Bill C-10 (Historical)

An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts

This enactment amends the Broadcasting Act to, among other things,
(a) add online undertakings — undertakings for the transmission or retransmission of programs over the Internet — as a distinct class of broadcasting undertakings;
(b) update the broadcasting policy for Canada set out in section 3 of that Act by, among other things, providing that the Canadian broadcasting system should serve the needs and interests of all Canadians — including Canadians from racialized communities and Canadians of diverse ethnocultural backgrounds — and should provide opportunities for Indigenous persons, programming that reflects Indigenous cultures and that is in Indigenous languages, and programming that is accessible without barriers to persons with disabilities;
(c) specify that the Canadian Radio-television and Telecommunications Commission (the “Commission”) must regulate and supervise the Canadian broadcasting system in a manner that
(i) takes into account the different characteristics of Indigenous language broadcasting and the different conditions under which broadcasting undertakings that provide Indigenous language programming operate,
(ii) is fair and equitable as between broadcasting undertakings providing similar services,
(iii) facilitates the provision of programs that are accessible without barriers to persons with disabilities, and
(iv) takes into account the variety of broadcasting undertakings to which that Act applies and avoids imposing obligations on a class of broadcasting undertakings if doing so will not contribute in a material manner to the implementation of the broadcasting policy;
(d) amend the procedure relating to the issuance by the Governor in Council of policy directions to the Commission;
(e) replace the Commission’s power to impose conditions on a licence with a power to make orders imposing conditions on the carrying on of broadcasting undertakings;
(f) provide the Commission with the power to require that persons carrying on broadcasting undertakings make expenditures to support the Canadian broadcasting system;
(g) authorize the Commission to provide information to the Minister responsible for that Act, the Chief Statistician of Canada and the Commissioner of Competition, and set out in that Act a process by which a person who submits certain types of information to the Commission may designate the information as confidential;
(h) amend the procedure by which the Governor in Council may, under section 28 of that Act, set aside a decision of the Commission to issue, amend or renew a licence or refer such a decision back to the Commission for reconsideration and hearing;
(i) specify that a person shall not carry on a broadcasting undertaking, other than an online undertaking, unless they do so in accordance with a licence or they are exempt from the requirement to hold a licence;
(j) harmonize the punishments for offences under Part II of that Act and clarify that a due diligence defence applies to the existing offences set out in that Act; and
(k) allow for the imposition of administrative monetary penalties for violations of certain provisions of that Act or of the Accessible Canada Act.
The enactment also makes related and consequential amendments to other Acts.

[Richard Stursberg, President, Aljess, As an Individual]

Good afternoon, everybody. Thank you for inviting me. It's a great pleasure to be here.

My name is Richard Stursberg. I am the author, with Stephen Armstrong, of The Tangled Garden: A Canadian Cultural Manifesto for the Digital Age. We were honoured to have our book shortlisted last year for the Donner Prize, which is given for the best book on public policy written by a Canadian. The book deals with many of the issues that are before you with Bill C-10.

I have worked in the broadcasting business for many years. I was the head of English services at the CBC, chairman of the Canadian Television Fund, executive director of Telefilm Canada, president of Shaw Direct, and CEO of the Canadian Cable Television Association. I am now retired and represent nobody but myself.

In the more distant past, I was the assistant deputy minister for culture and broadcasting. In 1990, I was one of the architects of the current Broadcasting Act, so it is a pleasure to have a chance to talk to you today about the new act.

I start from a simple premise. The reason we have a Broadcasting Act, along with the associate regulations of the CRTC, the tax credits and the Canadian Media Fund, is to support Canadian culture. We spend all this money and energy to ensure that Canadians can see themselves and their stories on television. The objectives of the system are cultural, not industrial or economic.

In approaching Bill C-10 today, I believe that the fundamental principles governing future broadcasting policy must be support for Canadian culture and equity of treatment. The latter point requires that the obligations imposed on Canadian broadcasters such as CTV and Global must be borne by foreign broadcasters such as Netflix and Amazon. By the same token, whatever advantages are enjoyed by Canadian broadcasters must be extended to the foreign ones operating in our country.

Today I would like to talk about the four key supports for Canadian television: Canadian ownership, the spending requirement, the system of subsidies and the definition of Canadian content.

