Canadian Heritage Committee on May 28th, 2021

[The Chair, Liberal, Scott Simms]

Welcome, everybody. It's been a bit of a break, but we're all back here at the Standing Committee on Canadian Heritage discussing, once again, clause-by-clause of Bill C-10.

This is meeting number 37. Pursuant to the order of reference of Tuesday, February 16, 2021, and the motion adopted by the committee on May 10, the committee resumes consideration of Bill C-10.

Today’s meeting takes place in a hybrid format pursuant to the House order of January 25, 2021. I would like to remind everyone on board that screenshots or taking photos of your screen are not permitted. Also when you are not speaking your mike should be on mute. You all know that.

Since we are doing clause-by-clause, I'll give just a quick reminder. If you go back to the documents you have here, you will see in the top right-hand corner—for the people who are watching from all around the world or at least all around the World Wide Web in our universe—if I say PV and a number, PV stands for Parti vert, which is a Green Party-proposed amendment. If it says CPC, that would be a Conservative Party-proposed amendment. NDP would be from the New Democrats. BQ would be from the Bloc Québécois. Of course, LIB is from the Liberal members on our committee. Finally, if an amendment has G and a number attached to it, that is a proposed amendment from the government.

(On clause 7)

If you go back to our regularly scheduled programming, you will see that we are currently on BQ-23.

For that, we're going to go to Mr. Champoux.

[Martin Champoux, Bloc, Drummond, QC]

Thank you very much, Mr. Chair.

I'm glad to see you again, friends and colleagues.

Amendment BQ-23 concerns a provision that, under Bill C-10, would be added to the Broadcasting Act to give the Canadian Radio-television and Telecommunications Commission the necessary verification tools to meet the regulation-related requests it receives. Among other things, persons carrying on broadcasting undertakings are asked to grant the CRTC access to certain information. With this amendment, we wish to clarify, in proposed subparagraph 9.1(1)(j)(v), that the information on broadcasting services includes “any information related to any means of programming control.” We would also like to add subparagraph 9.1(1)(j)(vi) to include “information related to any means of promoting, recommending or selecting programming, including Canadian programming.”

I think it's important that we give the CRTC the necessary tools to verify whether persons carrying on broadcasting undertakings meet the requirements set for them.

I'm open to discussion and await your comments.

[The Chair, Liberal, Scott Simms]

Thank you, Mr. Champoux.

Not seeing anyone who would like to discuss that, it is moved—put forward.

Before I go any further I have to say that I've had a couple of people contact me. I should have said this at the beginning and I apologize. They were asking members to please explain the amendment that they're putting forward in a little more of a direct manner, because people cannot see that from home if they're watching from abroad. That would be great if you could do that.

I say that in congratulations because I'm pretty sure Mr. Champoux did just that by describing BQ-23.

Mr. Rayes.

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

Thank you, Mr. Chair.

I'm going to add something to your comment. Yes, it's important that it be succinct, but we nevertheless need certain details, hence my first question.

I'd like Mr. Ripley or one of the other senior officials here to explain the consequences of the Bloc Québécois' amendment.

[The Chair, Liberal, Scott Simms]

Mr. Smith seems to want to take this on.

[Patrick Smith, Senior Analyst, Marketplace and Legislative Policy, Department of Canadian Heritage]

Yes, thank you, Mr. Chair.

Thank you, Mr. Rayes, for the question.

There are a couple of points I would mention to the committee with respect to this motion. First of all, it seems to rely on an amended definition of “programming control” that was proposed in amendment BQ-3. That amendment was negatived, so as a result, the definition of “programming control” remains the “control over the selection of programs for transmission, but does not include control over the selection of a programming service for retransmission”. This is a defined term in the bill, and it refers to it, so I just wanted to point that out.

Given that BQ-3 was not carried, the definition of “programming control” as adopted by the committee in clause 1 will be limited to the editorial function, you could say, of a person, corporate or otherwise, in choosing the program for a service or putting together programming for a schedule. It does not necessarily extend to the algorithmic control that would have been imported by the definitional change in BQ-3.

Secondly, I would bring to the committee's attention that, given the changes imported by amendment G-11.1, conditions of service relating to discoverability on social media services will be limited to the discoverability of Canadian creators. Online undertakings that are not providing a social media service will be subject to programming discoverability orders more generally. As a result, the changes imported by BQ-23 would be aimed at seeking information about recommendation algorithms employed by the platform itself, it would appear, and how it operates its algorithms generally or in relation to the order-making powers outlined in proposed section 9.1.

These algorithms are treated as trade secrets, generally, and a competitive advantage for the services that employ them. Therefore, any request for information on the matter is likely to be met with heavy resistance from the platform itself. I wanted to flag that for the committee. This would be especially so given the definition of “programming control” that was adopted by the committee.

Finally, I have a minor point, and I would defer to the expertise of the legislative clerk on this point. It's really not a question of content, but rather a point with respect to the form of the motion. The placement of the proposed amendment may not be ideal. Proposed subparagraph 9.1(1)(j)(v) is currently included as a sort of basket clause in order to provide flexibility for the CRTC in this section generally. If the committee wishes to adopt the amendment, it might be more appropriate to sever the first part and include it as a subparagraph (iv.1), for example, and similarly label the second part of the amendment as subparagraph (iv.2).

Again, I am not a drafting expert, but as written, the motion may indirectly restrict the original intent of proposed subparagraph (v), which was intended to provide some flexibility to the CRTC.

Thank you.

[The Chair, Liberal, Scott Simms]

Thank you, Mr. Smith.

I see, Mr. Rayes, your hand is up again. Did you want to ask another question, or did you want to go after Mr. Shields?

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

I'd like someone to clarify the comment I just heard.

