Hon. Paula Simons: Honourable senators, I also rise today to speak to Bill C-11, and I hope you’ll indulge me if I begin with a historical anecdote.

In 1881, the French engineer Clément Ader showed off his latest invention, the théâtrophone. Ader set up 80 telephone transmitters across the front of the stage of the Paris Opera, which allowed people to hear operatic performances at the International Exposition of Electricity some two kilometres away from the theatre. Ader, you might say, was the first person to livestream a show, the original over-the-top streamer. For context, this was 15 years before Marconi patented radio and almost a quarter of a century before radio waves were evolved enough to broadcast music.

By 1890, La compagnie du Théâtrophone was running a full‑fledged subscription service in Paris so that subscribers could listen to the latest concerts, plays and opera via their home telephones. And if you didn’t have a phone of your own, pas de problème; the company set up cheap coin-operated telephone receivers in all the coolest Paris hotels, cafes and clubs so that you could listen to the hottest new shows at your leisure, without the expense or bother of going to see them in person.

The novelist Marcel Proust was an enthusiastic subscriber. In 1911, he wrote to friends about the pleasures of listening to Richard Wagner’s Die Meistersinger von Nürnberg and Claude Debussy’s Pelléas et Mélisande from the comfort of his own home. However, eventually, the théâtrophone was outcompeted by radio — supplanted. And just as “video killed the radio star,” radio killed the théâtrophone.

[Translation]

Why this remembrance of things past?

[English]

Because I think this tells us a lot about why over-the-top streaming services are so popular today. It is human nature to want to access entertainment as cheaply and conveniently as possible, even if it means that artists and performers themselves do not get much by way of compensation. It is human nature to try to use the latest technologies and platforms to access entertainment, because we are all suckers for novelty and for the feeling that we are on the cutting edge. And it is human nature to get tired of an old technology when a new technology comes along, and then pine, somewhat romantically, for the joys of the technology we just lost.

While we cannot sustain or subsidize an older technology if no one wants to use it anymore, we often still miss the things that made it special and of its time.

And thus we come, as promised, to Bill C-11, a bill that attempts to bring international streaming services, such as Spotify, Netflix, Apple TV+ and Disney+, into the ambit of the Canadian broadcast regulatory system.

Let us start by trying to sort the signal from the noise. As my friend Senator Dasko has already assured you, Bill C-11 will not censor or regulate your free speech. It will not allow the government to take down your critical tweets. It will not allow the CRTC to micromanage your Facebook feed or curate your Tumblr. It is not a Communist plot or a conspiracy dreamt up by the World Economic Forum. It is not the work of the Illuminati.

I know that far too many Canadians believe all those things and worse, because for months now, my email inbox, Twitter mentions and Facebook page have been filled with thousands of angry and terrified messages from Canadians who have been led to believe that Bill C-11 is a full-frontal assault on the Charter of Rights and Freedoms and the fabric of Canadian democracy.

That is just not true.

I myself do not support Bill C-11 in its current form, but I am interested in analyzing its actual flaws — and there are plenty — and not in indulging in the rhetoric of political hysteria that has been whipped up around this piece of legislation and used as a bogeyman to frighten and divide Canadians. Such malicious mischief not only creates a culture of fear and paranoia, and undermines faith in Parliament, but also makes it next to impossible to talk about the actual weaknesses of the actual bill.

By the same token, Bill C-11 will not magically create a billion-dollar production fund, some instant bonanza for Canadian musicians and filmmakers. It will not offer salvation for private radio, local TV news or the beleaguered francophone music industry. Overly optimistic promises by the government have led many to believe that Bill C-11 is some kind of enchanted cornucopia — an infinite horn of plenty — that will lead to hundreds of millions of dollars of income for Canadian artists and creators.

Alas, this is just not true, especially not in the short term.

So what does the bill do? Bill C-11 attempts to bring big international streaming services, most of them American, under the remit of the CRTC. It would require Apple, Disney, Netflix, Spotify, Amazon, YouTube, Google and others to contribute monetarily and substantively to Canadian film, television and music production, and it would require them to make Canadian content more discoverable. The logic is straightforward and blunt: These companies — huge cultural behemoths — make millions of dollars in a small Canadian market. The government wants some of that money, and it wants that money to underwrite Canadian cultural industries. So, the government is simply going to strong-arm the big corporations to cough up the cash.