First, under the present act, broadcasting companies operating in Canada must be owned and controlled by Canadians. There has been much talk about whether Bill C-10 eliminates this requirement. The legal issue is largely academic, since the requirement was ceded a decade ago. Over the last 10 years, foreign broadcasters like Netflix and Amazon have been offering TV programs to Canadians without any need to be Canadian-owned. There is no chance in the future that they will be forced to become Canadian-owned.

In the interest of equity, you may want to consider putting Canadian and foreign broadcasting on the same footing by amending Bill C-10 to make sure the Canadian ownership requirements are gone. Not to do so would be to disadvantage Canadian broadcasters in their own market.

SecondC-10, Canadian broadcasters have to spend a certain percentage of their gross revenues making and commissioning Canadian TV shows. Bill rightly extends this requirement to the foreign broadcasters and leaves it to the CRTC to determine the appropriate level. If the commission leaves it at 30% for CTV and Global, as it is now, it should be 30% for Netflix. If it is set at 20% for Netflix, it should be the same for Canadian broadcasters. Equity is key. You may want to make sure that the equity principle is clearly incorporated in Bill C-10.

Third, the system of subsidies for the production of Canadian shows is expensive and complicated. It consists of the Canadian Media Fund, federal and provincial tax credits, and Telefilm Canada. Last year, they collectively cost Canadian taxpayers over $1.2 billion. Those subsidies are only available for Canadian shows, defined as those made by Canadian-owned production companies and employing Canadians in key creative positions. If we require foreign broadcasters to spend 20% to 30% of their gross revenues commissioning Canadian shows, they should have access to the subsidy. Again, the principle of equity should prevail.

The subsidy system itself is fiendishly complicated and expensive to administer. The long-standing joke has been that Canadian producers are not experts in making shows but in navigating the system. There has been some talk of collapsing Telefilm Canada and the Canadian Media Fund into one organization to address the problem. That is not the best approach. It would be much better to wind up Telefilm Canada and the Canadian Media Fund and transfer their financial resources to an enhanced tax credit. This would create a system that would be dramatically simpler, more predictable, better attuned to changes in the market and much less expensive to administer. The Tangled Garden estimates that this approach would save $60 million per year in administrative costs.

You might want to consider amending Bill C-10 to make this change.

Fourth, and finally, all of these arrangements hinge on the definition of what constitutes “Canadian content”. For decades, Canadian content has been defined on the basis of a 10-point scale, where points are assigned to the creative talent involved in making the show. The problem is that as long as Canadians are employed, the show could be culturally completely foreign. It could be set in another country, featuring foreign characters and involving a foreign story. This has happened very often in the past. Toronto may be made to stand in for Chicago, while American characters struggle with losing their health insurance.

There has always been great pressure on Canadian producers to disguise the Canadian character of their shows so they can be sold in the States, making them more profitable and easier to finance.

[The Chair, Liberal, Scott Simms]

Welcome back, everyone.

This is our study of Bill C-10, now at the committee stage after succeeding through a second reading vote. Here we are with the study.

I'd like to point out one thing. During the question and answer session, please point out to whom you're directing your question. It will make things flow a lot easier.

To our guests, if you want to weigh in on a certain topic that's being asked about, you can use the “raise hand” function, if you wish, or wave your hand. The chair, meaning me, will not interrupt to provide you the opportunity. You will have to get the attention of the person asking the question.

Right now we're going to start with our five-minute opening statements.

We have with us Mr. Richard Stursberg. We have, from Corus Entertainment, Troy Reeb. We also have, from the Society of Composers, Authors and Music Publishers of Canada, Geneviève Côté and Martin Lavallée.

We're going to start with Mr. Stursberg, for up to five minutes.

Go ahead, please.

[Soraya Martinez Ferrada, Liberal, Hochelaga, QC]

Thank you, Mr. Chair.

These four minutes will go by in a flash with Senator Joyal, our guests his evening, and our witnesses.

Mr. Joyal, I'd like to return to the issue of demographic decline. Could you tell us more about this?

Before handing over to you, however, I'd like to make a brief comment about your proposals on bill C-10, the francophonie and discoverability.

I'd like to remind my colleagues and the people listening to us that the government took Canada to UNESCO and provided funding for cultural diversity in 2018. It was when my colleague Ms. Joly was in Paris that we addressed digital issues. I know that these discussions have been progressing for three years now. You might even speak about it to our colleague, Minister of Canadian heritage Mr. Guilbeault. There were in fact many international discussions and you are right to say that that is the right direction to take.