[The Chair, Liberal, Scott Simms]

Before you do, for all members here, this happened last time. I started this thing with Ms. Harder. Ms. Harder was asking a question to the officials. I let it go back and forth as we would treat a normal witness, and before I was not doing that.

Let's set up this particular system as I do it on the fly. I apologize, but I want to get this thing running smoothly. If you're asking a question of the department, of the officials we have here, and you wish to counter that point or ask another question, physically put your hand up so that I know you're in a back-and-forth with that particular witness. Otherwise, I normally would go to the next person in line. Let's do it that way.

Is everybody okay with that? I see that everyone is.

Monsieur Rayes, why don't you go ahead? Then I'll go to Mr. Shields.

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

That's fine.

First, thank you for your explanation, Mr. Smith. Since I think you've put the ball right back in the legislative clerks' court, I'd like to hear what they have to say about the rest of your explanation.

Just before that, however, I'd like to ask you a direct question. Under this amendment, will the act make it clear whether social media sites will be considered?

[Patrick Smith]

Thank you for the question, Mr. Rayes.

The way that proposed section 9.1 is currently formulated makes it very clear the types of discoverability provisions required on undertakings that carry a social media service and those that don't. This specific amendment seems to be about information that shows how those recommendation systems or algorithms function. As a result, it's more about the functioning of those algorithms or the recommendation systems.

It's more focused in that stream, I would say.

[The Chair, Liberal, Scott Simms]

Okay. Mr Rayes, you have a look of puzzlement. I mean that in a nice kind of way.

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

How might that requirement apply to social media algorithms? A site like YouTube, for example, is updated several times a day. Could it be plausibly be applied?

[Patrick Smith]

For this to be an effective provision.... I understand what you're saying. These algorithms are constantly in flux, but I think the power speaks more generally to receiving broad information about how these algorithms work in a general sense. To get a precise snapshot of how an algorithm is working in the moment would be very difficult and likely impractical, because they do change and evolve over time based on user preferences. I would say that the motion as written is more of a general power to understand how these algorithms work.

[The Chair, Liberal, Scott Simms]

Thank you.

Mr. Shields.

[Martin Shields, Conservative, Bow River, AB]

Thank you, Mr. Chair.

Following up a little bit, I think you provided some excellent information on that from the department. When you see the phrase in there, “including Canadian programming”, how does separating that out as “Canadian programming” change the meaning of it? If you're talking about doing this, why would you separate out “including Canadian programming”? What are the repercussions?

[Patrick Smith]

Thank you for the question, Mr. Shields. I interpret this as more of a precision.

Mr. Champoux, I don't intend to speak to the intent of your motion, so I'd be happy to have you explain this as well.

I see two aspects to this motion. One is about transparency for recommendation systems in general. The second is about transparency in how they relate specifically to Canadian programming, so understanding how Canadian programming fits within a broader recommendation scheme employed by the platform.

[Martin Shields, Conservative, Bow River, AB]

Just to follow up on that, would that, in a sense, be comparing what we see used internationally that's being used in Canada compared with what Canadians use? Would it be looking at what foreign ones do compared with what Canadian ones do?

[Patrick Smith]

I'm not sure I would say that. I think it's more about how they are delivering or recommending content broadly, all the programming on a platform to Canadians, and then how a subset of that programming—Canadian programming—is also being recommended to Canadians.

However, I would defer to Mr. Champoux on that.

[Martin Shields, Conservative, Bow River, AB]

Maybe he can respond to that then. Thank you for your answer.

[The Chair, Liberal, Scott Simms]

Thank you, Mr. Shields.

Mr. Champoux, we'll go to you.

[Martin Champoux, Bloc, Drummond, QC]

Thank you for that explanation, Mr. Smith.

Yes, Mr. Shields, the words “including Canadian programming” are added to clarify that point. I think that's one of our main concerns about the revision of this act. However, it's true that the subparagraph wouldn't necessarily lose its meaning, and would even afford a little more flexibility, if the words “including Canadian programming” were deleted.

In addition, further to the exchange between Mr. Smith and Mr. Rayes, I'd like to go back to a point concerning algorithms in general. We don't necessarily want to analyze, dissect or understand the algorithms because they are indeed changing, adaptive tools that can be updated several times a day. However, algorithms today are a predominant programming control tool and will be even more so in the future. They will likely become the tool most used by all broadcasters. If the CRTC isn't given access to all the tools it might ultimately need, including algorithms, we'll be missing an important element. I don't think we should deprive ourselves of that.

I also heard someone say there will definitely be considerable resistance from online undertakings because they view algorithms as trade secrets. However, this isn't the first time we've had to regulate sectors of the industry that have trade secrets. We nevertheless have to ensure regulatory compliance. Financial market authorities also have to deal with this kind of delicate information, and they manage to do so without betraying trade secrets.

I don't really think this is a problem we should fear, despite the potential outcry from online undertakings. It shouldn't prevent us from adding the tools the CRTC might need to do its job to the Broadcasting Act.

Thank you.

[The Chair, Liberal, Scott Simms]

Okay.

Mr. Shields, I'm assuming that your hand is still up from the last round.

I'll go to Mr. Manly.

[Paul Manly, Green, Nanaimo—Ladysmith, BC]

Thank you.

I have a question for the specialists. I know that with TikTok videos, you can do 15-second videos and you can do three or four of them together to get 60 seconds. We've had TikTok videos that are maximum three minutes now. With Instagram you can do 60-second videos. Under the CRTC regulations for Canadian content, are videos under five minutes covered under the certification program for Canadian content, or are they covered under the act?

[The Chair, Liberal, Scott Simms]

I'm looking to Mr. Ripley.