Senator Housakos: I always say: Have faith in Canadians’ choices and in their abilities. That is why it is so unfortunate that the government bungled this by turning it into an internet regulation bill rather than a broadcasting reform bill.

Minister Rodriguez, along with former Senator Dawson and the government leader, Senator Gold, love to say that when it comes to regulating user-generated content, “Users are out, platforms are in; trust us.”

Colleagues, there are no platforms without users. I’ve said this a thousand times, and I had to learn it myself during the study: Platforms are just an empty shell. They’re just a service that is provided to Canadians who want to use it. That could be individual journalists, media companies and even us politicians. When we export using these platforms, what we do here, we use them as a forum to communicate with as many people as possible in order to propagate our work. What is wrong with that? At the end of the day, are we going to call these platforms and say, “You owe us part of your revenue because we’re content producers”?

Where do you draw the line? When does a government step in to pick who wins, who loses, who gets punished for their success and who gets rewarded for their failure? When you regulate these platforms, you regulate content and you regulate the users.

That’s what this debate is all about. We know that this bill is about regulating the platforms. As I said, platforms are user‑generated content producers and digital-content producers — which are, again, Canadians.

Basically, the government is saying that it will regulate bookstores but not the books or authors. How ludicrous is that? The government is saying, “We’re going to regulate the platform, but — trust us — users won’t be affected whatsoever. We’ll ask the platforms for a desired outcome. Obviously, the only way to have the desired outcome is to force users to manipulate their algorithms in order to give us the outcome we want. But don’t worry; trust us.”

Most of us work with governments in good faith, but those of us who have been here for a long time recognize that unless you get it in writing, you will always be disappointed down the line.

I go back to the goodwill gesture on the part of the Canadian Senators Group to include an observation in the bill. Senator Quinn, I’m telling you that 6, 9 or 10 months from now, when we don’t get the outcome we want from the CRTC or Canadian Heritage, nothing in this bill gives us any remedy to solve this problem and the outcome will be very dangerous.

The amendment that this chamber put forward to protect digital creators in this country and to protect consumer choice in controlling their own feed was not perfect. Many of you know that it wasn’t perfect. However, I accepted it because I believed it was better than what we now have in the bill and what we had in the original bill. The fact that it was a non-starter for the Trudeau government makes it worthy of more pushback and insistence from this chamber.

At every turn in this debate — in our committee and in the other house — we’ve seen the government push back and not accept any concrete, written, black-and-white amendments that would protect user-generated content. That, in itself, has raised flags and concerns on the part of hundreds of thousands of Canadians who are wondering about their livelihoods and businesses — and their way of life, for that matter, because today digital communication is a way of life.

I will reiterate my grave concern for digital creators in this country as a result of this legislation. These are people from across Canada and from all walks of life. I’ve said it before, but it bears being repeated: All regions, ethnicities, linguistic and religious backgrounds have found incredible success on the internet, and they’re pleading with this chamber for their concerns to be heard and to gain some sense of security. Unlike this government, they’ve embraced innovation and the lack of barriers. They’ve done it without any government help or intervention.

Again, I will repeat the people I’m fighting for because it’s worth repeating. Darcy Michael comes to mind, for example; I mentioned him earlier. Jennifer Valentyne comes to mind; I mentioned her many times. Vanessa Brousseau is a proud Indigenous woman who expressed concern, as did other Indigenous groups, about their voices being heard and being heard in an unfettered fashion. These are the people for whom I’m so vociferously fighting every step of the way on this piece of legislation. I know they’re watching because they communicate on a daily basis. They’re hopeful that this institution will provide some added value to these stakeholders across the country.

I talked about algorithms. I talked about the impact it will have on user-generated content, and then there’s Canadian content. We went through this review of the Canadian Broadcasting Act, which, of course, is at the pinnacle point of culture in this country, and we didn’t open up the element of CanCon and the definition of CanCon. How ludicrous is that? How irresponsible as legislators?

By the way, the Broadcasting Act in this country hasn’t been opened very often. Every 30 years or so, the government has the courage to look at it. Yet, we went after the digital platforms. We went after user-generated content to, by all means, help our traditional broadcasters, which are huge corporations in this country, and there’s still no clarity on the definition of CanCon.

We’re not listening to the ordinary Canadians who feel their livelihoods are being threatened. We’re not even listening to Margaret Atwood. We’re not even listening to icons of Canadian culture. Did you hear what she said about Bill C-11? Did you hear what she said? She called it “creeping totalitarianism.” So if you don’t believe Leo Housakos and my view on this being potentially a censorship bill, is Margaret Atwood also being partisan?

Senator Housakos: We tried to move amendments at committee dealing with Canadian content, and they were rejected. They were rejected and, by the same token, it’s part of the parliamentary process. Now, again, if you don’t want to answer the question, it speaks volumes, government leader, how the government is negligent in doing an in-depth dive on dealing with Canadian broadcasting.

Hon. Leo Housakos: Honourable senators, it is an understatement to say that this legislation has been contentious. I would like to start on a positive note by pointing out two things upon which I think it is fair to say that we all agree: that the Broadcasting Act is in desperate need of modernization, and that Canada has a rich culture and incredible talent pool of artists who should be shared with the world.

I disagree with the government and some of my colleagues as to how we go about doing that without compromising the individual choice that is at the core of what is offered by the internet.

The online world is known as low to no barrier for creators and storytellers and consumers. That is what makes it so great.

It is all about options with the internet providing limitless opportunities for creators and consumers to reach each other based upon their own individual choices.

Best of all, one person’s choice does not affect the ability of another person’s choice to see content based upon their own preferences and choices. One creator’s success does not come at the cost of another creator’s success. That is the difference between the internet versus traditional broadcasting and is, perhaps, the thing that us Boomers are having the most difficulty wrapping our heads and hearts around.

That is the overarching problem with this legislation. The government and the bureaucrats who wrote the bill and, quite frankly, many of us in this chamber, continue to wrongly treat the internet as a form of broadcasting. It is far from that. It is imperative in the context of our work here that we understand the differences.

As Vivek Krishnamurthy from the University of Ottawa stated during our pre-study at committee:

There is only so much . . . spectrum available for linear broadcasting or bandwidth on a traditional cable connection, so certain kinds of restrictions on content are more justifiable in a broadcasting context than an internet . . . context.

He went on to point out that with no spectrum scarcity in the online world, an individual can watch as many cat videos as they want on a platform without affecting the ability of other people to see different content online as well.

Unlike traditional broadcasting, where there are only so many minutes in the broadcasting day and where there are only so many slots available, the slots on the internet are infinite and, as I said, one person’s success doesn’t come at the price of another person’s success, as is the case in traditional broadcasting.