Nevertheless, there is an extremely major challenge in terms of francization and immigration. Would you agree that if we focused solely on language of work without doing anything about francization and immigration, and without encouraging immigration corridors within and outside Quebec, the demographic weight of French would decrease in North America?

What's missing is the francization process and the immigration corridors.

You spoke about teachers, but are there other things to mention?

[Serge Joyal]

No. They clearly are not.

Canada needs to take an initiative in concert with the government of Quebec, as it did in 2005 when it negotiated the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Canada, together with Quebec and the other member countries of the francophonie and the European Union, must negotiate a new treaty to enhance the discoverability of French works on the platforms.

Canada did it in 2005. Why would it not? Why would bill C-10 not make it a government obligation? I read the bill and I'm still waiting for "a bigger splash".

[Alexandre Boulerice, NDP, Rosemont—La Petite-Patrie, QC]

There's one minute left, senator.

You mentioned one very important aspect, which is the discoverability of francophone content on the major platforms of the web giants. During this pandemic, we've been able to see just how central they are to our lives.

According to you, are the measures provided for in bill C-10 adequate for the time being?

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

I'm going to go back to Mr. Wente, if I could.

This committee has heard from a number of different organizations, including members from the APTN, who spoke about their concerns with Bill C-10. I also think that Bill C-10 needs to be stronger.

I'm curious as to whether you could point out what exactly you like about this bill. You spoke of the importance of storytelling and broadcasting legislation that ensures our stories reflect the diverse stories and voices of our country. How do you think this bill will ensure that first nations, Métis and Inuit stories are heard?

[Gabriel Pelletier]

The Copyright Act has a similar mechanism. We are aware that reviews of that kind are difficult and complex.

The world is changing so quickly. Bill C-10 is already playing catch-up. It is really urgent to act. That has been said over and over again. So it is a good idea to review—

[Scott Aitchison, Conservative, Parry Sound—Muskoka, ON]

Thank you, Mr. Chair. I'm excited that we got to round two.

I'm excited to chat with Ms. Creighton again. I had a great visit with her. As for Jesse Wente, I'm a huge fan, so I'm a little star-struck right now. Please don't be offended.

My first question is for Ms. Creighton.

I've been reading through the Broadcasting Act at 20 different meetings or more, I guess, with different groups. I've been collating all the suggested amendments to the Broadcasting Act in Bill C-10 and trying to understand it. Of course, our objective, as so many have said, is to make sure that our stories are told and that Canadians can access those stories. We obviously need to make improvements in terms of which Canadians are telling those stories. We want to make sure that all Canadians are.

My fear, of course, is that I wonder if what we've done here with Bill C-10 is to slightly regulate the online streamers, while keeping our fairly strict regulations on traditional broadcast media—the BDUs. I wonder if that isn't in fact really the beginning of the end as we transition away from this technology. Is traditional media in this country dead or dying?

[Heather McPherson, NDP, Edmonton Strathcona, AB]

I don't have very much time left. Maybe on my second round, I'll come back to touch on this further, but, Mr. Wente, I have a quick question.

Do you feel, in the development of Bill C-10, there was adequate consultation with first nations, Métis and Inuit peoples?

[Heather McPherson, NDP, Edmonton Strathcona, AB]

I'll ask some questions about the content industry, and how it's been affected by COVID-19. There are, obviously, encouraging signs in my home province of Alberta, as production comes back with health and safety protocols in place.

What impacts has COVID-19 had on the production industry? What does that mean for our consideration of Bill C-10?

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

Thank you to all our witnesses for being here today. It's an important conversation, as we try very hard to make sure Bill C-10, as legislation, is as strong as it possibly can be.

It's lovely to see you, Ms. Creighton. As somebody who is also in the Prairies and dealing with the deep freeze to the balmy weather, I hope I also can manage that swift change.

You referred to a number of recent shows in your remarks, such as Schitt's Creek, which of course we all love, as an “unprecedented success” in showcasing Canadian stories and talent to the world through shows made in Canada by producers, broadcasters and the CMF. I'm wondering what in the current system contributed to that success, and how Bill C-10 is responsive to that. Otherwise put, how can we make sure that Bill C-10 builds on what we've done properly, with this unprecedented success, and that we don't unintentionally hinder that success?

[Gabriel Pelletier]

We feel that Bill C-10 opens the door too wide and gives too much flexibility to foreign platforms in particular. The current version of the act has an objective of using Canadian talent predominantly. We would like that to be included in the bill.

