Evidence of meeting #41 for Canadian Heritage in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was content.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Thomas Owen Ripley  Director General, Broadcasting, Copyright and Creative Marketplace Branch, Department of Canadian Heritage
Clerk of the Committee  Ms. Aimée Belmore

8:10 p.m.

Conservative

Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB

Mr. Chair, I'm happy to allow Ms. Dabrusin to go first. She did have her hand up first.

8:10 p.m.

Liberal

The Chair Liberal Scott Simms

Ah.

8:10 p.m.

Conservative

Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB

On the point of order, it sounded like he was deploying the Simms protocol from PROC. I don't know if the Simms protocol has been brought over from PROC to the heritage committee.

For the substantive intervention, I'll let Ms. Dabrusin go first, and then I'll follow.

8:10 p.m.

Liberal

The Chair Liberal Scott Simms

Thank you, Mr. Genuis, for bringing that up.

From one generous offer to another, Ms. Dabrusin, you have the floor.

June 9th, 2021 / 8:10 p.m.

Liberal

Julie Dabrusin Liberal Toronto—Danforth, ON

Thank you, Mr. Chair, and Mr. Genuis.

I will have a couple of questions for Mr. Ripley, but before I get there—because we've covered a lot of ground all around the bill and beyond it—I just wanted to perhaps remind, especially Mr. Rayes when I was listening to him, about a couple of things.

One is that we adopted clause 2 much earlier in this review of the legislation, and that, in fact, created an exclusion for user-uploaded content.

Also, if he would take a look at the amendments that we had introduced with G-11.1, it actually does have a different discoverability rule for social media companies. I need to say “social media companies”, not people uploading their content. I just wanted to clarify that because we've covered a lot of ground and sometimes it can be hard to remember exactly where we've been.

There has been a lot of conversation about our artists and what the purpose of this bill is. I think it's been clear all along that the purpose of this bill is that we want web giants who are making money here in Canada to contribute a portion of the revenues they make here in Canada to our Canadian artists. The decision by the Conservatives to block this actually dates back to before this even got to committee. It dates back to when this was first debated in the House. That's just to give some background as we have that conversation.

I believe that one of the questions raised by an earlier speaker was about who the artists are who want the support. I guess I can understand where this question comes from this, given the statements made by the Conservative member for Lethbridge who has been a frequent attendee at this committee. She said that this bill was about supporting artists who “are not able to make a living off of what they are producing...so they require grants that are given to them by the government.” It also included a statement saying that artists can “apply for that money so they can continue to create material Canadians don't want to watch”.

In some of the previous statements that were made today, there were questions about who the artists were because there were many references to lobby groups. Individual artists like Yannick Bisson, who is the star and director of Murdoch Mysteries, which is a big success here in Canada and around the world, have expressed support. There's Jean Yoon of Kim's Convenience, which is also popular here at home and around the world. There is also the director, I believe, of Corner Gas.

Looking at who's received FACTOR funding—and who the member from Lethbridge felt we do not want to watch—there are people like Grammy-nominated Jessie Reyez, Gord Downie, the Arkells and shows like Schitt's Creek.

That's just to give a bit of background because there has been a lot of conversation today about this bill. I think it's important to ground it in what we're actually trying to do with this bill, the artists we're trying to support, artists who have actually spoken up individually to show their support, or who—if we look through the granting systems—have received support, so that they can create the great art that we love here and has been loved around the world.

On that, when I was looking at this specific amendment, I was trying to understand what it adds to clause 2.1.

Can I please ask Mr. Ripley how it ties in with that addition to the bill?

8:15 p.m.

Liberal

The Chair Liberal Scott Simms

Mr. Ripley.

8:15 p.m.

Director General, Broadcasting, Copyright and Creative Marketplace Branch, Department of Canadian Heritage

Thomas Owen Ripley

As the committee is aware, Bill C-10 as tabled includes a definition of “programming control”. That term is used in a few places in Bill C-10. You will see a couple of references to it throughout the policy objectives section. With respect to regulatory powers, you will see it referenced in one place, in proposed paragraph 10(1)(c), with a discussion of programming standards.

The definition was included in Bill C-10 to recognize the fact that there are different business models out there. For some of those business models you have the distribution of content, but the entity distributing that content isn't exercising any control over the selection of those programs. Perhaps one of the most simple examples to understand is that in a conventional system, you have cable and satellite companies that transmit the TV channels of others. The TV channel exercises control over the programming that's included on their channel, but Rogers Cable or Bell or Vidéotron do not. This definition was included to make the distinction, again, between those business models where a company does and does not have control. This was intended to be a determination in fact that would be made about any given situation.

