Canadian Heritage Committee on June 4th, 2021

[The Chair, Liberal, Scott Simms]

With that endorsement, I'll do just that.

Mr. Shields, properly endorsed, the floor is yours, sir.

[Martin Shields, Conservative, Bow River, AB]

That's scary. Thank you.

I assume that the staff from the department is with us today.

[The Chair, Liberal, Scott Simms]

Yes, they are.

[Martin Shields, Conservative, Bow River, AB]

Okay.

My question is to the staff, to ask them how they would view this dual approach in the sense of those who voluntarily...and those who don't. Does the heritage department have an opinion? They've seen this amendment for a while. I'd be interested in knowing what they would think of this dual approach.

[The Chair, Liberal, Scott Simms]

Before I go to Mr. Ripley, let's try to do this as we'd worked out before. If you're asking questions to the department and you wish to follow up, can you just raise your hand towards the camera so that I can see that you want to follow up? I don't want to give someone else the floor when I shouldn't.

Mr. Ripley, you have the floor.

[Thomas Owen Ripley, Director General, Broadcasting, Copyright and Creative Marketplace Branch, Department of Canadian Heritage]

Thank you, Mr. Chair.

Thank you for the question, Mr. Shields. I would point out a couple of things. The first one is with respect to the reintroduction of language along the lines of proposed section 4.1.

The challenge for the committee is that this language is in a certain degree of tension with amendments that the committee has now passed. One of the challenges, as the committee may now recall, is that it has passed some language in proposed section 9.1 that speaks specifically about programs that are uploaded to an online undertaking that provides a social media service. Implicitly, there is acknowledgement that the jurisdiction of the CRTC extends to that programming. With the reintroduction of proposed section 4.1, you can see that there's a certain amount of tension now with that language that the committee previously endorsed.

The legal situation of how that would play out is extremely unclear. A court or the CRTC would presumably try to reconcile those two things and find a way for both of those provisions to stand. That could be done by reading down certain provisions of the act or trying to find a way to make sense of those two things. I think the committee should be aware that it may be creating a situation of a degree of legal uncertainty.

With respect to the question of how it would work in practice, if a social media creator wanted to opt out of that, again, it's unclear how that would be operationalized by the CRTC at this juncture. On the one hand, the committee has endorsed language that gives the CRTC certain powers to promote the discoverability of those creators, and then, on the other hand, if this language is passed, there is a suggestion that they could potentially opt out of that. Again, the legal situation of how those two things would work together is quite unclear.

[Martin Champoux, Bloc, Drummond, QC]

I have a point of order, Mr. Chair.

[The Chair, Liberal, Scott Simms]

On a point of order, is that you I hear, Mr. Champoux?

[Martin Champoux, Bloc, Drummond, QC]

It is me, Mr. Chair. As you can see, I'm back. I would like to thank my fellow member Mr. Lemire for holding down the fort for a few minutes.

I want to flag something, Mr. Chair. When a vote is taking place in the House of Commons, members have to participate through one of the means available to them, in‑person participation being the main one. As you know, the committee's proceedings are deemed to be suspended until the members are back in the committee room or ready to participate virtually, as the case may be.

I was in the House a short time ago for the vote, and the committee was in a rush to get started even though the results of the vote had yet to be announced. I was forced to ask a colleague on the spur of the moment to replace me on the committee, which is in the midst of some very important discussions.

I won't belabour the point, but it really bothered and concerned me. I would even go so far as to call it a lack of respect for the parliamentary procedure we are supposed to follow.

Thank you.

[The Chair, Liberal, Scott Simms]

Mr. Champoux, I can honestly say to you that you can consider me to be duly scolded. I think you have a valid point. I did not realize.... In my mind, I was thinking you were online on Zoom and not in the House. That was rather disrespectful of me to proceed without you coming. I can assure you, sir, with all my apologies, it will not happen again.

The only thing I ask is if you could update us that you're in the House or on your way. That would help us out dramatically.

My apologies to anybody as we try to get used to having people in the room and not in the room. We're going to do this right.

Again, Mr. Champoux, you have my deepest apologies.

We finished with Mr. Shields' question.

