Canadian Heritage Committee on Nov. 29th, 2022

[The Chair, Liberal, Hedy Fry]

The one from Mr. Housefather we just voted on.

[Rachael Thomas, Conservative, Lethbridge, AB]

Okay. Then when appropriate, I would wish to speak to the amendment as amended.

[The Chair, Liberal, Hedy Fry]

All right. On the motion as amended, go ahead.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

I have a quick question for the officials, just to make sure we understand this section.

Paragraph 19(1)(b) in the bill as it stands says that it has to be done “within a period that the Commission considers reasonable”. I'm just curious as how that would be determined.

[Thomas Owen Ripley]

Thank you, MP Thomas.

If I've understood the question, right now the bill as drafted specifies that it's a period that the commission considers reasonable. That would be in respect of the CRTC's impression of how the mediation and bargaining sessions are going. The bill as drafted intended to leave that to the discretion of the CRTC to move things along, basically, when the CRTC was of the opinion that the parties had exhausted bargaining and exhausted mediation.

MP Julian's amendment would change that and would specify a definitive period of time for each step of that process.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

How common is this term “considers reasonable”, then, versus defining that period of time, which is the language of the amendment on the table? I'm wondering how that compares with other legislation of this nature. Is it common that we would use language like that and allow it to be up to the governing body, in this case the CRTC, to determine what that reasonable time frame looks like, or is it more common in legislation that there is a defined period of time, as Mr. Julian has proposed?

[Thomas Owen Ripley]

The example we have is that the CRTC does oversee this kind of bargaining framework in the broadcasting system. There they do have a degree of discretion, again, to manage that process.

In part, the government drafted the bill as it stands because you could hypothetically have a situation in which it's very clear that one party is not interested in bargaining or one party is not interested in mediation. Therefore, it would be open to the CRTC to move the process along more quickly. That's why it was left in. There was a degree of discretion for the CRTC in being able to kind of read the state of the negotiations and move things along when it made sense, given the positioning of the parties.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

[The Chair, Liberal, Hedy Fry]

Go ahead, Kevin.

[Kevin Waugh, Conservative, Saskatoon—Grasswood, SK]

Madam Chair, I am concerned.

Mr. Ripley, as you know, the CRTC has taken their time on many licences with radio and television. I'm just a little concerned on this, because I'll give you a recent one: The CBC licence took far longer than it should have.

Are we getting bogged down when this kind of thing comes to the CRTC? We're expecting, as it says here, a limited amount of time, and yet, as we've often seen with the CRTC, it can take months if not a year or two longer to do these mediation processes. Am I wading into something I shouldn't, or am I reading the CRTC correctly from what I've seen in the past number of years?

[Thomas Owen Ripley]

Thank you, MP Waugh.

Through the chair, indeed the government wanted to signal that it's not open for these processes to run on forever. That's the language about a “reasonable” period of time. It's to indicate that the CRTC is under that obligation to move things along.

I would also note that the CRTC does have regulation-making powers to provide a degree of additional clarity on the process in the bill.

[The Chair, Liberal, Hedy Fry]

Go ahead, Ms. Gladu.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Thank you, Chair.

If I understand, then, I would like to have a defined period of time rather than leave it to the CRTC, but if at any of these steps people went over time when they were making good progress but things happened, such as people getting sick, if both parties agreed, they could request an extension of that period for that step. Then they would be all set to move forward.

Am I getting it?

[Thomas Owen Ripley]

Through the chair, thank you, MP Gladu.

That is correct. To our understanding of new subclause 19(1.1), if they are on the cusp of a breakthrough in a mediation session, for example, and they need a few more days, if they are both in agreement, they could request going beyond the period specified in MP Julian's amendment.

[The Chair, Liberal, Hedy Fry]

Seeing no other hands up, I shall call the question.

(Amendment as amended agreed to: yeas 8; nays 2 [See Minutes of Proceedings])

[The Chair, Liberal, Hedy Fry]

NDP-10 is carried as amended, so that means BQ-2 shall not be voted on.

We go to CPC-15, and we have Mrs. Thomas.