The amendment proposed by Mr. Rayes would essentially have the committee clarifying or making it “deemed”—I think that's the word used in Mr. Rayes' amendment—that in terms of content that is uploaded to social media services by unaffiliated users, that social media service is deemed not to have programming control over it.

With respect to the regulatory powers of the CRTC, it would only be a question of whether or not proposed paragraph 10(1)(c) would apply to social media companies. I know we haven't gotten there yet, but to my recollection from a few committee meetings ago, government members did indicate that the intention is to limit those powers as well and their application to social media services. That would be the point at which this amendment would come into play. It's not really directly relevant to proposed subsection 2(2.1).

Thank you, Mr. Chair.

8:15 p.m.

Liberal

Julie Dabrusin Liberal Toronto—Danforth, ON

Could I follow up with another question, Mr. Chair?

8:15 p.m.

Liberal

The Chair Liberal Scott Simms

Absolutely. Go ahead.

8:15 p.m.

Liberal

Julie Dabrusin Liberal Toronto—Danforth, ON

How would this amendment detract from the purposes of the bill, or that part of the purposes of the bill, to have the social media companies contributing to the programming and cultural production funds? What would be the negative impact, if any, of this?

8:15 p.m.

Director General, Broadcasting, Copyright and Creative Marketplace Branch, Department of Canadian Heritage

Thomas Owen Ripley

The impact of this amendment on whether social media companies make a financial contribution or not, based on my assessment, is none. Again, the only relevant point when it comes to the regulatory powers would seem to be proposed paragraph 10(1)(c), where you see the use of the term “programming control”. The committee hasn't gotten to that section yet to discuss whether those powers will be scoped back similar to the way the proposed section 9.1 powers were scoped back. With respect to whether or not they would have to make financial contributions, this isn't relevant.

8:20 p.m.

Liberal

Julie Dabrusin Liberal Toronto—Danforth, ON

Thank you.

8:20 p.m.

Liberal

The Chair Liberal Scott Simms

Thank you.

Mr. Genuis.

8:20 p.m.

Conservative

Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB

Thank you, Mr. Chair.

It's good to see the members of this committee. I think it's my first time subbing in at the heritage committee, but from a distance, I have been following your proceedings very closely out of great interest in the bill's subject matter in general.

Also, I have a particular amendment, which I think you're aware of, that deals with issues of broadcast involving abuses of human rights. Realistically and unfortunately, given the important free speech issues that have to be discussed, we probably are not even going to get to have the opportunity to explore that amendment here at committee. Nonetheless, I appreciate the opportunity to be with you.

I'm supportive of this amendment by Mr. Rayes, which I think advances and protects freedom of speech. It doesn't fully protect it, obviously, as existing concerns about the bill as structured remain, but it's an important step in the right direction.

I'm struck by I guess two points that Ms. Dabrusin made in respect to the comments Mr. Rayes had made about the nature or objectives of the bill. This speaks, I guess, to a broader frustration with the kinds of arguments that are often used to advance the positions that the government takes.

One is to rely very heavily on intention: to say “the bill intends to”, “we intend to” or “we intend to do this”. An assertion of intention is just not reassuring when experts—former CRTC commissioners, academics and others—have reviewed the text of the bill and have said that “this is what it does” and “this is what the bill says”. Good intentions are not enough. Especially for legislators, what matters is what's in the bill. I think we should look at the bill, I think we should look at the amendment we're discussing and I think we should frame our approach to it based on the language of the amendment itself and the language of the bill itself, not on some assertion about intentions.

The other logical fallacy, I guess, that informs a lot of the reasoning of the government in this bill—and, frankly, I think in other bills as well—is the creation of false choices, the sense that we have to choose between alternatives that we don't actually have to choose between. When we're looking at a complex broadcasting reform bill, I think we should identify not just one objective or two objectives, but a broad suite of objectives, and then undertake the development of a framework that achieves all of those objectives.

Government members have said: “We're trying to support artists. We're trying to stick it to the big web giants. Therefore, this is what we're doing.” Conservatives have said that protecting freedom of speech is important and that the bill as structured raises issues about freedom of speech—experts have said that—and I think that certainly the amendment we're currently discussing takes a step toward addressing those free speech concerns by providing more protection for users and user-generated content.

