Hon. Colin Deacon: Senator Manning, one of the concerns I have with our regulatory burden in Canada — there is so much that has been embedded in legislation that, absolutely, we know how slowly we get new legislation through this chamber.

When you embed something like that into legislation, like a certain threshold — whether or not this is needed or required in any way; I can’t speak to that — but, certainly, I’m trying to move away from that.

Have you considered options as it relates to having this threshold that you think is so important given as advice to government in regulations? The reality is, if we put a specific number into the legislation, that’s almost impossible to change. This is 30 years in the making — this change that we are seeing right now. Is that something you have considered? Is that something you have worked on and considered — any alternatives other than embedding in legislation?

Hon. Colin Deacon: Honourable senators, I rise today — with substantial trepidation, given the speakers that I’m following — to speak on Bill C-11, the online streaming act. I would first like to commend our colleagues on the Senate Transport and Communications Committee, who navigated through often competing amendments to meaningfully improve the bill that arrived in the chamber. The diligence that they demonstrated really reinforced the role of the Senate as the chamber of sober second thought.

I have thought a little bit about the fact that maybe we could consider a thorough review process in future and learn some lessons from this process as to how not to have it be quite so arduous, long and drawn-out. Nonetheless, I think our chamber has done tremendous work on this bill.

I want to focus my remarks on two points as these resulting amendments are considered both here and in the other place, as regulations are developed to implement the final legislation, and on the drafting of future legislation intended to improve the prosperity of Canadians as we rapidly evolve in this global digital economy.

First, let’s ensure that we are enabling both incumbents and new entrants, be they individual creators or companies, to earn increasing amounts of recurring revenue for the purposes of creating sustained wealth and prosperity for Canadians. The principle needs to be that we are focusing on Canadian intellectual property and exploiting that globally.

Second, let’s begin to develop some regulatory agility as we enable Canadian companies and innovators — in this case, those in the audiovisual and creative sectors. Let’s make sure that they can become increasingly globally competitive as technologies and business models continue to evolve from today.

I do not have a magic bullet that will offer instant, simplistic solutions — like a great little line I heard a few times a moment ago. But I am absolutely certain that focusing on these two priorities will help to ultimately uncover important and actionable opportunities that will benefit Canadians over time.

Let me speak to my first point, and that is the need to intensely focus on creating the conditions necessary to generate recurring revenue from Canadian-owned intellectual property. One of the objectives of this bill is to “serve the needs and interests of all Canadians . . .” through “its programming and the employment opportunities . . . .”

In my second reading speech on the previous iteration of this bill — Bill C-10 in the last Parliament — I asked the Transport Committee to consider how we can ensure that our regulatory frameworks and other policy tools ultimately incentivize the creation of content and assets that generate recurring revenue for Canadians. Colleagues, you’ve heard me speak in this chamber about the importance of commercializing intellectual property here in Canada. If we want to turn our knowledge and creativity into jobs, opportunities and prosperity, a top priority must be to own in Canada and globally commercialize from Canada the highly creative assets that are globally competitive. If we do not succeed, we risk becoming a branch-plant economy where we just rent Canadian talent to foreign entities. As a result, our talent is paid only once to create high-value assets that generate recurring revenues for others instead of paying Canadian talent to create Canadian-owned assets that generate recurring income for Canadians into the future.

This challenge was echoed by several witnesses in the committee during the study of the bill. Michael MacMillan, co‑founder and CEO of Blue Ant Media, said:

My firm view is that an “eligible Canadian program” is a program produced by Canadians. . . . where the copyright and the use right are owned by Canadians?

Mr. Justin Rebelo, Director at the Canadian Association of Film Distributors & Exporters, also added that, “It is important that Canada does not become a solely service production industry and our system protects ownership . . . .”

Similarly, Howard Law, former director of local media unions at Unifor, wrote in a blog post that:

. . . unless independent Canadian producers retain full rights to exploit and profit from their best creations . . . they will become CanCon sub-contractors in their own land . . . .

