Canadian Heritage Committee on May 31st, 2022

[The Chair, Liberal, Hedy Fry]

I call the meeting to order.

Good morning, everyone.

Welcome to meeting number 26 of the House of Commons Standing Committee on Canadian Heritage.

I would like to acknowledge that this meeting is taking place on the unceded traditional territory of the Algonquin Anishinabe people.

Pursuant to the order of reference of Thursday, May 12, 2022, the committee is meeting to the study Bill C-11, an act to amend the Broadcasting Act and to make related and consequential amendments to other acts.

Today's meeting is taking place in a hybrid format, as you can all see, pursuant to the House of Commons order of November 25, 2021. Members attending in person must wear a mask at all times, and members attending virtually will be using Zoom. As for the directive of the Board of Internal Economy on March 10, 2022, all those attending in the room must wear a mask at all times. Actually, you could wear a mask and speak. We can hear you very well. The clerk speaks with a mask all the time.

I want to make a few comments for the benefit of the witnesses and members. First, you cannot take photographs of this meeting, so please remember that. Wait until I recognize you by name before speaking, and for those participating by video conference, if you look at the bottom of your screen, you will see a globe icon. Please use that for interpretation. Those of you in the room, you know that you can plug in for interpretation in the room itself. If you want to activate your mike, there is a mike icon at the bottom of the screen, and when you're not speaking, I would ask you please to mute yourselves.

We will now begin this meeting, and I want to welcome all of the witnesses. Thank you for coming in to meet with us on this very important bill.

Witnesses all have five minutes per individual, or group, to make opening remarks. If you are a group, you can split your time in any way that you choose, and I will give you a 30-second notice. I'll just say it, so you don't have to look up from your notes to see if I'm holding up a card. When you have 30 seconds left, I will give you a signal, and you can wrap up.

Our witnesses today include, as an individual, Philip Palmer. Oorbee Roy is a digital content creator. Pierre Trudel is a professor at the Université de Montréal, and Timothy Denton is chairman of the Internet Society Canada Chapter.

We'll begin with Mr. Palmer, for five minutes, please.

[Philip Palmer, As an Individual]

Madam Chairperson and honourable members, it is an honour to be able to speak to you today and to address C-11.

For more than 30 years, I was a lawyer with the Department of Justice and held a number of senior positions within that department. One of my most memorable and rewarding experiences was to have worked on the drafting and adoption of the 1991 Broadcasting Act. In the course of that work, I became keenly aware of the policy, constitutional and regulatory issues surrounding broadcasting.

Broadcasting regulation is a regulation born of scarcity. Radio waves were and remain a scarce resource. Initially, few persons could be licensed to broadcast to the public. A limited number of licensees meant that a broadcaster could potentially abuse its communications power to manipulate and abuse the public opinion. This, in turn, led to a form of comprehensive broadcasting regulation.

As the carrying capacity of cable increased over the years, the scarcity argument for broadcasting regulation weakened. It was our belief, back in the late 1980s and early 1990s, that in a 500-channel universe, comprehensive broadcasting regulation would no longer be necessary.

We now live in the Internet age. The Internet is not limited to 500 channels. It has virtually unlimited capacity to permit every form of communication and permit any member of the public to hear an extraordinary diversity of voices. Canadians operate 160,000 channels on YouTube alone. There is no scarcity on the Internet.

Given the bounty of content on the Internet, it is both counterintuitive and, frankly, shocking to witness not the dismemberment of the broadcasting regulation but its extension to the whole of the Internet.

I want to briefly make four points.

First, the impulse to use the Broadcasting Act to regulate the Internet is grounded in concerns of protecting an existing industry. It has no justification in terms of protecting broader public interests.

Second, C-11 lacks a foundation in Canadian constitutional law. Internet streaming services do not transmit to the public by radio waves, nor do they operate telecommunications facilities across provincial boundaries. They and their audiences are the clients of telecommunications common carriers, which are subject to federal regulation. Netflix, for instance, in this case is no more a federal undertaking than a law firm such as McCarthy Tétrault or a chain store like Canadian Tire, both of which rely extensively on telecommunications services.

The third point is that the mere fact that some Internet services compete with traditional broadcasters is not a justification to extend federal regulation over Internet services. Looked at historically, successive forms of delivering popular culture have had their moment in the sun. There has been a progression from vaudeville to movies to radio to television to the Internet. What we see at play today is not some demonic plot by Internet interlopers. What we see is the creative destruction of capitalism. C-11 is not a solution to the problems of broadcasters, but it is an active harm to those who create and disseminate content on the Internet.