Instead of modernizing the Broadcasting Act in a meaningful way to address the realities of the digital world, what this legislation is actually doing is ignoring the realities of the digital age and seeking corrective action to problems that no longer exist.

What Bill C-11 does is put limits and barriers back in place and perpetuates a system of picking winners and losers by dictating, based on factors other than individual user preference and choices, what Canadians should post and what Canadians will see. I’m not out to lunch to say that; it’s the entire point of this bill. This legislation will affect what pops up in the feeds of Canadian users — all of us. It’s the entire foundation of the bill. The government has clearly stated that as its objective and goal.

Everyone in this chamber who has spoken in favour of it has acknowledged that’s the point of this legislation. It’s to ensure that online undertakings promote and showcase content based on criteria laid out by the government through its regulator.

Instead of consumers deciding what shows up in their feeds, it will be decided by government, by bureaucrats at the CRTC and by other gatekeepers who don’t want to lose their grip on their power to pick winners and losers under what we’ve acknowledged is an antiquated structure and is failing.

In so doing, we will be taking the industries in which Canadian creators are currently thriving, and we will be dragging them back. The question is: why? If you truly believe, colleagues, like Senator Dawson claims to believe, that Canadian stories, Canadian culture, Canadian music and Canadian creators are in need of government intervention in order to thrive in the digital age, I would say you’re not paying attention.

I understand the reflex of what is supposedly the central rationale for this legislation, which is to protect our cultural sovereignty and ensure that foreign streaming companies who operate like broadcasters and make money in the Canadian marketplace “pay their fair share.”

It sounds admirable. The problem is I don’t believe it. I don’t believe it’s necessary, and I don’t believe that is the true impetus.

Echoing Senator Dawson — or perhaps it’s the other way around — the minister responsible for this file, Minister Pablo Rodriguez, would have us believe that our film and television industry is bleeding money and losing out on some imaginary windfall of $1 billion. I say “imaginary,” colleagues, because neither the minister nor his department have ever been able to provide any documentation of where that number comes from. It’s mythical, colleagues, to say the least.

That didn’t stop the bill’s sponsor once again in his remarks earlier this week giving his best Oprah Winfrey impersonation, handing out everything but cars to everybody.

It is a fact that conventional broadcasters in Canada are seeing a decline in revenue and, in turn, entities like the Canada Media Fund don’t receive the same amount of money they once did. Dollars are scarce, colleagues.

However, this notion that foreign streamers aren’t paying their fair share is as completely inaccurate as the myth of a magical billion-dollar windfall once this legislation passes. Investment in Canadian productions, Canadian culture and Canadian storytelling isn’t drying up. Colleagues, on the contrary; the investment is there. It’s just no longer taking the more tortuous and long and winding road. The gatekeepers are being cut out of the process.

I could argue that by cutting out the middle men — the gatekeepers who decide winners and losers — there’s actually more money for the artists and creators themselves. That’s not a bad thing. That should be our objective.

According to Wendy Noss of the Motion Picture Association — Canada, the organization spent more than — listen to the number — $5 billion across Canada just in 2021, accounting for more than half of all production in this country and 90% of the growth in the sector over the last decade. They hired, trained and provided opportunities for 200,000 of Canada’s most talented creative workers and supported more than 47,000 businesses in 2021 alone. This so far exceeds the footprint, colleagues, of government-supported corporations like the CBC that it should give us all pause and reflection.

Our committee was told that right now in the film industry right across Canada, there aren’t enough people to fill the jobs. Like almost every other sector, the film industry is struggling through a labour shortage.

However, despite this impressive economic footprint and success that these companies have in Canada, our government is asking them to pay more into our paternalistic system that supports domestic companies. Meanwhile, Canadian broadcasters draw benefits and protections that the foreign streamers will not, even while paying into the same central pie. Does that sound like a fair playing field, colleagues? Does that sound like a good legislative approach to broadcasting and communications?

The U.S. government certainly doesn’t think so, as outlined earlier by Senator Plett. As a matter of fact, far from backing off their concerns that this legislation is in violation of the Canada-United States-Mexico Agreement, or CUSMA, their concerns appear to be growing, and it’s being reported that it could even be a topic of discussion when President Biden makes his first official visit to Canada. That is nothing to scoff at, colleagues; this is very serious business.

If indeed the U.S. employs retaliatory measures against Canada, what industries will suffer as a result? That’s the question. We will be picking winners and losers not only in our own cultural sector but affecting other Canadian economic sectors as well.

So what is it about the outdated definition of what is or isn’t Canadian content that is so problematic?

Unlike conventional broadcasters in Canada, who have the advantage of using localized sports and news programming to count against their minimum CanCon requirements, online streamers are global undertakings and they can’t do that. Meanwhile, these streamers don’t get credit for the investments they do make in Canadian storytelling and supporting Canadian artists because the IP ownership is a determinative factor in CanCon.

If this is really about foreign streamers paying their fair share and reinvesting in Canada the money they make off the Canadian marketplace, why is it that the millions of dollars a foreign production or streaming company is willing to invest in telling a Canadian story and in employing Canadian artists, writers, actors, producers, editors, camera people and audio techs is not good enough unless they also hand over ownership of the product?

At the end of the day, isn’t it great that foreign investors from California, Paris or London want to come to Canada and invest in Canadian culture? Isn’t that an impetus? Isn’t that a success story that we need to build on?

This is notwithstanding the money they are often pouring into our economy in Canadian towns and cities. How many of our cities and regions of the country have seen direct profits because of the movie industry that’s just booming — documentaries, films, productions of all sorts right across this country — not to mention the tourism benefits because of the exposure that certain regions of our country are getting right across the globe?

This isn’t about protecting or promoting Canadian culture and Canadian artists. This is about protecting the big broadcasters in Canada. Colleagues, let’s be honest; this is what it is. And if we haven’t caught on, it’s time to catch on. It’s about protecting the status quo. It’s about those guys in the corner offices at Bell Media and at Rogers and Quebecor.

We did adopt an amendment at committee that addresses the outdated definition of what counts as Canadian content. The amendment states that no one factor, including IP ownership, should be determinative as it pertains to CanCon. I strongly urge the government to do the right thing for Canadian culture and storytelling and adopt this amendment.

Colleagues, we’ve heard during committee how we have a case like “The Handmaid’s Tale,” written by a famous Canadian author, being filmed on Canadian soil, starring Canadian actors and employing Canadian producers and what have you, and it’s not considered CanCon. Come on; Margaret Atwood is not considered CanCon? Let’s get with it.

