Bill C-11

Online Streaming Act

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) specify that the Act does not apply in respect of programs uploaded to an online undertaking that provides a social media service by a user of the service, unless the programs are prescribed by regulation;
(c) update the broadcasting policy for Canada set out in section 3 of the Act by, among other things, providing that the Canadian broadcasting system should
(i) serve the needs and interests of all Canadians, including Canadians from Black or other racialized communities and Canadians of diverse ethnocultural backgrounds, socio-economic statuses, abilities and disabilities, sexual orientations, gender identities and expressions, and ages, and
(ii) provide opportunities to Indigenous persons, programming that reflects Indigenous cultures and that is in Indigenous languages, and programming that is accessible without barriers to persons with disabilities;
(d) enhance the vitality of official language minority communities in Canada and foster the full recognition and use of both English and French in Canadian society, including by supporting the production and broadcasting of original programs in both languages;
(e) 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 English, French and Indigenous language broadcasting and the different conditions under which broadcasting undertakings that provide English, French or Indigenous language programming operate,
(ii) takes into account, among other things, the nature and diversity of the services provided by broadcasting undertakings,
(iii) ensures that any broadcasting undertaking that cannot make maximum or predominant use of Canadian creative and other human resources in the creation, production and presentation of programming contributes to those Canadian resources in an equitable manner,
(iv) promotes innovation and is readily adaptable toscientific and technological change,
(v) facilitates the provision to Canadians of Canadian programs in both official languages, including those created and produced by official language minority communities in Canada, as well as Canadian programs in Indigenous languages,
(vi) facilitates the provision of programs that are accessible without barriers to persons with disabilities,
(vii) facilitates the provision to Canadians of programs created and produced by members of Black or other racialized communities,
(viii) protects the privacy of individuals who aremembers of the audience of programs broadcast, and
(ix) takes into account the variety of broadcasting undertakings to which the Act applies and avoids imposing obligations on any class of broadcasting undertakings if that imposition will not contribute in a material manner to the implementation of the broadcasting policy;
(f) amend the procedure relating to the issuance by the Governor in Council of policy directions to the Commission;
(g) 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;
(h) provide the Commission with the power to require that persons carrying on broadcasting undertakings make expenditures to support the Canadian broadcasting system;
(i) 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;
(j) 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;
(k) 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;
(l) 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
(m) 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.

[Alain Saulnier, Author and Retired Professor of Communication from Université de Montréal, As an Individual]

Good afternoon.

I taught journalism, particularly investigative journalism, at the Université de Montréal for about 10 years. That's when I became particularly interested in the relationship the media and culture have with the Internet giants. My acquired expertise led me to publish a book in February whose title is Les barbares numériques: résister à l'invasion des GAFAM.

I also spent time as the director of information at Radio-Canada. From 1992 to 1997, I was the president of the Fédération professionnelle des journalistes du Québec. More recently, from 2017 to 2019, I co‑chaired Culture Montréal's Commission permanente Montréal numérique.

I said that I was particularly interested in the relationship the media and culture have with the Internet giants, most of which are American, and which I call barbaric.

Here is a quote from my book:

The history of the Western world will record that it was the most important conquest of the 21st century. What am I talking about? The conquest of the digital world and our lands by American superpowers. In fact, it was the most crushing attack on national sovereignty ever experienced by states in the new millennium.

That's why I believe that states and their institutions need to take appropriate measures to protect their media and their culture. In my brief, I place more of an emphasis on the protection of our francophone language and culture. The problem is that I don't think we've understood that for us, francophones, this invasion of our territory by the Internet giants has marginalized our media, our language and our culture. We must never forget that these superpowers are largely American. It's an invasion that has to be resisted.

I believe that Bill C‑11 is one way of accomplishing that. Additional measures will, I hope, be introduced. The CRTC could also address the various aspects of implementing this act. In any event, it's one way of regulating the cohabitation between American Internet giants and us. It's essential to place foreign digital companies and Canadian digital companies on an equal footing.

Giving the CRTC the power to regulate all digital activity pertaining to culture and communications could promote a healthy form of cohabitation between the Internet giants, on the one hand, and our own companies, creators and people, on the other.