Now, you may not have too many tears to shed for Apple, Google, Amazon and Disney, some of the largest and most profitable companies on the planet. They can well afford to ante up, and they have the capacity in their enormous catalogues to showcase more Canadian productions. But despite Senator Dawson’s assurances yesterday, I worry that these rules may inhibit small specialty streaming services from entering the Canadian market, especially non-English-language streamers and niche arts channels. I’m not worried that ordinary Canadians’ free speech rights will be impinged, but I am sincerely worried we may be denied the opportunity to watch unique international programming because we’ve made entry into the Canadian market prohibitively expensive or complicated.

What is my second major concern with Bill C-11? As my friends have outlined, it’s that tricky issue of discoverability. What does the word mean? It’s never defined in the bill. It would be one thing if we were simply asking Netflix and Spotify and the like to create a search bar for Canadian content or to curate CanCon for our various tastes. Such static discoverability would not be a big concern. Although, honestly, who goes down to the rumpus room to watch Netflix for an hour and say, “Gosh, I feel like watching some Canadian content”? That is not how ordinary people consume television. They say, “Hmm, I’m in the mood for a romantic comedy or a nature documentary or a superhero action flick.”

No, I’m far more concerned that when the government says it wants more discoverability of Canadian content, it really means that it wants services such as YouTube, Instagram, TikTok and Apple to tweak their algorithms to privilege Canadian programs and posts. That’s where things get dicey. Those mysterious proprietary algorithms rule and organize so much of what we see online. Once the government starts trying to monkey with them, the consequences could be unexpected.

If YouTube serves up CanCon you aren’t particularly interested in and you don’t click it, you could actually be sending a message. You could be prejudicing a Canadian artist’s chances of being seen by telling the algorithm that this isn’t content that people want. This kind of online protectionism could backfire internationally and keep CanCon trapped in a kind of regional tidal pool and cultural backwater, and deny Canada’s brilliant digital-first producers a chance to compete for international attention and revenue.

I know the government has insisted this bill isn’t about algorithms, but just last June at a hearing of the Standing Senate Committee of Transport and Communications as we were conducting our pre-study, we heard something quite different from Ian Scott, the head of the CRTC.

Let me clarify some of the mud. In answer to a question posed by my friend Senator Miville-Dechêne, Mr. Scott said the CRTC would ask streamers to change their algorithms to meet Canadian content expectations. Here’s precisely how he put it:

We want Canadians to find Canadian music. How best to do it? How will you do it? I don’t want to manipulate your algorithm. I want you manipulate it to produce a particular outcome.

Fine, so the government won’t directly manipulate algorithms, but if the CRTC directs or compels companies such as YouTube to manipulate their algorithms to achieve the government’s desired outcome, it starts to become a distinction without a difference, doesn’t it?

Next comes the issue of user-generated content. Bill C-11 starts off in section 2 with admirably clear language, making it plain that the stuff we all post on our social media is not captured by the bill. Our Twitter posts, our Instagram reels, our Twitch streams are not included. That’s fine until you get deeper into the bill to clause 4.2(2), where we get an exemption to an exemption: one that appears to scope in larger producers and posters who are monetizing their content.

The government and the CRTC insists that language is only meant to capture the really big producers, such as major record labels who post their utterly professional music videos to YouTube. Unfortunately, that’s not what the bill actually says. It talks instead about people who are monetizing their content directly, or even indirectly, and that lack of clarity has led to justifiable confusion and concern that successful independent Canadian digital producers who use YouTube or Twitch or TikTok to reach global audiences could indeed be scoped in, captured and treated like Sony and Disney.

Canadian Heritage estimates that some 50% of YouTube content may well be produced by major commercial players who are more akin to Netflix or Spotify. We need to have clearer language and thresholds to ensure that people who are small independent artists won’t lose the unique flexibility of YouTube, TikTok or Instagram to distribute their content to Canadian and global markets.

In short, I have problems with the cultural paternalism of the bill with the government’s somewhat antiquarian belief that we should be induced to consume CanCon because it is good for us, and not simply be allowed to embrace CanCon because it’s good. I have problems with the technical aspects of the bill which may actually be counterproductive and undermine new and emerging Canadian artists in their ability to reach international markets. And I have even more problems with the conspiracy delusions and wild hysteria whipped up around this bill that are keeping us from having a meaningful public policy debate about how we best encourage and enhance Canada’s cultural industries without hamstringing their unique potential.

I’m happy to say that our Transport and Communications Committee has already begun a thoughtful pre-study of this bill. I hope we will soon be able to turn that into a formal study so that we can bring back to this chamber for its consideration an amended bill that truly supports Canadian culture and respects the nature of technological change and human nature.

Thank you, hiy hiy.

(On motion of Senator Downe, debate adjourned.)