[Rachael Thomas, Conservative, Lethbridge, AB]

With CPC-15, basically the idea is to consider both sides of the negotiating process. There are two entities that are being brought to the table, the DNI and the eligible news business. They are entering into a negotiation, and of course coming to an agreement with regard to the value of news being spread or shared on these platforms.

This amendment asks for true negotiation to be engaged in, which means that both sides of the coin get to be considered. If there is value that is added to the DNI, value gained because the news source is being offered, that is one side. The other side is that if the DNI is offering value to the news source, then that also should be considered. That currently is left out of this legislation.

Again, it looks to truly create an opportunity for bargaining that is not a one-sided negotiation but rather a two-sided negotiation.

I'll leave it there for now, but I do have questions for the officials.

[The Chair, Liberal, Hedy Fry]

Thank you.

Go ahead, Mr. Bittle.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you so much, Madam Chair.

We've discussed this aspect of Bill C-18 a lot. It allows parties to reach deals that focus on the use of the content and benefit them both. This amendment, we believe, narrows the scope of what compensation is. We think this may actually lower the value deals for publishers. We've been clear that it's not for the government to determine the conception of value; it's for the parties to come to the table and negotiate on what value is.

Like previous amendments we've seen before this committee, this amendment only benefits the platforms and foreign tech giants. Unfortunately, time and time again, as we're slow-rolling through this bill, the Conservatives seem to want to give platforms the ability to tell news organizations how much they'll get.

I think the rest of the parties have demonstrated that we believe we need to rein in foreign tech giants. It's unfortunate that there's one party here that doesn't share that belief.

[The Chair, Liberal, Hedy Fry]

Thank you, Mr. Bittle.

I don't see any other hands up.

Mrs. Thomas, did you want to ask a question of the officials?

[Rachael Thomas, Conservative, Lethbridge, AB]

Yes. I have one question for clarification around this amendment that's being moved.

The bill in its current form reads as follows:

The bargaining process is limited to matters related to the making available, by the digital news intermediary in question, of news content produced by a news outlet that is identified under section 30....

On phrases “making available” and “by the digital news intermediary”, I want to confirm that in this current legislation as it is stated now, there is no consideration given to the value that a DNI might be offering a news source.

[Thomas Owen Ripley]

Thank you, MP Thomas.

Through the chair, the relevant provision on the value exchange is at clause 38. Clause 38 acknowledges that the value exchange goes both ways. It says:

the value added, monetary and otherwise, to the news content in question by each party, as assessed in terms of their investments, expenditures and other actions in relation to that content;

and then paragraph( b) of clause 38 talks about

the benefits, monetary and otherwise, that each party receives from the content being made available....

Clause 38, which is relevant when we get to the final offer arbitration part of the process, recognizes that there is value that flows both ways.

The bargaining framework, as contemplated right now by the bill, leaves a degree of discretion for the parties to determine, through bargaining or mediation, what the appropriate agreement is that makes sense in light of the objectives of both parties.

It's only when you get to that final offer arbitration element that the bill is prescriptive about how a final offer arbitration panel is to come to a conclusion. Clause 19 intentionally leaves a degree of space for parties to come to agreements that make the most sense to them.

[Rachael Thomas, Conservative, Lethbridge, AB]

Mr. Ripley, just to be very clear, if clause 38 allows for a value exchange, why wouldn't that be protected or stated within clause 19?

[Thomas Owen Ripley]

Thank you, MP Thomas.

Recognizing that final offer arbitration is the final step in the bargaining process if parties are unable to agree informs, in part, the previous bargaining. Parties know that if they get to that final step, a final offer arbitration decision will reflect that value exchange.

I certainly don't want to speak to your intention on moving the motion before us, because I heard your explanation. However, when I look at the motion as drafted, I see that it speaks to “the value to the digital news intermediary of making available to persons in Canada....” From my perspective, it speaks to one element of clause 38, but it doesn't speak to the value in the news content, and then conversely the benefits derived from both parties. In my opinion, it would speak to one element of that. Therefore, there perhaps is a degree of tension with clause 38, which has a broader conception of that value exchange.

[Rachael Thomas, Conservative, Lethbridge, AB]

Am I understanding you correctly, though, that the value exchange on both sides of the coin is only mandated in final arbitration right now? It's not outlined as a part of self-initiated bargaining process. Is that correct?