Requiring superpowers to reinject a significant share of their revenues here, in creation and production by people from here, is one way of supporting our cultural milieu and our media. That would be the best way to counter the American content that dominates these platforms.

Protecting our cultural sovereignty is what it's all about. Doing nothing amounts to total laissez-faire. Playing the game with those rules would give us nothing. Doing nothing amounts to allowing these Internet giants and their marketplace laws to dictate for us what's good and what's bad. As we have been able to see, they have failed in terms of self-discipline in performing the role of major content regulatory bodies. False information has piled up, particularly over the past two years. And all the while, they have generated record profits.

In Canada, we have always been able to respond when American corporations have attempted to invade our territory with their cultural content. That's why the Canadian Broadcasting Corporation was established in 1936, and why the CRTC was entrusted with the power to regulate communications. Similarly, the government introduced television in 1952 to counter American television when Americans treated Canada as part of their market.

In 1997, the CRTC unfortunately missed the boat when it decided not to regulate the Internet so that it could foster its growth. Well, the growth has happened, and that's the best I can say about it. These days, people under 35 years of age live strictly through the social networks and platforms operated by these American Internet giants. They obtain information through social networks, which weakens our own media. Their main source of music is now YouTube. A little earlier, Mr. Jérôme Payette pointed out that Quebec's market share was only 8% for those among the 10,000 most popular performers. How can you have a career in music when a single play on YouTube earns the songwriter only half a cent.

There is another source of concern. For the first time in our history, traditional television is being outpaced by streaming platforms like Netflix, Amazon and Disney+. According to the Media Technology Monitor, 70% of anglophones and 58% of francophones in Canada have a Netflix subscription. That's how people watch television series and movies now.

So today, we need to go through the same exercise again. The Internet giants want to establish their own ground rules and are challenging ours.

As we heard, they are lobbying heavily and fighting against state efforts to establish a healthy form of cohabitation between them and us. That's why we need to act now. Bill C‑11 is a first step in that direction.

As I wrote in my book, it's late, but it's not too late.

Thank you for your attention.

[Dr. Irene Berkowitz, Senior Policy Fellow, Audience Lab, The Creative School, Toronto Metropolitan University, As an Individual]

Hi, and thank you for inviting me. I am appearing as an individual, not on behalf of the Toronto Metropolitan University.

I've been writing publicly on issues relating to Bill C-11 since 2014, when I testified at “Let's Talk TV”.

Bill C-11 to me is not the visionary legislation we deserve. Its story could have been how a small nation of 37 million will engage a global audience of seven billion. As one of few researchers to table original data on new and legacy content, I'm deeply concerned that C-11 will chill Canadian media innovation.

Today, I'll share data from Watchtime Canada, the YouTube study I led, and my book Mediaucracy, which is on legacy media. To be clear, Bill C-11 does not support Canadian storytelling. It supports old ways that define and distribute our stories.

As you heard this morning, Bill C-11 needs clear, decisive amendments. Politicizing this process hurts all Canadians, because we all benefit from a strong media sector, and so does our tax base. Our media is our face to the world.

Our Liberal Prime Minister Justin Trudeau asserted in 2016 that Canada would be known for resourcefulness, not resources. Just this month, this May, Trudeau announced a $3.6-billion auto sector investment that will make Canada a global leader in electric vehicles, innovations that he said will create hundreds of jobs.

Without public investment, YouTube, costing more than $6 billion annually at no cost to Canada, created more than 160,000 Canadian entrepreneurs and 30,000 jobs. Make no mistake; as you've heard today, working YouTube, TikTok or Instagram is gruelling. We found that 60% of eligible channels on YouTube earned less than $10,000, and 9% did earn more than $100,000, but it's 100% risk—no free ride.

Yet in open global competition for audiences, Canadians are winning. They're YouTube's number one exporters, with 90% of views outside of Canada, diverse without quotas and enhancing the soft power of our values around the world.

YouTube has empowered local Canadians of every race, ethnicity, ability and gender to engage global audiences. French Canadian YouTubers include this year's Juno nominee singer Charlotte Cardin, Chef Carl is Cooking, beauty artist Cynthia Dulude and Radio-Canada journalist PL Cloutier.