I think you wanted another question, Mr. Shields. Go ahead.

[Martin Shields, Conservative, Bow River, AB]

Thank you.

Again, I appreciate Mr. Manly in the sense of bringing what he believes is a sense of compromise to deal with some of the issues that we were dealing with. I thank him for doing that.

I'm just following up again with our department. I heard two things. One was that the legislation, in the sense of amendments that have been passed.... I believe he is saying that the CRTC would view the challenge of.... They are all inclusive of all of the social media platforms and the creators. They would view that legislation as inclusive. If we adopt this amendment, it would create sort of a challenge for them to understand how they wouldn't be dealing with those who are not included. That's the first part of what I think the department was telling me.

I think the second part was that the department had a challenge trying to comprehend how the heritage department, through the CRTC, would deal with the opting in or opting out. I think that he expressed that if there's discoverability, it would be the discoverability of those who opted in and maybe not those who opted out. He had a concern. I believe he was suggesting that could arise.

Of course, that leads me to the same conclusion. If the CRTC is looking at those for discoverability more than they are of others that are Canadian, that creates the same type of process. I think the department would be somewhat stating the concern that many of us have had, which is that in doing what Mr. Manly has said—volunteering in or not—those who volunteered in with discoverability automatically would be rated higher because of that discoverability.

I think that's problematic and why we were extremely concerned that this resolution, in the sense of 4.1, will now do the same thing, which is that for those Canadian creators and culture people participating in it, there is going to be a mechanism within the CRTC that ranks and rates the discoverability of some more than others.

I think this amendment points out exactly the challenge. I think department staff is basically saying they have a concern about those who are opting in versus who are opting out. The whole process of a mechanism of opting in is one of the challenges that we have in the sense of creating programs. It's sort of like with the $5,000 for the house renovation. When 30,000 people applied to begin with, the website fell apart.

It's an interesting thought. Again, Mr. Manly, I really appreciate your looking at a solution. You have a long history of working in the industry and know it well. I really appreciate your looking at another avenue that might resolve that freedom of speech and leave those who choose not to be involved in one. I think that's significant in what you're attempting to do here.

I think the challenge, from what I'm hearing from the department, is that it may create that same thing that we believe has been created by removing that piece now.

I'll leave it at that.

Thank you.

[The Chair, Liberal, Scott Simms]

Mr. Rayes.

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

Thank you, Mr. Chair.

I want to start by thanking Mr. Manly for explaining his amendment, because it was clear he had concerns about the freedom of expression of certain creators and Canadians who post content on the web. I think he has the right idea in mind. Like us, he is trying to remedy Bill C‑10's failings.

I do have a few questions for the experts, though. Perhaps Mr. Manly can chime in as well.

As per Mr. Manly's amendment, the end of new paragraph 9.2(a) reads “except where the Canadian creator of a program has voluntarily chosen to be subject to the Act for discoverability purposes”.

I have to wonder because the explanatory note provided to the minister by justice officials does not refer solely to Canadian creators of programs, as we imagine them when we think of traditional broadcasters. The purpose is to apply the act to digital broadcasters in the same way it applies to traditional broadcasters.

Like a number of experts, former senior CRTC officials and other Canadians, the Conservatives are concerned about all Canadians who upload content on social media platforms or use web-based applications, whether for exercise or gaming. The explanatory note even states that, under Bill C‑10, the CRTC could possibly regulate audiobooks and podcasts. It refers not just to Canadian creators of programs as we think of them, but also to anyone who currently downloads or transmits information via web-based platforms and applications.

How will the government or CRTC make sure 38 million Canadians have prior knowledge that they can voluntarily choose to be subject to the act for discoverability purposes? That is my first question for the experts.

Second, who will that obligation fall to? The CRTC or the government? Am I mistaken to think that, should it be adopted, Mr. Manly's amendment would give rise to an obligation to inform all Canadians of this option?

Mr. Manly can give his take, if he likes, but I'd like to hear from Mr. Ripley first. Actually, Mr. Chair, you can decide who should have the floor.

[The Chair, Liberal, Scott Simms]

I'll go with Mr. Ripley first. Would I go to Mr. Manly afterwards? Would you like that?