By giving too much flexibility to the foreign platforms, we are afraid that they will not use our local talent, that they will have fewer obligations in that regard, and they will make do with a simple financial contribution. The important thing for us is to have our creators, actors, writers and producers working. Basically, we want Canadian talent to be used. We want to see that put back into the amended version of the act.

[Alain Rayes, Conservative, Richmond—Arthabaska, QC]

Thank you, Mr. Chair.

Ms. Ien, I'm sorry for interrupting you. I didn't mean to be rude.

First, my thanks to all the witnesses for joining us today.

My questions are mainly for the representatives from the Association des réalisateurs et réalisatrices du Québec. I will let my colleagues from all parties ask all the other witnesses questions, and I'm sure they will.

Mr. Pelletier and Ms. Cyr, I had the opportunity to speak with you before this meeting. You shared with me many of your concerns about Bill C-10. I think everyone agrees that we need a bill, and we all want it to be the best possible, but there are a number of shortcomings. You pointed out two in particular, and we talked about them at our meeting.

You presented some extremely worrisome data on Canadian creative resources, both francophone—I assume they are also from Quebec—and anglophone. They show a decline year after year. I would like to hear your comments on that.

I would also like you to address the whole issue of the French language. Just last Friday, the Minister of Official Languages announced, in the reform document she tabled, that she wanted the broadcasting sector to take into account the concern about the decline of the French language. However, the bill seems to make no mention of the need to protect French-language content. It seems that the two departments have not spoken to each other, and here we are discussing Bill C-10.

Have I understood your concerns properly? Is my analysis of the situation correct? If so, what would you recommend?

[Jesse Wente, Executive Director, Indigenous Screen Office]

Thank you so much.

I am grateful for the opportunity to speak on behalf of the Indigenous Screen Office and the first nations, Métis and Inuit storytellers we serve.

As I'm sure you all know, the Indigenous Screen Office was announced by this government in 2017, after years of advocacy for such an agency to exist. We serve first nations, Inuit and Métis storytellers within the Canadian screen sector, and seek greater opportunity and greater measures of self-determination for our communities within the screen storytelling industry.

As a long-sought and only newly created organization, for us the opening of the broadcasting and telecommunications act presents our first opportunity to advocate for legislative change that could affect our communities and our storytellers. We are pleased to see that our comments are represented within Bill C-10. The changes in language and elimination of qualifiers around the need for first nations, Métis and Inuit programming and broadcasting to be represented within the Canadian broadcast sector are welcome and long overdue. We believe the stories of first nations, Métis and Inuit are as central to the Canadian story as those of French and English, and as such should be treated the same way within this legislation.

As this bill ensures the creation of Canadian broadcasting and the dissemination of Canadian content, it should also ensure support for first nations, Métis and Inuit content and broadcast initiatives. We ask that the language within the law be specific. “Indigenous” is a catch-all term. While it is one that we use to describe the totality of our communities, we feel that this law should specifically define indigenous to mean first nations, Inuit and Métis.

We also want to ensure that the bill provides the space not just for first nations, Métis and Inuit content but also for broadcast undertakings. This bill should, as much as possible, protect itself from future technological advancements and allow for the possibility of new broadcasting technologies to emerge, and for these to be potentially utilized by indigenous storytellers and broadcasters.

In addition to these key points, I would really like to ask today that you consider the true nature of this legislation. Having listened today, I am confident that you have heard much about the need to modernize this law to better reflect the broadcasting and telecommunications environment of today.

I'm confident that you have heard much about the evolution of broadcasting and transmission technologies, and how this legislation must capture that modern state of broadcasting, inclusive of technologies that have emerged since the last time this legislation was amended. I'm confident that you've heard about the importance of onboarding massive foreign media networks into this legislation to better reflect the modes of consumption and creation that Canadian audiences and storytellers are currently engaged in. I'm confident that you've heard the need to have these networks meaningfully contribute to our sector here. I'm confident that you've heard about the need for better data collection and aggregation so that our sector may more easily and rapidly adapt to the evolving broadcasting and telecommunications environment.

These are all important things, and I know that you will be considering all of them. The ISO supports the way this bill approaches the definition of broadcasting and its meaning today.

What I would like to leave you with is this. As much as this legislation is about all of those things, its central purpose has always been, and remains, storytelling. As much as this bill addresses the changes in storytelling—its creation and transmission and consumption—the true revolution in storytelling is not about technology or broadcast systems or Internet-based streaming services. The revolution in storytelling is not about new forms of storytelling or new platforms for storytelling. The revolution in storytelling that this bill must ultimately address is not about the what or the where or the when of the storytelling. It is the who. Who is telling the stories we will watch, no matter where or how or when we will watch them?