Bill C-11's wrong turn starts with the notion that CRTC has jurisdiction over the whole internet for two reasons. The first is scale. Consider the math. On YouTube alone, 500 hours of content is uploaded per minute, which is 12,000 a day, 150,000 a week. Then add TikTok and other platforms. YouTube does know what's uploaded in Canada; it just doesn't know if the uploaders are Canadian or their team. They don't know if Canadians are uploading from any other place on earth, say, a Buffalo Airbnb, or a VPN. Shoving the new into the old instantly gets absurd.

Second, new media is a feature, not a bug. It's additive innovation. The open Internet paved our way to electric cars, mRNA vaccines and more. Why mess with the earnings of self-starters who never asked a penny from the public purse? If user-generated content, why not video games and reality TV? These are two genres that are healthy because they are market-driven. Bill C-11 gets it backwards. Instead of positioning new media as a model to engage audiences, it ensnares new media in the epic fail part of our old media: disregard for audiences.

Amendments to narrow scope and clearly delete user-generated content would have multiple benefits of quelling concerns about free speech, discoverability—at least for UGC—and the 1950s-style rule-making authorities. The result would focus CRTC on what it does urgently owe legacy media: producer-accessed, platform—agnostic funding.

As a researcher who believes in data-based, goal-driven policy, I ask this: What is C-11's goal? I get that Liberals have the power to pass Bill C-11 as it's written, yet if they do, I suspect challenges will long delay the urgent work and promised windfalls, as you heard this morning.

I'll close with the words by a legacy media CEO who recently sent me an email about Bill C-11. It's short. Here it is: “The industry is shooting itself in the foot.”

Thank you for your time. I'm truly honoured to be here, and I look forward to your questions.

[Jérôme Payette]

No, I don't believe they do.

The CRTC hasn't done anything for the past 20 years. We've been consulted since 2016 on the modernization of the act. At the time, it was within the “Creative Canada” policy framework. After that, if memory serves me, there was a CRTC report, followed by the report from the group of experts on the Yale review panel. Then there was Bill C‑10.

We are now studying Bill C‑11. This will be followed by a period during which the CRTC will gather information, which is the usual way of proceeding. It will really take the time required to properly understand what's going on and take established objectives into account. That will lead to the creation of regulations.

It's therefore still going to take quite a while for this to reach people in the field, the entrepreneurs I represent and the artists they work with. We don't have time to wait much longer. Bill C‑11 has to be adopted and the CRTC has to remain flexible.

I don't know how much speaking time I have left, but I could say more about Ms. Fortier's comments, if you don't mind.

[Ted Falk]

Okay. Thank you for that and thank you for your testimony.

Mr. Geist, you've written on Bill C-11, just as you did previously on Bill C-10. Can you articulate what you believe the government's objectives are and also how they should have drafted the bill to achieve those?

[Michael Coteau, Don Valley East, Lib.]

Thank you very much, Chair.

Thank you to all our witnesses for joining us today. It's been a very valuable conversation. Thank you so much.

My question is for Mr. Danks from OUTtv.

You mentioned that a shift has taken place in the distribution system in Canada. We've heard from people in the past that there's been a loss of control over what people are seeing and also the control of rights, of content. You mentioned that Bill C-11 would be an important tool to help ensure some equity within the system when it comes to distribution.

Can you talk about the equity piece to this and how putting in place a piece of legislation like this will help ensure there's greater equity within the distribution system in this country?

[Tim Uppal]

Thank you.

Ms. Fortier, you have one of the most successful YouTube channels in Canada. It's really a Canadian content creator's dream situation. If Bill C-11 is passed and enters into law in its current form, how would it impact your business and other businesses like that, or businesses that are striving to be like your business?

[Jérôme Payette]

To answer your question, I'm not really sure of the definition of that term. Based on the one I've been given, they're creators who depend on platforms as a priority distribution method.

However, based on that definition, the music sector is digital first. So we have to pay attention to the meanings we attach to words and expressions. I'd like to take this opportunity to say that Digital First Canada doesn't represent all online content creators, at least, definitely not the music sector.

What troubles me is the lack of consideration the platforms give to local music. They need to do more for us. We're opposed to any change in the act that might limit the CRTC's power to ensure we benefit from regulations made under Bill C‑11.