Fourth, and lastly, the issues that underlie C-11 are not the ones that can be resolved through regulations. They are largely questions of money. I believe C-11 should be focused on ensuring that the web giants contribute to Canadian programming, not on regulating them.

Thank you. I look forward to your questions.

[The Chair, Liberal, Hedy Fry]

Thank you very much, Mr. Palmer.

Ms. Roy, you have five minutes, please.

[Oorbee Roy, Digital Content Creator, As an Individual]

Hi. My name is Oorbee Roy. I'm a mother, wife, skateboarder and Canadian. I come here as an individual who's trying to make a living as a digital content creator to discuss Bill C-11 and how it affects me.

I don't have a million followers. I don't make hundreds of thousands of dollars. I am climbing my way up slowly and methodically, trying to make a living in this space.

Bill C-11 and so many parts of it are fantastic. I appreciate that the intent is to try to help Canadian artists and creators. In theory, pushing out Canadian content on user-generated platforms sounds fantastic—Yay!—but there are a few things concerning to me that should be addressed and understood.

Number one is that, as it currently stands, I don't qualify as CanCon. It is very difficult for small creators to qualify. The platform, which can only push out so much content, will be regulated and will be forced to show big media qualified CanCon 40% of the time. That means I'll have to fight against other small digital creators within that remaining 60% space for visibility.

Number two is that, if I do qualify, then as it stands, each piece of content has to be approved by the CRTC. That means I'll have to wait for the bureaucratic machine over at the CRTC to regulate my “five steps to start skateboarding” video. User-generated content does well when it follows current trends, but by the time my video is approved, I'll miss the trend and my video will bomb.

Number three is that platforms will pay into the CRTC, but I won't see a dime of that money, because as it stands—say it with me—I do not qualify for CanCon. If the platforms are redirecting that money to CanCon, then instead of putting the money into workshops or training or other professional development opportunities for creators like me, it will go to CanCon-approved media outlets.

How does that even make sense? Not only does this bill not help me. It also hurts me and actively undermines my needs as an artist. There's no language in the bill to tell me otherwise.

Frankly, I don't qualify. I'm just not the right fit. That I'm not the right fit is a story I've been told my whole life. I'm too brown. I'm a nerd. I'm too old. I'm female. I'm not feminine enough. I'm not the right demographic, but I've never been the right demographic. My voice has been suppressed far too many times. That's not an easy thing to do, because I have a pretty loud voice.

Somehow along the way, I discovered a platform that allows me to tell my story as I see fit in my own voice. Other people are indeed interested in my story. Somehow this tall, brown, old and somewhat-out-of-shape mom who skateboards resonates with people all over the globe. Authentic, inspiring, genuine content—that's Canadian content.

Listen, I've studied the algorithm at length. I don't exactly know how the algorithm works, but I do know this to be true: Every time a video of mine goes viral, which is not all the time, opportunity comes knocking. For example, the team at TikTok Canada invited me to a Canadian movie premiere of a Canadian movie, where I got to interview a Canadian actor, Ryan Reynolds. I made some TikToks about it. One of them went viral, with 7.2 million views globally—it was a good video—and guess what happened? TV stations started calling me. I signed three global brand deals. In fact, Scott Benzie from Digital First Canada helped me get one of those deals.

If my video is suppressed because the CRTC decides that someone else's content should be artificially pushed over mine, I lose my ability to get in front of my audience. That directly affects my bottom line.

The language of this bill matters. Please, sure, help—great, fantastic—but make sure the language is clear. Minister Rodriguez stated that online streamers don't contribute to Canadian culture: “[It's] very simple. Platforms are in and users are out.”

Herein lies the problem. With all due respect, the minister does not understand the language, and that can be dangerous. “Platforms” are in but “users” are out. My husband, who watches skate videos, is a user, whereas I make a living on the platform as a creator. Without creators, there is no platform for users to watch. To me, then, he's saying that platforms, and by extension creators, are in, but users are out. That's what's concerning to me. A lack of understanding leads to a lack of clarity. Please make it clear or leave that section out.

I want to thank you for taking the time to listen to me. I literally have never gotten a seat at the table—except now, as a digital creator, I'm getting a seat at the table. Representation matters. If I, as a 47-year-old South Asian mom, can earn a living as a skateboarder, then literally anything is possible. Please don't suppress my voice.