However, that still leaves a lot of questions about the niche streamers that offer exclusively foreign content, like BritBox, for example.

It remains unclear how this legislation will impact them and, thus, what’s on offer to Canadians through streaming apps. Does this mean streamers like BritBox won’t be allowed to operate in Canada?

The answer is yet to be determined, colleagues — not by us but by the regulator, the CRTC. I don’t know about you, colleagues, but that makes me extremely uncomfortable. It’s one thing to have an independent regulator; it’s quite another thing to cede our authority and responsibilities as parliamentarians in making legislation. This is not about frameworks, like Senator Simons said yesterday in response to a question that I asked her. We’re not talking about frameworks. This is not a motion. This is legislation. This is a bill. This is far more significant than any framework.

I’d like to shift to another part of this legislation that greatly troubles me — it’s the other part of the government’s stated rationale for this legislation. They say they want to ensure access to and remove barriers for under-represented artists and creators in Canada, and who would argue against that?

Unfortunately, again, I’m not convinced that the bill — in this form — does any of that, nor are the very creators themselves convinced. That was abundantly clear throughout our committee study. We heard it from BIPOC and Indigenous creators, as well as francophone creators who also appeared at our committee. They told us that they’re enjoying great success online because it is barrier-free in ways that traditional radio and television never were. That’s almost word for word what Darcy Michael told our committee. Darcy Michael, a self-described gay, pot-smoking comedian from British Columbia, wowed our committee with his lighthearted yet earnest and passionate testimony about how much better he’s doing in the online world where he owns everything he creates versus CTV having the rights to his previous television content.

The witnesses who objected to this claim — that creators aren’t better off in the digital age — were associations and lobbyists; it was not the creators themselves but their gatekeepers, the middlemen, the ones who are at the trough, not producing art or culture — but the gatekeepers.

This brings me to the debate earlier this week following Senator Richards’ remarks. I do think there is a certain level of romanticism about how much of the role these institutional supporters have played in the success of some of Canada’s great singers, playwrights and actors. Senators rose to talk about this Canadian, or that one, who supposedly would have never risen to their level of success without government intervention and government handouts. My question is as follows: How many amazing, talented Canadians didn’t make it because a gatekeeper somewhere along the way decided — for whatever reason — that they weren’t worthy or good enough for their support? We’ve never heard of those success stories, so why would we want to hold on to that system of picking winners and losers when we no longer have to?

[Translation]

Senator Miville-Dechêne, I respect the fact that things are a little different in our province of Quebec. I understand the concerns that you raised, just as I admire and respect your fierce defence of Quebec artists. I think that you raised a very important issue when you spoke about the generational conflict and Quebecers’ nostalgia for the quota of 65% of francophone music on Quebec radio. I sincerely believe that that is part of the problem with this bill. It tries to re-create something that worked in the past but that no longer applies in the digital age.

You spoke about young Quebecers who no longer listen to local artists. Perhaps they don’t listen to the ones we know, but that doesn’t mean that they aren’t listening to Quebec artists simply because they aren’t the ones in our preferred data set. It also doesn’t take into account all of the people around the world, outside Quebec and Canada, who now listen to Quebec and French-Canadian artists.

Once again, I assure you and I repeat that I understand and respect what you’re saying about Quebec singers and musicians. I understand why the amendment you proposed to section 4 in committee makes sense in that context.

[English]

In fairness, I do think your amendment is an improvement, but I also think we could have gone a lot further. And I am disappointed that Senator Plett’s amendment earlier today — just a moment ago — was defeated on this floor. However, I did support your amendment at committee and still do today. The concern I have is that it still leaves an awful lot of discretion to the CRTC.

Part of the problem with that is while the government continually uses the catchphrase, “Platforms are in; users are out,” that’s not how the internet works, colleagues. Users of a platform are directly affected by any regulation imposed on the platform itself, especially when it comes to something like discoverability. Platforms are empty shells. They’re just highways. The beef and the meat are always filled by the digital‑first content producers — the Canadians right across the country that provide content on those platforms.

The other part of the problem is that I’m not convinced the regulator is hearing it — no matter how many times the government says it. You may recall this very telling exchange between Senator Wallin and then-chair of the CRTC Ian Scott when he appeared before our committee this past June. Remember, this is the CRTC that will be given full leeway to interpret and create the regulations.

Senator Wallin said this to Mr. Scott — and this is very important, colleagues:

I know that you, the minister and other officials insist that you’re not regulating user-generated content, but I think there’s a bit of parsing the words. You will regulate the platforms, and then the platforms will impose your rulings and directives, as you said. You won’t manipulate the algorithms; you will make the platforms do it. That is regulation by another name. You’re regulating either directly and explicitly or indirectly, but you are regulating content.

The response from Mr. Scott was “You’re right.”

This has become an absolutely pivotal issue, as supporters of the bill attempt to defend a provision in the legislation that clearly has much broader implications than they want us to believe it does.

Mr. Scott wasn’t alone in his interpretation, by the way; another former chair, Mr. Konrad von Finckenstein, said it too. Even when Mr. Scott and other CRTC officials appeared before committee a second time at the end of our study, they were not able to assure us that they can enforce discoverability requirements on online platforms without those platforms having to manipulate their algorithms. Lest there be any doubt that the government and the CRTC understand exactly what they are saying here and what it will mean in practice, allow me to further quote Mr. Scott during his testimony before our Senate committee:

I will give you simple examples. Instead of saying — and the act precludes this — “We will make changes to your algorithms,” as many European countries are contemplating doing, we will say, “This is the outcome we want. 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 to manipulate it to produce a particular outcome.”

That’s the former CRTC chair.

Let me repeat that last part: “I don’t want to manipulate your algorithm. I want you to manipulate it to produce a particular outcome.”

Mr. Scott is saying that this legislation allows him to say to the platforms, “We, the government, won’t manipulate your algorithm; we’ll just make you do it for us.”

Colleagues, this is serious. He is acknowledging that although there is text in the bill that says the regulator can’t force a platform to employ algorithmic manipulation, they see a way around it for the regulator. In court, we would call that a clear and recorded admission of intent.

While it’s all well and good for the government — and for us as parliamentarians — to talk about what is or isn’t intended with this bill, unless we make it crystal clear, ironclad in the legislation itself, and do our job in giving directives to the regulator, we won’t have a leg to stand on if the regulator interprets it otherwise.

The time and opportunity for Parliament to make its wishes clear are now. Now is the time to do our job. Whenever Parliament delegates — whether to regulation or another body — it loses some degree of control. If we wish to retain that control, we must make our intentions crystal clear. We must eliminate discretion by specifying the rule, or we must subject the rule or rules to parliamentary control, for example, through affirmative resolution or tabling before coming into force.