I would just say in general that there's no reason why we have to choose between support for artists and protecting free speech. It seems to me, as someone who is not a regular member of this committee and not a huge expert on broadcasting policy—although I have a growing interest in it—that it shouldn't be difficult to construct a framework that supports artists, that charges whatever the legislature deems to be a fair rate of return from large online companies and that also protects freedom of speech. There would be a variety of different frameworks through which that could be done. One would be simply through tax and subsidy.

The minister's latest defence of the bill is that there's money that needs to get to the artists and the delaying of the bill is delaying getting money to the artists. Well, there are a lot of different mechanisms the government could develop for getting money to the artists, and they don't require this bill to do that. There is a variety of different frameworks that they have available.

I think it's the responsibility of governments not to try to set up a false choice. We don't have to choose between commitment to artists and a desire to see content developed in Canada and freedom of speech. We can and we should seek to preserve both.

Some of the amendments that we've put forward don't in any way take away from the objective of supporting artists. As well, prior to the amendments that were put forward at this committee, when the bill was in second reading form, the government argued at that time that it was a framework for supporting artists. That was before the government made the changes that have garnered so much attention in the wider public—certainly in my constituency—in terms of their impact on freedom of speech.

Mr. Chair, I want to make this point, as well, as I think it's particularly applicable to the amendment as it pertains to discoverability on social media and what will be required of users and so forth. I think we have to understand substantively what freedom of speech is and why it's important. Freedom of speech is not just the right to say something. It's not the sort of abstract assertion in a vacuum that people should be able to say anything they want. It develops from an appreciation for the fact that people's speaking and being heard allows for an exchange of ideas; the sharing of information and concepts through conventional speech, as well as through artistic mediums and other forms; the presentation of those ideas; the hearing of those ideas by a wider public and the evaluation of those ideas; and then the creation of combinations and syntheses that in some sense move our society forward.

Freedom of speech is valued because it creates opportunity for people to hear, evaluate and compare different options, to decide what they like and dislike, to decide what they believe is conveying true or false messages in certain contexts, and to compare those messages and come to conclusions. That's why freedom of speech is important. That's the core argument and I think the most influential argument for freedom of speech that someone like John Stuart Mill makes in On Liberty, namely, that freedoms allow for the presentation of ideas and experiments in living that allow people to listen and come to conclusions.

What this bill does, I think, and what the government's defence of this bill does is conceptually try to separate this question of a right to speak from a right to be heard. It says that you can post whatever you want online but that we will allow the CRTC to go in and make regulations around discoverability that influence whether or not the things you say online are heard. It tries to sort of take from that right to speak element the question of a right to be heard.

I would just say that for freedom of speech, freedom of expression and liberty in general to be meaningful, it has to include not just the right to sort of speak into a void but also some ability to not have the state interfering with and limiting your ability to be heard.

The powers that I see this bill—unamended and in its present form—giving to the CRTC in the name of discoverability allow a government body to make regulations with respect to not, in this context, what you can say but whether or not you can be heard. That might seem like a distinction, but if we are to try to pull those things apart—the right to speak and the right to be heard—then I think we are really robbing the concept of freedom of speech of its substantive meaning.

What this amendment does is say to the users that they will have the freedom to not be interfered with by the CRTC on the degree to which their content will be heard on social media platforms. That, again, is an important effort that we are undertaking to protect this concept of freedom of speech and to protect it in a meaningful way, in a substantive way, and in a way that goes beyond just the formulaic idea of the right to speak and actually draws from the real meaning of what it means to have a right to speak. It's why our charter and pre-existing constitutional documents have emphasized the idea and importance of freedom of expression.

I do think part of why this amendment is important as well is because it speaks to this issue of algorithm regulation, a question that has not been answered. We've had multiple occasions on which the question has been put directly to the minister. It was asked, I think, by a member at this committee. Is this bill seeking to allow regulation of algorithm? I think it very clearly does. Is this bill seeking to allow the regulation of algorithms, and if it's not seeking to, maybe the government is willing to accept amendments that eliminate the risk of CRTC algorithm regulation.

The minister was as clear as mud on this when he was asked in the committee. He said it's not a yes and it's not a no. I asked the same question during the closure debate of the minister in the House about algorithm regulation. He said something to the effect of "Let me use a vehicle analogy. If we have a car, I hope it's electric, but if we have a car it's...". I'm going to get this wrong. He said, "We're not interested in what's under the hood, we're interested in where it's going." I might have that mixed up. In any event, he used this vehicle analogy that I just didn't understand. I didn't understand what he was conveying. I re-asked the question, and he said he'd answered it, but maybe the member hadn't understood.