Thank you.

[The Chair, Liberal, Hedy Fry]

Thank you very much, Ms. Roy.

Now we're going to go to Professor Trudel for five minutes.

Go ahead, please, Professor.

[Pierre Trudel, Professor, Université de Montréal, As an Individual]

Thank you, Madam Chair.

Members of the committee, colleagues and fellow participants, good morning.

I am a professor of law at the University of Montreal and, since 1979, I have taught the Broadcasting Act. I participated in the drafting of the new Broadcasting Act of 1991, including as research director of the Caplan-Sauvageau Task Force, which was responsible for the current version of the Broadcasting Act.

The purpose of Bill C‑11 is to ensure that all undertakings engaged in the business of broadcasting and distributing programming by means of the Internet or otherwise operate in harmony with the requirements of Canadian broadcasting policy, which is set out in section 3 of the Broadcasting Act and which the bill in fact proposes to amend and supplement. By proceeding with this long overdue update, Parliament will be engaging in a necessary catch-up exercise in the development of the legislative framework for the broadcasting of audiovisual creations, which are increasingly dependent on online environments.

This upgrade is essential to ensure that our communications system functions as a conduit that carries information of all kinds, and also gives Canadians the effective opportunity to choose programming or to produce and broadcast programming that reflects the rich diversity of our society and the existence of Canada's official languages and the languages of indigenous peoples.

Since 1991, the Broadcasting Act has had very clear provisions prohibiting the CRTC from making decisions that would violate freedom of expression. It is unfortunate that because of unsubstantiated allegations that the proposed amendments to the Broadcasting Act may result in regulations that would infringe on freedom of expression, the legislation has ended up with all sorts of exclusions and supposed clarifications that only make the text more cumbersome.

Nonetheless, the wording that Bill C‑11 proposes for paragraphs 3(1)(q) and 3(1)(r) of the Broadcasting Act is to be welcomed. These additions explicitly address the need to promote the discoverability of Canadian works. In this sense, the legislation adjusts Canadian broadcasting policy to the context of online environments.

On the other hand, subclause 9.1(8) that clause 10 of Bill C‑11 proposes to add to the Broadcasting Act, as drafted, would introduce an unnecessary and dangerous exclusion. This subsection removes the ability of the CRTC to require or regulate the use of particular computer algorithms or source codes.

Taking away this ability of the CRTC to mandate the use of technological tools that are consistent with the ways in which online environments operate would paralyze the regulator's action. It would be forced to limit itself to the tools of the past in order to regulate future technological situations.

In my view, there is no rational reason to exclude the possibility of imposing the use of software tools to ensure that undertakings operate in accordance with the principles and objectives of Canadian broadcasting policy. I remind you that that policy aims to be inclusive of minorities, such as persons belonging to racialized groups and sexual minorities, as well as to ensure the place of indigenous peoples in the overall system.

I will conclude by saying that to ensure the transparency of the act, it would also be appropriate to ensure that the making of orders by the CRTC under clause 16 of Bill C‑11 be subject to public hearings.

I am, of course, available for further discussion and to answer your questions.

[The Chair, Liberal, Hedy Fry]

Thank you very much, Professor Trudel.

Now I'm going to go to Mr. Denton.

Mr. Denton, I understand that you have a different type of headset, so let's hope it works. Please unmute yourself and go ahead for five minutes.

[Timothy Denton, Chairman, Internet Society Canada Chapter]

Thank you.

Good morning, ladies and gentlemen. Thank you for asking us to appear.

I'm Timothy Denton, and I'm chairman of the Internet Society Canada Chapter. Its membership consists largely of former regulators and senior public servants, Ph.D. candidates in communications and professors, together with others interested in communications policy from a pro-Internet perspective. Every branch of the Internet Society is independent of every other one, and all rely on voluntary efforts.

My background is in telecommunications and broadcasting law. I'm a lawyer by training and I have a master's degree in law and communications from the University of Ottawa. I worked at the CRTC in the late 1970s and later I was policy adviser to the minister of communications in the period when we developed the Broadcasting Act of 1991.

Possibly more important, I've also been on the board of the American Registry for Internet Numbers and the Canadian Internet Registration Authority, as well as participating in various bodies that form part of the Internet Corporation for Assigned Names and Numbers, which is known as ICANN.