Okay. Let's go with Mr. Ripley first.

[Thomas Owen Ripley]

Thank you, Mr. Chair.

I would like to thank Mr. Rayes for his question.

The answer is that it is up to the CRTC to oversee the matter and put a system in place, given that responsibility for implementing Canada's broadcasting system falls on the CRTC. Operationalizing that will certainly pose challenges.

On one hand, the committee proposes giving the CRTC the power to make orders regarding the discoverability of creators, and on the other, Mr. Manly's amendment would give people the option to be subject to the regime.

Once again, the two proposals seem to be conflicting. The CRTC is the one responsible for establishing a mechanism to make creators aware of their choice to be subject to the act. Operationally, implementation certainly poses a challenge.

[The Chair, Liberal, Scott Simms]

I'm going to go to Mr. Manly.

Mr. Manly, you don't have to if you're....

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

Sure, I don't mind.

[The Chair, Liberal, Scott Simms]

Okay, go ahead.

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

I'm a producer, and I've produced lots of different documentaries and films. In the process of doing that, afterwards, I've sold documentaries to CBC or to provincial broadcasters that are regulated under the CRTC and the act. When I submit a program, they ask me to fill out a form as to whether it meets Canadian content criteria or not.

If it doesn't meet Canadian content criteria, then it doesn't count towards what they're broadcasting as Canadian content, but it gives me the option of doing that. I fill out the forms—it's a fairly easy process to do—I submit them to the CRTC, I get my certification and away I go.

That's the idea behind this. It's just to have an opt-in. I guess if it conflicts with something that's already been passed, then that might create some issues in terms of the CRTC figuring out how that would work, but the idea is to have an opt-in system so that people who do want to have discoverability can have that option. Then you would have something for those online undertakings to ensure that, for people who do want to be recognized as Canadian content on their platforms, they show Canadian content in that process. Maybe that pops up a little Canadian flag on the side. Maybe it's when they're suggesting that if you like this, you might like that, or maybe it's an opt-in for users of that platform.

Currently, when I watch stuff on social media, I have no idea where it's produced. I can search YouTube under search words to find out if perhaps it was made in Canada, but a lot of producers don't bother putting tags in to say where their productions were made.

I'm just thinking about a system that could work for users of the platform to find Canadian content and for producers of Canadian content to be more easily found by people who want to support Canadian talent.

[The Chair, Liberal, Scott Simms]

Mr. Rayes, you may go ahead.

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

Thank you, Mr. Chair.

I heard what Mr. Manly said, but personally, when I read new paragraph 9.2(a), as proposed in the amendment, I think of Canadian creators of programs. Since Mr. Manly is a producer, he sends a lot of content, so I imagine that he has people who help him and that he's used to the process. On the flip side, I think of Canadians who post content on social media. The issue is hotly debated by members on the committee and in the House of Commons.

The minister keeps engaging in demagoguery, claiming you are either with GAFA and the web giants of the world or with Quebec and Canadian artists. He always talks about Quebec, trying to play to the crowd there. We are defending the freedom of every Canadian who uses social media and other web applications, Canadians who create audiobooks and podcasts.

In my riding, we have artists who earn their living from their craft, without asking for any assistance. When asked about it by journalists, they said they wondered why the government, through the CRTC, would want to poke its nose in social media or try to regulate such platforms. Those artists chose to have their work seen by the entire world and they are worried other countries will take similar steps, preventing the artists from showcasing their talent for all the world to see. I am talking about artists with more than 560 million subscribers on YouTube alone. Their work is also on Spotify and every other music platform, and they earn their living from their craft. They are just as much artists as are members of the Union des artistes or any other association, but they have no representation whatsoever.

Why am I so worried? Since the beginning, we have shown good faith, but we have concerns about the bill. As originally introduced, the bill had a certain purpose, and the minister touted his bill on that basis when he did the rounds of the media outlets. However, the purpose of the bill changed when the section he proposed adding to the Broadcasting Act, section 4.1, was removed. The bill now applies to social media and other applications. That puts the bill in a whole other realm, and those affected never had a chance to have their say. The minister was more than happy to talk about the fact that the committee had heard from a hundred-odd witnesses and received numerous briefs, but all of that feedback related to the bill in its original form. All of those who became subject to the bill once proposed section 4.1 was removed will have never had their voices heard or shared their concerns with the committee, not to mention that the committee refused to adopt amendment CPC‑9.1, which would have remedied the problem.