Maybe this is just a question I should ask to the officials. I don't know that I want to put them on the spot by asking them to answer a question that the minister has been unable to answer, but it is a technical question that I think maybe they can provide a technical answer to.

Does the bill, as written without this amendment, allow for the possibility of algorithm regulation? If the amendment is added, what is the possible impact on the ability of the CRTC to engage in the regulation of algorithms?

Mr. Chair, can I put that to Mr. Ripley as part of my time?

8:30 p.m.

Liberal

The Chair Liberal Scott Simms

Mr. Ripley, would you like to take this?

8:30 p.m.

Director General, Broadcasting, Copyright and Creative Marketplace Branch, Department of Canadian Heritage

Thomas Owen Ripley

The committee has had an opportunity to discuss this issue before. It is most relevant with respect to discoverability measures or powers that are being given to the CRTC, because I think there's an appreciation on this committee that recommendation engines that are used on services like Spotify or Netflix or social media services like YouTube or others employ algorithms that underpin those recommendation engines.

I've indicated before that, when it comes to the discoverability of creators on social media platforms, it would be premature to judge what the outcome of regulatory proceedings are and how the CRTC may choose to move forward on this issue, given the example of it requiring the profiling of artists or creators on landing pages. That would be one way to increase the profile of artists or creators. Yes, it could also extend to requiring Canadian creators or artists to potentially be surfaced in search results.

The answer to the question is that algorithms are relevant, but I think we also acknowledge that the algorithm is a mathematical formulation that most of us wouldn't even begin to understand, so the emphasis is on the outcome of that. The emphasis is on the profiling of the creator or the artist or the surfacing of those creators or artists. Algorithms are relevant to the extent that they're an important part of the way that recommendation engines work on a variety of different online platforms.

8:35 p.m.

Liberal

The Chair Liberal Scott Simms

Okay.

Go ahead, Mr. Genuis, you still have the floor.

8:35 p.m.

Conservative

Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB

Mr. Ripley, you shared a lot of information there, but I think I understood your answer much more clearly than the minister's.

Essentially the answer to what you're just saying is, yes, that CRTC is being empowered to engage in algorithm regulation. It would be premature to say how they're going to use that power, but they do have the power to regulate algorithms to achieve certain objectives.

Is that correct?

8:35 p.m.

Liberal

The Chair Liberal Scott Simms

Mr. Ripley.

8:35 p.m.

Director General, Broadcasting, Copyright and Creative Marketplace Branch, Department of Canadian Heritage

Thomas Owen Ripley

Thank you, Mr. Chair.

The emphasis I would put on this is that we would expect the regulatory obligation to focus on the expected outcome.

The way that would be put into effect—again I just caution against necessarily assuming where this lands—is assuming that the focus is on our wanting a greater percentage, or representation, of Canadian creators or artists to surface in search results. We expect the regulatory obligation to be focused on the outcome of this, as in, this is how we want to see those artists or creators surface, as opposed to our wanting you to change your algorithm in this specific way. That's the distinction I'm trying to make.

To your question, yes, there could potentially be an impact on the algorithms of these online services, depending on how CRTC puts that into effect.

8:35 p.m.

Conservative

Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB

Okay.

8:35 p.m.

Liberal

The Chair Liberal Scott Simms

Go ahead, Mr. Genuis.

8:35 p.m.

Conservative

Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB

Yes.

So you're saying that it could result in algorithm regulation. What you're expecting is that the government will not as much say that you have to change your.... I take your point about the mathematical complexities of algorithms. The CRTC is unlikely to say that you must change this number in the algorithm from a seven to a four and add a plus sign here and a division sign here. They are more likely to say that you have to change your algorithm such that you have XY outcome.

Is that right?

8:35 p.m.

Liberal

The Chair Liberal Scott Simms

Mr. Ripley, go ahead. Sorry.

8:35 p.m.

Director General, Broadcasting, Copyright and Creative Marketplace Branch, Department of Canadian Heritage

Thomas Owen Ripley

Thank you, Mr. Chair. I never want to presume.

When you look at online services like Spotify, the reality is that you do see less Canadian, francophone artists, for example, surface in search results. Indeed, the reason that discoverability powers were included in Bill C-10 from the get-go was to recognize that if we want to make sure that our Canadian artists and creators are being surfaced on these platforms, the CRTC needs the tools to do that.

To your point, we expect that the impacted social media service or the impacted online undertaking would obviously still have control over how they did that, in a way that would continue to jive with their business model.