I found that, by listening carefully to the engineers and technologists, I learned a great deal about how the Internet works and what its basic features are. I served as a national commissioner of the CRTC under chairmanships of Konrad von Finckenstein and Jean-Pierre Blais from 2009 to 2013.

One of the strangest experiences I had was to come back to the CRTC after a gap of 30 years to find that the mentality had not changed since I'd been there in 1979. The Internet was still referred to as “new media” despite the fact that the Internet had taken shape in 1974. People would go home to watch Netflix but the phenomenon they were watching had no bearing on their jobs. It was as if by casting a magic spell over the Internet by calling it “new media” they could capture it for Canadian broadcasting regulation. In fact, this is the essence of our critique of the new Bill C-11.

There is a fatal ambiguity at work in Bill C-11. It is spoken about as if it were an act to modernize broadcasting law. If that were so, then the act could work by subsidizing Canadian TV productions out of streaming revenues. Various speakers before you, such as Peter Menzies and Michael Geist, have spoken to this effect.

It is the contention of the Internet Society Canada Chapter that the ambitions of government as expressed in this bill are much wider.

The language of Bill C-11 has so defined the word “program” to include any moving images or sounds or sounds and moving images. It has so defined the CRTC's regulatory authority that it covers anything that might engender revenues directly or indirectly. The chairman of the CRTC observed recently that the bill would give the commission authority to regulate user-generated content.

Broadcasting is a form of communication that requires government licensing or regulation. The Broadcasting Act contains very severe penalties for broadcasting without a licence. The act lays out hundreds of thousands' and millions of dollars' worth of fines. Bill C-11 maintains this in its entirety.

By contrast, think about writing, speaking or printing. You do not need a government licence to pick up the phone and talk, nor to write an email. The regulation of speech takes place after one has spoken, not before. Unique to the 20th century, broadcasting reintroduced the idea of the need for prior government permission to be able to communicate using specific technologies. This made sense when broadcasters used airwaves with early radio technology. When very few spoke to millions, there was strong argument for regulation of broadcast speech.

Make no mistake. This bill as written is about speech controls when talking using audio or audiovisual means across the Internet. Indeed, by the expansion of this logic in Bill C-11, the government might just as well define email and talking on the phone as broadcasting.

BillC-11 could be better retitled from online streaming to an act for the regulation of communications across the Internet. It would be a more honest and accurate title.

Thank you. I await your questions.

[The Chair, Liberal, Hedy Fry]

Thank you very much.

Now we're going to move to the question-and-answer part of the program.

Clerk, I see a Mr. Généreux. Is he a witness?

[The Clerk of the Committee, Ms. Aimée Belmore]

No, Madam Fry.

[John Nater, Conservative, Perth—Wellington, ON]

Madam Chair, that's our colleague Bernard Généreux, MP for Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, a wonderful Quebec colleague.

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

I will endorse that. He's a fine gentleman.

Welcome to the committee.

[The Chair, Liberal, Hedy Fry]

Thank you very much, Mr. Nater.

Mr. Généreux, I did not recognize you. I'm very sorry.

We will begin with the question-and-answer part. It's a six-minute round. The six minutes include questions and answers. Please, everyone, try to be as succinct as you possibly can.

We'll begin with Mr. Nater for six minutes, please, from the Conservatives.

[John Nater, Conservative, Perth—Wellington, ON]

Thank you, Madam Chair.

I'm tempted to ask my questions of Monsieur Généreux to start off, but we'll put him on a hot seat another time.

I want to start with Ms. Roy and ask a few questions about you and your work. I have to admit that I may take more than five steps to learn how to skateboard. I don't think I can do it in five steps. Maybe, with time, I might be able to.

I want to talk about how you develop your content and how you export it and get it out there. Where do your creative influences come from that allow you to create these skateboarding videos? How do you export that and expose it to the world?

[Oorbee Roy]

Thank you for that question. I appreciate it. I think that was a plea for me to teach you how to skateboard, so I accept.

To answer your question, I take my cues from the platform itself. There are trends that go on. There's a certain way that I find the algorithm works. You have to do hooks or a trending sound. I have a certain amount of content that I want to push out there. I know what the five steps are to get you to start skateboarding, so I kind of combine the two.

I do everything myself. I have an iPhone. I go out in my backyard. I shoot a video. I make my kids watch it to make sure I'm not making a fool of myself, and then I publish said video. Some of the videos do well; some of them don't. I don't care. They don't always have to do well. That's kind of how it goes.