Obviously, anything we do at the statute level remains much more frozen in time, so responding to new or urgent situations is often difficult, especially if they arise when Parliament, for a variety of reasons, is dissolved. But this is the Broadcasting Act, and deciding whether particular content should be scoped in or what content should be prioritized is not something that would occur in an emergency situation.

I understand the argument that the regulator needs flexibility in some areas — but in this area, colleagues, I don’t think so. Flexibility is the entire problem with this legislation. What it needs, especially as it pertains to user-generated content and algorithmic manipulation, is clarity, certainty and no ambiguity. While I’m not convinced we seized the opportunity to fully address it with clause 4, I do believe we have another opportunity to address it in clauses 3 and 10. I believe we can do so by removing the requirement on platforms. I believe we must make it clear that individual user choice is paramount to government intervention in what we consume and post online, and that’s why I will be proposing an amendment as it pertains to discoverability.

For anyone who isn’t sure what we’re talking about when we say “discoverability,” colleagues, it’s the promotion of some content over the other. It’s a tool that allows users to discover content that is available to them through what’s often identified as a feed. Think of YouTube. We all know what that is. We’re on it often. When you watch one video on YouTube, you’ll see others in the queue where it says, “Suggested videos.” That’s discoverability. It’s done through algorithms. Typically those algorithms are tailored to put additional content in front of you for your consideration based on where you’ve already been, what you’ve watched and what your preferences are.

What the government wants to do with Bill C-11 is make sure the content that gets higher placement in your feed — in your suggested videos, for example — is based on whether they think it counts as Canadian culture, Canadian storytelling or whatever they deem to be appropriate or a priority.

It’s one thing for the government and parliamentarians to say that we should make sure that Canadian culture and storytelling are available or even to say that we want to make sure that Canadians are exposed to it. It’s quite another thing to legislate and force it down people’s throats. We are dangerously close to doing just that in this bill in order to achieve a government’s idea of what is or isn’t acceptable content under the guise of cultural sovereignty and Canadian storytelling. As Senator Richards said in his remarks earlier this week, it’s censorship passing itself off as inclusivity.

Even if you sincerely believe the government has the best of intentions and that the regulator will adhere to those intentions to the letter, what happens if they don’t? That’s the question mark. Forget parliamentarians not having any recourse. What recourse will Canadians have to say, “Hey, that’s not what the act was supposed to do. That’s not what we were told”? What should they do? Appeal to the CRTC? I’m sure it all sounds fine to those who implicitly trust large government bureaucracies. But as my colleague Senator Batters mentioned yesterday in quoting Monica Auer, Executive Director of the Forum for Research and Policy in Communications:

In terms of accountability and transparency, the problem with the CRTC right now is that it is not making its decisions public. Every year, it’s publishing dozens of decisions that you can’t see because there’s no hyperlink and they don’t publish. When we say that the CRTC is transparent, it is simply not. It is holding public hearings without witnesses. I’m sorry — you’ve been very kind to invite me — but the CRTC chooses not to invite anybody to some hearings, including transfers of ownership.

I’m particularly taken by this quote from Ms. Auer because while there’s a lot of apprehension among my colleagues about the absence of transparency as it pertains to algorithms employed by online platforms, there appears to be very little similar anxiety about the lack of transparency on the part of the regulator we’re entrusting to handle all of this. It is, shall we say, a bit rich.

While I do agree that Canadian consumers have a right to greater transparency, I don’t share in the hand-wringing over what’s behind the algorithms. The online platforms use algorithms to prioritize content for users, typically based on that user’s past consumption. Like any business, these platforms pay attention to the behaviour of their customers. They pay attention to what they like or don’t like, and they adjust what they offer to the customer accordingly. It’s like having a personal shopper who narrows your options for you based on what they already know you like instead of you having to go through all the racks. It’s called customer service, colleagues.

Senator Miville-Dechêne actually used a similar analogy about how things end up at the bottom of the barrel or the back of the closet. But I think our job is to make sure that there’s nothing in the regulation or law that impedes you from browsing through all of those racks and digging to the bottom of the barrel. Something has to be at the back of the closet or at the bottom of the barrel. I just don’t think it’s the job of the government to tell a store owner or customer what that should be, nor at what stores they should shop, for that matter. That’s social media in a nutshell — endless options, endless opportunities and companies that will tailor their product based on your preference. But you are in the driver’s seat. You decide. Nowhere in there is there a role for the government — nor should there be.

Senator Miville-Dechêne, you mentioned that you don’t know if perhaps any algorithm is influenced by a partnership between an advertiser and a platform. What if it is? So what? It happens all the time in retail, and it happens in traditional broadcasting and cultural events. As a matter of fact, is it any different than when the government is sponsoring content or providing subsidies? Is it different? It’s not. With this legislation written the way it is, an arm of the government would be compelling platforms to change the way they do business to retain customers.

We’re also interfering with the business of Canadian digital creators and we are interfering with their livelihoods. As Morghan Fortier, CEO of Skyship Entertainment — perhaps Canada’s most successful exporter of Canadian content on YouTube — told our committee, when you tamper with that, you are essentially doing the same thing as tampering with the ability of radio stations to access ratings information and to adjust their playlists or on-air talent accordingly.

Most legislators wouldn’t dream of advocating that level of interference in private sector marketing, yet that is exactly what we are considering in this bill. Why would we do that and why do we continue to impugn the motives of these companies? Why do we assume nefarious motivations on the part of these platforms when it comes to the conduct of their business that we wouldn’t assume of other businesses like radio stations or bookstores or, for that matter, that we’re not supposed to assume on the part of the government?

You said it yourself, senator. Unlike me, you don’t place blind trust in the free market. And unlike you, I don’t place blind trust in government. I’m sorry. That’s where we differ. Ultimately, I’m in favour of placing greater trust in users of these platforms to know what they want to watch or listen to or promote. I have faith in Canadians to make the choices that they want — I believe in choice — and to judge for themselves what platforms are meeting those needs. It’s an argument in favour of consumer choice and having confidence in Canadians to promote what they think is worthy of promoting.

I heard the arguments in committee by colleagues and departmental officials that there are other ways to achieve the desired outcomes without algorithm manipulation, despite testimony from creators, users, the platforms and the regulator itself saying otherwise — and despite the fact that nobody has clearly stated what all of these other means might be.