This is a daunting risk and a crucial priority. That’s why I’m pleased to see an amendment in the bill that directs the CRTC to consider, in the regulatory development process, whether Canadians would benefit fairly from the use of Canadian programs, including copyright and other rights. This provision could provide regulators with an opportunity to apply a pro-competitive lens in the development of regulations to ensure that anti-competitive practices are considered and managed, including in licensing and distribution deals.

As a related point, it is very promising that the new CRTC chair has a strong background in competition law and policy and in fighting for pro-competitive markets. Ms. Vicky Eatrides has committed to growing the CRTC’s capacity to manage its responsibilities in an increasingly dynamic digital landscape and to applying her pro-competitive background at the CRTC. I’m hopeful that her presence also signals that there will be increased coordination between the CRTC, the Office of the Privacy Commissioner and the Competition Bureau, something that is already delivering benefits in other jurisdictions.

I won’t lament the fact that these changes are long overdue. I will just offer that any further delays will hand this new chair even greater challenges than she faces today. I wish Ms. Eatrides success as she strives to unlock the tremendous social and economic opportunities that reside in this sector for Canadians.

Now to my second point: We must be willing to iterate if we are to compete in a rapidly evolving global digital economy.

When the bill was reintroduced in revised form this session, the policy objective seemed clear. The government sought to continue its intentional strategy to protect Canadian cultural sovereignty within our broadcasting system, but now including the online sphere.

As the bill progressed, however, this objective was challenged. Many concerns were raised about this legislation by different stakeholders in the creative and audiovisual sectors, including online content creators. Many of these concerns look to have been addressed through amendments. Only time will tell their fate once they get sent back to the other place.

Industries globally must constantly innovate if they are to compete in an increasingly digitally porous world. In this global context, government needs to be a catalyst, empowering the innovation that will drive long-term competitiveness. While some progress has been made, Canada is well behind her peers in legislative and regulatory modernization and in the development of pro-competitive policies. Sadly, we have an abundance of 30-year-old legislation that requires updating.

Given this context, it is ironic that this legislation aims to incorporate new online innovations into a regulatory system that is burdened by a broadcast legacy. For example, the rapid shift towards direct-to-consumer content delivery models has revolutionized business models and forced traditional broadcasters to adapt in order to stay competitive.

Consequently, this bill is attempting to bring the disruptors into a legacy regulatory system full of those who were disrupted. This was an odd choice when compared to building an agile system that is fit for the digital era.

In fact, leading experts such as Michael Geist, Professor and Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa, shares the view that using policy instruments like broadcasting regulations for online streaming and undertakings should be the exception, not the rule.

Nevertheless, I am glad to see an amendment that will require the CRTC to ensure that our broadcasting system will promote innovation and adapt to technological changes. In this regard, it is my hope that officials can look to best-in-class global standards as models to strengthen the agility of new regulations in our broadcasting system so that we keep up and, perhaps, at some point, start to lead in the world.

Even so, creating a modern broadcasting system that will “serve the needs and interests of . . . Canadians” — a primary objective of this bill — and does so in this rapidly evolving digital era requires swift action not only in modernizing our regulatory system but also in incentivizing market-based approaches that enable Canadian incumbents and new entrants to thrive in both domestic and global creative markets.

Some of these incentives are already in place. For example, federal and provincial tax credits have made Canada an attractive destination for film and TV production. As a result, some Canadian creators — including BIPOC filmmakers — have benefitted from these program supports. However, these supply-side incentives also need to be coupled with actions to stimulate increased demand for Canadian content in these sectors, both domestically and globally. Slow action on this means we risk losing more innovative production companies like Tangent Animation, a Canadian-owned animation studio based in Toronto and Winnipeg that unexpectedly shut down in 2021, leaving about 400 people out of jobs.

Colleagues, our country is at a critical juncture. We must find ways to become the disruptors, not the disrupted. The CRTC has a lot of work to do so we have the conditions for creators to earn recurring revenues and to build a culture that is agile enough to take advantage of changes globally and not be disrupted by them.

We all want an independent, thriving, competitive audiovisual and creative industry that helps to secure our collective prosperity for future generations to come. I support this amended bill as a step in that journey down this all-important road.

Thank you, colleagues.