There's a certain formula where you can get more views versus fewer views. That's kind of what I do.

[John Nater, Conservative, Perth—Wellington, ON]

Thanks for that. I'm sure my kids would also make fun of me for trying to skateboard. I might take you up on that offer to learn to skateboard.

Stemming from that, talking about how you earn revenue and try to make a living online, part of the terminology in the bill of the exception to the exception of the exception to exclusion refers to direct or indirect revenue. I was hoping you could expand on your example of that very idea, how you earn direct and indirect revenue doing what you do online.

[Oorbee Roy]

Sure. I have brands that reach out to me. I either say yes or no to these brands to showcase their products in one of my videos. I try to be authentic in all of them, so I don't always say yes. They pay me based on the number of views I get. If I were a creator who has millions of followers, I would get paid more than a creator like me who has about 100,000 to 200,000 followers. I set a price, and they either say yes or no. I publish a video using their product, and then they pay me.

[John Nater, Conservative, Perth—Wellington, ON]

I have two more questions. I'm going to ask them together, just because I don't want to run out of time here.

First, you mentioned about qualifying as CanCon or not qualifying and not being able to access.... I just wanted to confirm that you haven't been able to access any federal funding up to this point in terms of the Canada Media Fund or the Department of Canadian Heritage for any of your work? That's the first question.

The second thing is just a confirmation from you. You talked about the minister's statement that platforms are in and users are out. If we were to clarify the language to confirm that creators, people who use the Internet to upload their content, user-generated content, were clearly excluded within the bill, would that be something you think would be helpful to creators like you?

Those are two questions. I know I'm putting a lot in there, but could you address those? Thanks.

[Oorbee Roy]

So far, I haven't received any funding from anyone. I don't qualify. I'm an athlete, so I don't qualify as an artist. I'm not incorporated, so I don't qualify for CanCon. I haven't received any funding to date from anyone. I've been paid, but I haven't received any funding.

I would like help. I'm just a mom who's skateboarding in the backyard. I would love the help. I think if the language was made clear and it would actually help me, I'm not going to say no to that, because I'm trying to earn a living.

[John Nater, Conservative, Perth—Wellington, ON]

Thank you so much, I appreciate that.

I want to turn to Mr. Palmer and use some of your expertise as a justice department lawyer for several decades. You wrote an article in relation to the former Bill C-10, called “C-10: An Unconstitutional Power Grab”. One of the lines used in there was:

Years of litigation and uncertainty will be the inevitable result of the legislative overreach of the federal government under the guise of broadcasting legislation.

I want to ask you whether you believe this is still applicable to the current Bill C-11 and what you foresee happening in the months, years and decades to come after the implementation of this bill? What types of challenges do you see from a legal standpoint or a constitutional standpoint going forward?

You touched on it a bit in your opening comments, but if you could expand on that, I'd appreciate it.

[Philip Palmer]

First of all, there is nothing that distinguishes Bill C-11 from Bill C-10 in terms of the constitutional issues that are raised, and there's nothing that makes Bill C-11 more constitutionally acceptable.

The uncertainty that this is going to lead to is that it will hang over the system until the Supreme Court has spoken. The question is really, who is going to then challenge federal jurisdiction over broadcasting? I can't predict who that will be, but it's likely to be some Canadian domestic player that has enough means to finance itself, but not enough means to.... I don't believe the large players are going to be the people who are going to challenge.

[The Chair, Liberal, Hedy Fry]

Thank you, Mr. Palmer. We've run out of time.

We'll now go to the Liberals and Anthony Housefather for six minutes, please.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you very much, Madam Chair.

Thank you to all of the witnesses for being here today.

Mr. Palmer and Mr. Denton, you're both affiliated with the same organization, so I think I'm going to go to my fellow McGill law grad, Mr. Denton, first.

I understand what you're arguing, essentially. It's the application of the Broadcasting Act to online streaming services, which you believe is unconstitutional, as it goes beyond federal power and is contrary to the charter.

Could you refer me to the case law that would substantiate that? Please give me the cases.

[Timothy Denton]

Mr. Palmer is the appropriate source of authority for this proposition. I will simply say, having followed the AGT cases, that an organization is not made to be federally regulated because it uses federally regulated services. Mr. Palmer will have the answer more precisely.

[Anthony Housefather, Liberal, Mount Royal, QC]

Mr. Palmer, could you refer me to the case law?