Mr. Scott, who was chair of the CRTC at the time, referenced the consultative process that would follow upon the passage of this legislation. He noted that this process would play a central role in determining how platforms could and should best achieve particular outcomes. However, for many of these platforms, there just isn’t enough screen real estate to accomplish the kinds of outcomes we are talking about without algorithmic manipulation. These platforms don’t allow the option of having tabs or drop‑down menus that allow the content to be divided into genres and thus passively promoting or showcasing Canadian content. Many don’t even have the screen real estate to have a sidebar running — like Google — with numerous videos from which to choose. They just populate your feed.

That’s the point that Jennifer Valentyne, Scott Benzie, Justin Tomchuk, Darcy Michael, Morghan Fortier, J. J. McCullough, Frédéric Bastien Forrest and so many more have all made during their testimony before our committee. Colleagues, you saw how acrimonious and divided Canadians are generationally on this bill. The government has overwhelmingly taken a side in supporting traditional cable and traditional broadcasting companies when they themselves have shown their model not to be effective anymore.

That’s not all, colleagues. The consumer experience will be further impacted by the prohibitive cost of regulating user‑generated content by ensuring discoverability in the manner described in this bill. Not only will the higher costs to the platforms be passed on to consumers but, in some cases, they could lead to some platforms pulling out altogether from the Canadian market.

That is a fact, in particular for smaller platforms that serve diaspora communities in Canada from abroad or niche streamers like the aforementioned BritBox. They may very well decide they can no longer afford the cost of doing business in Canada. The consumer experience will also be negatively impacted because they will lose trust in the system. They will be seeing more and more content that is not based on their likes and interests. While it may sound like an enticing prospect to force people out of their comfort zone, I assure you that it will have a negative impact in the long run.

Those negative impacts will be felt mostly by the very people this bill purportedly is designed to protect and promote — Canadian artists and creators. There is a risk that many consumers will tune such content out altogether. They will go elsewhere to find what they’re looking for unimpeded.

As YouTuber Justin Tomchuk told our committee about forced Canadian content:

CanCon content will perform poorly on the platforms because the audience will be mismatched with their interests. You can force a video to play, but you can’t force them to watch it. Canadians will click away and learn to actively avoid CanCon.

That is very important, because that is precisely what we’re seeing now with conventional broadcasting. Viewership in conventional broadcasting is down dramatically because consumers now have choices as a result of streaming. They no longer have to consume what’s being forced onto them. That’s not the fault of streaming platforms, nor is it an indictment of the quality of Canadian content elsewhere. How many of you, over the holidays, are watching Netflix instead of going on your local CTV broadcast or Quebecor TVA broadcast? It’s a choice. It’s your right.

Mr. Tomchuk also explained another risk for Canadian digital creators if algorithms are manipulated to satisfy CanCon discoverability. If content is promoted or discoverable based on something other than what the consumer wants to see or may like based on their previous habits, they will click on it, realize it’s not something they want to see and then quickly move on without watching to its completion. It’s called click, guys. You’re not interested? You just click. If you’re not interested, you click off. If you’re interested, you click on. This will drive down the audience retention rate on that item, and in turn the lower retention rate will drive down the global ranking, thereby driving down its discoverability.

Canadian artists and creators who are enjoying immense success globally will see their success greatly diminished in exchange for the possibility of success at home. As a recent editorial in the Financial Post put it:

Even if Bill C-11 helps them find a little more success here at home, and there’s no guarantee of that, it could be to the detriment of any success they might hope for beyond Canada’s borders.

This will be exacerbated by the threat of other countries responding to the passage of this legislation in kind and enacting their own protectionist laws that will see Canadian content blocked here at home. All of the success and opportunities that our artists and creators are enjoying as a result of the world opening up to them through the barrier-free advent of the internet will be gone. The freedom of the internet is incredibly empowering. As one witness testified, all creators face the same challenges in gaining a following, but the internet is a level playing field in terms of access.

I understand some senators felt the need to leave clause 4 in the bill to protect songwriters and singers and musicians against music labels streaming their music without properly compensating them. What I took away from our committee, though, is that those protections were already available to them through copyright in this country and through their contractual obligations, and is otherwise not something Bill C-11 should be addressing. That’s why I still believe that the right thing to do is to remove user-generated content from this bill altogether.

However, barring that, I do believe that we still have the opportunity to improve this legislation by removing discoverability and algorithm-manipulation provisions. That’s what my amendment will be focusing on.

In closing, before I get to my amendment, I just wanted to say that the Canadian entertainment and creative industries are thriving. It’s the antiquated system of delivery and, certainly, funding that’s on life support and so, too, should be the old regulatory system. It’s a system that worked well once upon a time, to varying degrees, because it was designed for conventional broadcasting that mainly stopped at our national borders. But it has served its purpose. Its time and usefulness have come and gone. It is certainly not needed when it comes to digital creators and user-generated content.

The creators themselves are telling us that. They’re begging us not to force the old regulatory regime on them. They are showing us that, unlike under conventional broadcasting, they don’t need us. What they need is for us to stay out of their way and for government to stay out of their way. They’re imploring us to look at their success and acknowledge that this success is the result of producing quality, interesting, innovative content that people want to see and hear.

If we leave discoverability in this bill, we are saying that we don’t think that Canadian creators are capable of doing it on their own. We are saying that we don’t think that what they produce is all that interesting on its own and that it won’t succeed without our intervention, especially marginalized and under-represented creators like Indigenous and BIPOC and francophone artists and creators. Frankly, it’s not only disheartening to these creators; it’s extremely paternalistic. If the goal is, as the government states, to remove barriers and ensure promotion and discoverability for under-represented creators, the answer is simple: Don’t put barriers where there is currently none. And don’t leave it to the government or the gatekeepers to decide whose content and what content Canadians should be consuming.

As stated in the Financial Post editorial recently:

If government bureaucrats get to choose what content to push on Canadians, there’s a very real risk the government will be tempted to use its filtering powers to silence its critics.

That might sound like a great idea to people in this chamber, especially in the context of what they consider to be hateful rhetoric on the internet or political views that are not appreciated, but will they be just as fond of it when it’s not a Liberal government in power in a few months?

With that, colleagues, I want to draw your attention to the existing text of subclause 3(7) on page 8, at line 31. It states:

(q) online undertakings that provide the programming services of other broadcasting undertakings should

(i) ensure the discoverability of Canadian programming services and original Canadian programs . . .

My amendment will replace the word “ensure” with “allow.” Doing so would encourage online platforms to make Canadian content available but without forcing a streamer like BritBox out of the Canadian market.

Furthermore, it doesn’t entirely remove the reference of discoverability but replaces the word “ensure” with “allow” in order to give flexibility to the platforms so that they can avoid algorithm manipulation.