It is the who. For too long, the who of Canadian storytelling has been too limited. As a result, the Canadian story and the stories Canadians tell each other have been incomplete. They have been incomplete to our shared detriment. These gaps in storytelling have contributed to gaps in policy, gaps in equality, gaps in understanding and indeed gaps in humanity.

The bill must ensure the stories that are broadcast, the stories that it is meant to ensure, don't just take place in a modern broadcasting and telecommunications regulatory framework, but that these stories come from what has always been the modern Canada—a multinational place with a deep history still largely unexplored and a rich and diverse future that will be created through right relations between communities and a sharing of our stories.

I ask that you pass this bill so that our stories may flourish and so that they may dance together.

Meegwetch for this opportunity.

[Valerie Creighton, President and Chief Executive Officer, Canada Media Fund]

Thank you very much, Mr. Chair, and thank you to the members of the committee.

I'm Valerie Creighton. As the chair mentioned, Nathalie Clermont, our vice-president of programs and business development, is also on the line.

Your work on Bill C-10 is absolutely critical. It will shape the rules of the road for broadcasting in Canada, as well as how TV, film and digital media content is made, who sees it and whose stories are told.

Canada's television and digital media production industry has grown every year for the past 10 years. It creates thousands of jobs from coast to coast to coast, in cities and in towns—181,000 jobs in 2019 alone. Heartland, filmed in southern Alberta, generated 4,500 jobs and $460 million in economic activity over 10 seasons.

The content industry attracts investment in Canada by streamers, foreign production companies and foreign broadcasters. Jusqu'au déclin, or The Decline, a Quebec-led French-language feature commissioned by Netflix, has been seen by 21 million people.

Our industry showcases Canadian stories and talent to the world and we are on top of our game in that regard. Radio-Canada's C'est comme ça que je t'aime was the first and only television project invited to screen at the 2019 Berlin film festival. Diggstown, a Black-led Halifax production, was recently purchased by Fox for U.S. distribution. CTV's Transplant recently sold to NBC and was hailed by The New York Times as the best drama on television. As well, of course, Schitt's Creek won nine Emmys and recently received five Golden Globe nominations. This is unprecedented success, and these shows were made in Canada by producers, broadcasters and the CMF.

CMF is the largest screen content fund in the country. We provide approximately $350 million to independent producers and digital media companies annually. Our revenue comes from two main sources: 43% from the federal government, and 52% in contributions from the broadcast distribution undertakings, the BDUs, in a regulated percentage of revenues only from cable, satellite and direct-to-home subscriptions. When the CMF was created 10 years ago, the model was one-third government funding and two-thirds BDU. Today, the BDU contributions are declining as Canadians cut their cable cords or don't subscribe at all. As a result, the CMF's revenue from the BDUs declines every year.

In discussions around Bill C-10, it has been said that streamers like Netflix should contribute to the CMF like Canadian broadcasters do. However, to be clear, broadcasters do not contribute to the CMF. It's the BDUs such as Shaw, Rogers, Bell and Videotron that contribute, and their broadcaster assets are the ones that benefit. For example, this year Videotron contributed $22.3 million to the CMF. Its broadcast asset, TVA, triggered $25.2 million in CMF funding towards the financing structures of their projects.

Every dollar the CMF invests in production leverages four dollars, so this is not the time to lose that economic impact or stifle the creative growth of this industry.

How does all of this affect Bill C-10? In our view, it's in every way possible. We need modernized legislation, regulation and a modernized CMF to deliver programs in today's environment. Our system has become archaic. The orderly marketplace is a thing of the past, but the creative and economic potential for Canadian content has never been greater. Bill C-10 is a critical step to unlock change.

The CMF supports Bill C-10, but the bill and the CRTC direction requires clear language that prioritizes growth in direct investment in Canadian content production in English and French, Canadian ownership of intellectual property, a platform-agnostic approach to domestic and international content distribution, and indigenous content and content from under-represented groups, as proposed by the Indigenous Screen Office and the Racial Equity Media Collective.

We need to bring to this work a mindset of expansion, not contraction, for our stories, our creators and our industry to leverage the investment to date. With the right legislative language, we can achieve the phenomenal levels of success available to us in this new future.

Thank you, Mr. Chair and members of the committee.