
(b) the fact that the program has been uploaded to an online undertaking that provides a social media service by the owner or the exclusive licensee of the copyright in the sound recording, or an agent of the owner
(c) the fact that the program or a significant part of it has been broadcast by a broadcasting undertaking that
(i) is required to be carried on under a licence, or
(ii) is required to be registered with the Commission but does not provide a social media service.
The goal of the amendment is to narrow the CRTC’s regulatory power to sound recordings uploaded to user content platforms and scope out other forms of user content, consistent with the government’s oft-repeated use case that a song that appears on both Youtube and Spotify should be treated in the same manner. Simons indicated the amendment was developed in consultation with TikTok, Youtube, and Quebec independent music producers.
While there are still some risks for digital creators in how the CRTC interprets the provision, the objective is quite clearly to meet the government’s goal of maintaining regulatory powers over sound recordings uploaded to Youtube alongside its stated intent of excluding user content from regulation. Given SOCAN’s focus on some future unknown services, it is apparent that the provision covers SOCAN’s interests. The amendment is broadly defined with few evident restrictions other than being limited to social media services, which is undefined in the bill and will fall to the CRTC to determine. SOCAN’s concerns about potential new services or unexpected CRTC interpretations is something that all stakeholders face and it is well-equipped to bring its concerns to the Commission in open hearings.
Canadian Heritage Minister Pablo Rodriguez has suggested that the government may reject material amendments from the Senate, though the user content amendment is consistent with his stated goals for the legislation. If the government rejects the amendment on SOCAN’s flimsy grounds, the harm to both digital creators and the Senate would be immense. For digital creators, it would mean that mountains of evidence would be rejected based on nothing more than speculation that there might be some future unknown service that would fall outside of this provision. Further, it would send an unmistakable message that regulating user content is the goal of the legislation and that the government is untroubled by the demonstrable harms to Canadian digital creators.
The message to the Senate would be equally alarming. Rodriguez was asked last week about the democratic implications of rejecting amendments after the Senate conducted what he described as the most extensive review of a bill in Senate history. Rodriguez laughed off the question (“ah, democracy”), but this is no laughing matter. The government has claimed that it has tried to reduce partisanship from the Senate with more Senator independence and the chance for a greater contribution to the legislative process. To reject even well considered amendments from independent Senators that were overwhelming approved by Senate Liberals in the final Bill C-11 Senate vote, does indeed have democratic governance implications since it suggests that the government is not interested in the so-called sober, second thought and that it will simply ignore the Senate’s work. Should it do so, the reverberations will extend even beyond the troubling implications of regulating user content to the very functioning of the Canadian legislative process.