The second part of my amendment affects clause 10, on page 14, in lines 26 to 30, outlining the CRTC’s obligation to regulate as follows, in proposed subsection 9.1(1):

(e) the presentation of programs and programming services for selection by the public, including the showcasing and the discoverability of Canadian programs and programming services, such as original French-language programs . . .

My amendment will remove all of the text after “for selection by the public.”

I am moving this amendment to Bill C-11 in one more attempt, in a last-ditch effort, to protect the right of Canadians to determine what they post and what they see online. It will remove for online platforms the threat of having the government or the CRTC dictate what their algorithms should be or what content should be prioritized while making other content less discoverable.

Essentially, allow Canadians their choice. Allow the system to function as Canadians want it to function, in terms of what they see, what they hear and what they post.

Senator Housakos: Senator Simons, I’m a little confused. You’re either for transparency or you’re not. The problem we have had over many decades is that the CBC, when it comes to dealing with certain aspects, is taken away from the realm of good governance and the board, and they are managed directly by the minister’s office and whoever the CEO is, who has been appointed by the minister’s office to begin with. The Broadcasting Act is the exact place to protect taxpayers’ money.

What would be the hesitation, if we believe in transparency, putting it crystal clear in this revamped, modern and renewed Broadcasting Act to make sure that the CBC — which is funded completely by taxpayers’ money — will be transparent like every other government agency?

Senator Housakos: Senator Dawson, will you agree that at that same study we had at committee, the former chair of the CRTC, when he came before the committee, made it clear he has authority under the old Broadcasting Act and the current piece of legislation to force platforms to manipulate algorithms in order to get certain results when it comes to user-generated content? Is that true?

Senator Dawson: I don’t want to repeat what we did during the two-and-a-half years that we have been debating this issue in which people have been trying a little bit of fear-mongering by saying, “We are going to take away the right of people to create, and the right of people to express themselves.” This is not the objective of the bill. It never was. I don’t know how many times we have to tell you, Senator Housakos, that is not going to — I am trying to be creative, and — I know there was a strong political objective on your part — and everybody here knows that it was a very good fundraising period for you to go on television and talk about this bill — but the reality is that you have been raising issues that are not true for Canadians in that bill. I am sad to have to say that, in the last few weeks of being here, it is the first time I have seen you in such an approach — because you have always been quite transparent on what you do — but, on this bill, I don’t know why you decided to be very aggressive. As chair of the committee, you certainly did not — and we accepted every person you asked us to listen to. We accepted every digital creator that you put on our list. Every single last one of them came to committee, and we kept telling them, “Somebody told you this, but it is not true; you are not going to be controlled by this bill.” You can continue saying it again, but it is still not going to be true because you will repeat it in your speech later in the week.

Hon. Leo Housakos (Acting Deputy Leader of the Opposition): Honourable senators, as I begin my remarks on Bill C-11, I’ll probably surprise many of you by agreeing with the bill’s sponsor, Senator Dawson, that the Broadcasting Act is absolutely in need of modernization. And we must do so, to quote Senator Dawson:

. . . in a way that appropriately considers the technological realities, business models and dynamics at play in the current Canadian broadcasting system.

Furthermore — and this is where Senator Dawson makes an extremely important point:

The law needs to establish an updated regulatory framework with clear guidance, the necessary tools and the flexibility needed to maintain its relevance.

Colleagues, that is pretty much where Senator Dawson and I part ways on Bill C-11.

Perhaps the biggest problem with this legislation is its scope. The government and the bureaucrats who wrote this bill have wrongly treated the internet as a form of broadcasting. While there are streaming platforms that behave like broadcasters and should certainly be brought into our regulatory framework as such, this bill goes beyond that.

Vivek Krishnamurthy, Director of Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic at the University of Ottawa, explained the difference during our pre‑study this way:

The first is spectrum scarcity. There is only so much electromagnetic spectrum available for linear broadcasting or bandwidth on a traditional cable connection, so certain kinds of restrictions on content are more justifiable in a broadcasting context than an internet or print context.

He goes on to point out that there’s no spectrum scarcity in the online world and that an individual can watch as many cat videos as they want on the platform without affecting the ability of other people to see content online. Mr. Krishnamurthy takes exception to the breadth of the definition of “broadcasting” in the proposed legislation coupled with the existing legislation, saying that, “Taken together, these two provisions seek to regulate practically all audiovisual content distribution on the internet.”

I quote Mr. Krishnamurthy where he says:

We shouldn’t be enacting laws that seek to sweep so much content into a regulatory scheme. Surely there are problems with internet content distribution, but those require a different kind of response. We shouldn’t just say that everything is in except for these few things that are out.

Let’s look at the exceptions in proposed section 4. I’ve been a lawyer for the better part of 15 years and this section is about the most confusing thing I’ve ever encountered.

So while I agree with what Senator Dawson says the law needs to do, the problem is that, as written, that is not what the law would do, no matter how many times he and the government says it will — just like it doesn’t matter how many times they say this bill will give more access to and remove barriers for unrepresented artists and creators in Canada or how many times they claim this bill and the regulations that come with it won’t capture digital creators and user-generated content.

In fact, allow me to quote an important exchange that occurred between our very own Senator Wallin and the Chairperson of the Canadian Radio-television and Telecommunications Commission, or CRTC, Mr. Ian Scott, when he appeared before our committee this past June. Remember, it is the CRTC that will be left to interpret and apply this legislation.

Senator Wallin said to the CRTC chair, Mr. Scott:

I think we’re going to have to revisit the issue of user-generated content one more time. I know that you, the minister and other officials insist that you’re not regulating user-generated content, but I think there’s a bit of parsing the words. You will regulate the platforms, and then the platforms will impose your rulings and directives, as you said. You won’t manipulate the algorithms; you will make the platforms do it. That is regulation by another name. You’re regulating either directly and explicitly or indirectly, but you are regulating content.

Mr. Scott’s response to Senator Wallin’s question was, “You’re right.” So while the language of the bill is ambiguous at best, the position of the CRTC chair on this matter is quite clear and unequivocal. This has been an absolutely pivotal issue as supporters of the bill attempt to defend the provision in the legislation that clearly has a much broader implication than they want us to believe.

It hasn’t escaped my attention during our committee pre-study that witnesses, and even some of my colleagues who are taking the government’s word that user-generated content will not be captured, spent an awful lot of time pushing back on witnesses who have testified as to the negative impacts that would be felt by digital creators if user-generated content is included.

Meanwhile, the government’s insistence that there’s nothing to see here and that we should just trust them is having the opposite of the desired effect, including the swift passage of this bill.