However, if, at the regulation stage, some audiovisual content producers from outside the music sector are opposed to having undertakings' content distribution regulated, I'm sure the CRTC will take that into account. In fact, when we tell the CRTC that there's no point in regulating an activity, it generally tends not to do it. Our criticism in the past 20 years has been that it hasn't regulated certain activities enough.

Consequently, I don't think that creators who don't want to be protected by regulations have anything to fear—

[Martin Champoux, Bloc, Drummond, QC]

That's fine, Mr. Menzies.

Independent production, which is what we're trying to protect by regulatory means, is declining. That has been a concern for the industry for some time. It represents 31% of the $9.5 billion you mentioned, compared to production services, which are provided by foreign undertakings that produce in Canada and buy services, such as visual effects.

However, independent production, strictly speaking, is in decline. So it's false to say that the audiovisual industry is doing well in Canada. If we break down and look at the numbers, it seems quite clear this is an industry that could use a little protection from us.

I simply wanted to clarify that point because I thought the overall figure looked good, but the details sometimes reveal minor surprises that slightly misrepresent the actual situation.

Mr. Payette, I'm coming back to you because there's something very troubling here that I think is interfering in our discussion of Bill C‑11, and I'm referring to the issue of content generated by users. Earlier Ms. Fortier mentioned our fear about this.

What do you have to say to creators who earn a living by sharing content online, the digital-first creators, to win their support for the bill? What would you say to convince them that the bill isn't harmful, that it doesn't threaten them and, on the contrary, could help them?

[Peter Menzies]

You could say that under Bill C-11, you're not going to use this clause 4.2, but 4.2 might be there to open the door for online harms.

[Chris Bittle]

Thank you very much, Monsieur Payette.

I'm going to ask my next questions of Mr. Menzies. I think we all agree that the CRTC is bound by legislation and it is then tasked with interpreting that. However, after a big piece of legislation like Bill C-11 is when a policy directive comes in with specific directives to the commission.

Would you agree that a policy directive would be customary in a case like this?

[Chris Bittle, St. Catharines, Lib.]

Thank you very much, Madam Chair.

Before we begin, I really want to say a quick “thank you” to all of the employees who are here making this happen. I know Ottawa got hit incredibly hard. There were some negative comments about civil servants last week in our committee, and it's truly incredible that we're here and doing this. Thank you all, from translators to the clerk and everyone else for being here.

I'd like to make a quick point. There are a number of witnesses who have been talking about what the chair of the CRTC said in regard to regulating user-generated content. I guess this is politics—people leave out the second line—but the next line of his statement was:

...but if I could just quickly respond to the general tenor of those comments, that's all true today. We could do any of those things today under the Broadcasting Act.

I'd like to ask my first question of Monsieur Payette. In your opening remarks, you said that music has had a hard time reaching Canadian audiences. How would Bill C-11 help Canadian music?

[Cathay Wagantall]

Thank you so much for that.

Ms. Fortier, can you briefly—I'm sorry—explain how Bill C-11 will harm digital first creators by playing with discoverability?

[Cathay Wagantall, Yorkton—Melville, CPC]

Thank you so much, Madam Chair.

Thank you to the witnesses for the testimony you've brought this morning.

I have a question for you, Dr. Geist. You have criticized the Liberal government's defence of Bill C-11 for being “misleading”. Could you expand on that, please?

[Peter Julian, NDP, New Westminster—Burnaby, BC]

Thank you very much.

Mr. Reeb, I'd like to come back to you. You've talked about a level playing field and the importance of passing Bill C-11 without delay. Can you tell us more about how Bill C-11, in your opinion, would set and put in place a level playing field?

[Jérôme Payette]

The problem isn't the algorithms as such, because technology is good. It's the way they're being used because undertakings are allowed to operate based solely on financial considerations. We aren't interested in the details about algorithms.

The fact is that the francophone music sector, which represents 8 million persons, isn't a profitable enough market for the undertakings to cater to it. Consequently, we need acts and regulations. This isn't new; it's always been this way. Our sector has always been a small market, hence the importance of statutes that give the CRTC the power to regulate undertakings.

We need to add the cultural aspect to the factors that should be considered, and I think that's what Bill C‑11 will do.