We are reviewing a 30‑year‑old act, and it will be around for another 30 years. Further to these changes, we are giving the CRTC extreme powers without knowing everything that could happen as a result. We have no idea how many Pandora's boxes we are opening.

I am very worried. I should point out that what Mr. Manly is proposing is not what worries me. I think he is indeed attempting to fix the problem, and for that, I genuinely commend him. However, it just further goes to show that it will not be enough. I don't see how the CRTC or the government will manage to inform all Canadians in real time, whenever they upload content, that they can choose to be subject to the Broadcasting Act for discoverability purposes.

I have huge concerns, ones that call to mind the concerns I had at the beginning. The government wants to impose time allocation on debate of the bill to keep us from getting at the facts as we examine all of these amendments. They have been put forward by the government and the opposition parties, including the Green Party, which was allowed to participate in the committee's proceedings and is trying to help us make a bill that is full of flaws as good as it can be.

I'm not sure whether the amendment is plausible, Mr. Ripley. At the end of proposed paragraph 9.2(a), it says “except where the Canadian creator of a program has voluntarily chosen to be subject to the Act for discoverability purposes”. Would you say that refers to all Canadians who post information on social media or just to Canadian creators of programs who are registered and recognized by the CRTC?

I am eager to hear your answer.

[Thomas Owen Ripley]

Thank you for your question.

Again, we need to consider things in context. Under proposed subsection 2(2.1), individuals would not be treated as broadcasters if they are not affiliated with an online undertaking or a social media service. The discoverability requirements apply to online undertakings and social media services.

The challenge lies in operationalizing the measure. First of all, it is the CRTC's responsibility to establish and oversee a regulatory framework that would apply to a number of online undertakings. YouTube is one, of course, but there are others. However, it would be up to the online undertakings to apply the regime and to know whether a Canadian creator chose to be subject to the system or not. As you can imagine, that raises a lot of questions as to how an online undertaking would apply such a measure to a social media platform.

I repeat, our concerns relate to the operational dimension, in other words, how it would be put into operation on a daily basis. That raises a number of questions.

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

You said that, under proposed subsection 2(2.1), users would not be subject to the act, if I understood correctly.

My question pertains not just to users, but also to the content they post on social media. When he was here, I asked the Minister of Justice whether the Canadian Charter of Rights and Freedoms protected only users, or both users and the content they share online, but he refused to answer.

That is the crux of the problem, as we see it and as a number of experts who are commenting publicly see it. Not having had the opportunity to share their views with the committee, they are having to express their concerns virtually, on various social media platforms.

I'd like to hear your answer in relation to content.

[Thomas Owen Ripley]

Thank you for your question, Mr. Rayes.

As initially proposed, section 4.1 excluded user-generated programming. As the committee members are aware, that section was replaced by a limited power granted to the CRTC under new section 9.1. We haven't yet addressed the issue as it relates to section 10.

Again, the power relating to discoverability applies to creators. The requirement applies to social media services, not to individuals. The regulatory power applies to social media, which could be required to promote creators further to a regulatory process. It does not have to do with promoting content. Again, the idea is to avoid having to determine what constitutes Canadian programming in the social media sphere. That is why the power granted to the CRTC under new section 9.1 really focuses on Canadian creators and artists.

I don't know whether that answers your question, Mr. Rayes. Mr. Manly raises a number of content-related points. Again, the amendment adopted by the committee is not meant to promote Canadian programming on social media; rather, it is meant to promote Canadian creators.

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

That's great.

My next question is along the same lines.

Can you confirm whether my analysis is correct? In other words, would the requirements in the amendment have repercussions for amendments G‑13 and BQ‑33, given the creation of a registration requirement for online broadcasting undertakings? Amendment G‑13 would even extend it to social media. The registration requirements could be used to pick winners and losers—