While I agree that the Broadcasting Act is in desperate need of modernization, and I appreciate the principle that we shouldn’t allow the perfect to be the enemy of the good, I’ve yet to see justification for pushing through this bill without taking the opportunity to make it better. It is our duty as the chamber of sober second thought to do just that. I sympathize with stakeholders who feel they’ve waited long enough and have been worn down to the point that they believe this is as good as it’s going to get, but the government has no one but itself to blame for not prioritizing this and for digging in its heels on matters outside the scope of the act.

The truth is that while the impact of this bill on digital creators, user-generated content and algorithm manipulation has been taking up a lot of space here in the Senate, the opposite was true during the House of Commons Heritage Committee study in which few digital creators were given the opportunity to appear and those who did were often bullied and berated by government MPs on the committee. We’ve heard from several digital creators who appeared before our committee here in the Senate how thankful they are, not only for the opportunity to be heard but also for the dignity with which they were treated. I want to thank all of the members on our committee for that on both sides of the chamber; it is a testament to each and every one of you.

The truth is, colleagues, the study of this bill would likely be playing out very differently if not for the eleventh-hour inclusion of user-generated content in this legislation’s predecessor bill, Bill C-10. It is playing out this way because of the government’s almost hysterical refusal ever since to clearly remove it. Despite having time to address this issue when Parliament was prorogued and for several months after, the troublesome inclusion of user‑generated content remains there in black and white. The government tells us that section 4.1 excludes user-generated content from regulation. However, what they don’t tell you — and you can clearly see by reading it yourself — the very next clause goes on to put it right back in by including exceptions to the exemption. It’s a double negative, so to speak, and one that makes clear that user-generated content is in the bill.

It’s not just me saying it. It’s not just the digital creators themselves saying it. It’s not the platforms like YouTube and TikTok lining up the digital creators to say it, as the Parliamentary Secretary to the Minister of Canadian Heritage would like to claim. None other than a former chair of the Canadian Radio-television and Telecommunications Commission, or CRTC, is saying it himself, and, perhaps more importantly, the current chair of the CRTC, Ian Scott, is also saying it.

During his testimony, Mr. Scott went on to confirm something else that the government has been claiming isn’t in the bill: algorithmic manipulation. The government and Senator Dawson insisted that Bill C-11 does not force platforms to use particular algorithms. However, Mr. Scott, chair of the CRTC, testified:

. . . I will give you simple examples. Instead of saying — and the act precludes this — “We will make changes to your algorithms,” as many European countries are contemplating doing, we will say, “This is the outcome we want. 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 to manipulate it to produce a particular outcome.” . . .

Pretty clear. Let me repeat that last part. Mr. Scott is saying that this legislation allows him to say to the platforms: We, the government, won’t manipulate your algorithm. We’ll just make you do it for us. In court, we would call that a clear and recorded admission of intent.

As I mentioned, proponents of the bill have argued in committee that there are other ways to achieve the desired outcomes without algorithmic manipulation, despite testimony from creators, users, the platforms and the regulator saying otherwise.

Last week, Senator Dasko, my colleague, insisted on this position in an exchange with former television personality, now digital creator, Jennifer Valentyne. Senator Dasko was adamant that there are other ways, but when asked by Ms. Valentyne to give an example she was unable to do so.

I want to be clear here, colleagues. We aren’t talking about all platforms. We’re talking specifically about platforms that feature user-generated content like YouTube and Instagram, to name a couple.

It isn’t just users, creators and the platforms who are raising the red flag. There are also significant privacy concerns with the government’s approach which were outlined by the Privacy Commissioner, Philippe Dufresne, when he appeared before our committee. Mr. Dufresne stated:

The bill would provide the CRTC with the power to impose conditions respecting the discoverability of Canadian programs and programming services. While the bill specifies that in doing so the CRTC could not require the use of a specific computer algorithm or source code, discoverability conditions could nonetheless potentially require the adaptation of existing algorithms that rely on personal information or the analysis of personal information to determine whether user-generated content is Canadian.

The potential privacy impacts would depend upon the specific circumstances of each case, including how these powers are exercised by the CRTC and how regulated entities respond to new obligations by their collection and analysis of personal information. Given this, it will be important that these privacy implications be fully assessed and mitigated prior to the CRTC imposing these conditions.

The commissioner recommended that we adopt an amendment to clearly incorporate the protection of privacy as an objective of the act. I completely agree that this is a minimal step for us to take. Much of the approach that underpins this bill are — as I mentioned previously — “just trust us” assumptions, particularly as related to the powers of the CRTC.

The CRTC chair, Mr. Scott, referenced the consultative process that would follow upon the passage of this legislation. He noted that this process would play a central role in determining how platforms could and should best achieve particular outcomes.

It all sounds wonderful to those who implicitly trust large government bureaucracies. But as Monica Auer, Executive Director of Canada’s Forum for Research and Policy in Communications, testified before our Senate committee:

In terms of accountability and transparency, the problem with the CRTC right now is that it is not making its decisions public. Every year, it’s publishing dozens of decisions that you can’t see because there’s no hyperlink and they don’t publish. When we say that the CRTC is transparent, it is simply not. It is holding public hearings without witnesses. I’m sorry — you’ve been very kind to invite me — but the CRTC chooses not to invite anybody to some hearings, including transfers of ownership. . . .

I submit that such testimony about an absence of transparency in the CRTC should be of equal concern to us in this chamber, as it is an absence of transparency on the part of online platforms. Otherwise, it is, shall we say, a bit rich.

However, I do, in fact, fully agree that Canadian consumers have a right to greater transparency. However, we need to be cognizant of the fact that by giving the CRTC powers as are being proposed in this bill, there simply will be no outcome other than algorithm manipulation, as promised by the chair.

For many of these platforms, there just isn’t enough screen real estate to accomplish the kind of outcomes we are talking about without such manipulation, even if it is passive. By “passive,” I’m referring to having a tab or file that compiles Canadian content, for example. The problem with that is that it’s just not physically possible on some of the platforms we are talking about.

Colleagues, if you take a moment to look at your phone on an app like Instagram, you will see right away what I’m talking about. These types of platforms or apps are essentially just feeds. The only way to promote Canadian content to make sure it shows up in someone’s feed more often than something that is not Canadian content is to manipulate the algorithm. As much as the government and supporters of this bill insist that it won’t affect algorithms, for many platforms it’s completely unavoidable.

That’s the point that Jennifer Valentyne, Scott Benzie, Justin Tomchuk, Darcy Michael, Morghan Fortier, J.J. McCullough, Frédéric Bastien Forrest and so many more have all made during their testimony at our committee.

With this legislation written the way it is, an arm of the government would be compelling platforms to change the way they do business to keep their customers coming back. We are also interfering with the businesses of Canadian digital creators. We are interfering with their livelihoods. They’re asking us not to do so. They’re telling us that they’re doing quite well already, and they deserve to be left alone.

As Morghan Fortier, CEO of Skyship Entertainment — perhaps Canada’s most successful exporter of Canadian content on YouTube — told our committee, when you tamper with that, you are essentially doing the same thing as tampering with radio stations’ ability to access ratings information and adjust their playlists or on-air talent accordingly.

I’ll take it a step further: It would be like telling a bookstore they can’t use their sales information or bestsellers list to determine how many copies of a book to order, or telling them where they can or can’t place certain books in their store to optimize their sales.

Most legislators wouldn’t dream of advocating for that level of interference in private sector marketing, but that is precisely what we are considering in this bill.

Why would we do that? And why do we continue to impugn the motives of these companies, as if they’re up to something other than running a business and trying to make a profit?

Why do we assume nefarious motivations on the part of these platforms, when it comes to the conduct of their business, that we don’t assume of other businesses like radio stations or bookstores?

Just because — with all due respect, colleagues — we don’t understand it, doesn’t mean they must be up to no good. Do you know what a lot of the people who are affected by this and looking at us — myself included — are saying right now? “Okay, boomer.” That is the truth.

This isn’t an argument against greater transparency but, rather, in favour of placing greater trust in the users of these platforms and in the creators of these platforms — who know what they want to watch, listen to or promote — to judge for themselves whether platforms are meeting those needs. It’s an argument in simple favour of consumer choice.

The consumer experience will be further impacted by the prohibitive cost of regulating user-generated content in the manner described in this bill. Not only will the higher costs to these platforms be passed on to consumers but, in some cases, could also lead to some platforms pulling out of the Canadian market altogether.

Should that occur, do you know who will be disproportionately affected? Diaspora communities in Canada, because it will be the smaller platforms — that serve these communities from abroad — that will most likely decide they can no longer afford the cost of doing business in Canada.

The consumer experience will also be negatively impacted because they will lose trust in the system. They will be seeing more and more content that is not based on their likes and their interests. I get that it sounds like an enticing prospect to force people out of their comfort zone.

Who among us wishes to be force-fed? Being force-fed has never had the desired or intended impact. If anything, the more it feels like something is being forced on an individual, or a society, the less trusting they will be of whomever, or whatever, is forcing it on them. And the less inclined they will be to appreciate it or desire it. That is a fact.

That, colleagues, will become a problem for the very people this bill is supposedly designed to protect and promote: Canadian artists and creators. There is a risk that many consumers will tune out such content altogether. They will go elsewhere to find what they’re looking for — unimpeded. They will simply click and make it go away.

As YouTube creator Justin Tomchuk told our committee:

CanCon content will perform poorly on the platforms because the audience will be mismatched with their interests. You can force a video to play, but you can’t force them to watch it. Canadians will click away and learn to actively avoid CanCon.

They will just go to the section and click it away.

That is precisely what we’re seeing now with conventional broadcasting. Viewership for conventional broadcasting is down dramatically because consumers now have choices as a result of streaming. They no longer have to consume what’s being forced on them. That’s not the fault of the streaming platforms.

At some point, conventional broadcasters in this country have to accept that the product they’re offering isn’t appealing to a lot of consumers. Just look at the ratings. That’s not to say that there aren’t good Canadian products available. It’s quite the contrary.

Conventional broadcasters in this country use local sports and news to satisfy a hefty portion of their CanCon quotas. Then they fill in the rest with repeats of Canadian shows that can also be found on their subscription services, and the rest is syndicated programming from the United States, which consumers can watch from the source American network or online anyway.

That’s not a problem with Canadian culture or Canadian artists not being good enough, colleagues. That’s a problem with the current legacy broadcasting business model.

Mr. Tomchuk explained another risk to Canadian digital creators if algorithms are manipulated to satisfy CanCon: If content is promoted based on something other than what the consumer wants to see, or may like based on their previous habits, they will click on it, realize it’s not something they want to see and then quickly move on without watching to its completion.

This will drive down the audience retention rate on that item. In turn, the lower retention rate will drive down the item’s global ranking, thereby driving down its discoverability, which refers to where it appears on the “suggested for you” list that you see on platforms like YouTube.

In that manner, Canadian artists and creators — who are enjoying immense success globally — will see that success greatly diminished. In essence, we are blunting worldwide success in exchange for limited, parochial success at home.

As a recent editorial in the Financial Post put it:

Even if Bill C-11 helps them find a little more success here at home, and there’s no guarantee of that, it could be to the detriment of any success they might hope for beyond Canada’s borders.

Colleagues, there is a large world out there.

This will be exacerbated even more by the threat of global protectionism. No other Western democracy in the world regulates user-generated content in the manner being proposed by Bill C-11. However, there are other countries who are closely watching what we are about to do here.

There is no doubt that if we enact this legislation, without removing user-generated content from it, other countries will respond with similar protectionist legislation. And all of the success and opportunities our artists and creators have enjoyed — as a result of the world opening up to them through the barrier-free advent of the internet — will be gone.

For what? And at what cost?

Will we have saved Canadian culture, or will we have just made it more insular and made creators more reliant on grants and a system of gatekeepers once again picking winners and losers? Will we have provided more exposure for under-represented voices, or will we have just thrown up barriers where there currently are none?

[Translation]

I want to focus on the impact that Bill C-11 will have on francophone creators.

With Canada’s traditional broadcasting platforms, francophone artists have a limited audience. They reach francophones in Canada, most of whom are in Quebec. However, the internet has changed all that. Platforms like YouTube and Instagram give these artists a global reach. Think about the success that Damien Robitaille had on YouTube and Twitter during the pandemic. Tens of thousands of people who do not speak a word of French and who would never think about listening to a French broadcaster saw videos of him performing.

Obviously, we need to ensure that our Quebec, Acadian, Franco-Ontarian and other cultures not only survive but also thrive. However, we were wrong in thinking that digital platforms were nothing but a threat to francophones in Canada and that we needed to address that and reduce their scope.

The internet represents freedom, the freedom for a Quebecer to listen to music from Burkina Faso or for a Lebanese person to listen to the band La Bottine souriante at a New Year’s celebration. The government needs to be very careful because it would be counterproductive to Canadian culture to erect barriers around it. In any case, it is unrealistic to think that that would work.

As a Quebecer, I certainly understand that our artists and creators face a different reality and different challenges than their anglophone counterparts. I unreservedly support the principle that the federal government must play a role in promoting Canadian culture and must ensure that digital platforms become a launching pad for Canadian artists and creators, especially francophones.

Unfortunately, I do not believe that Bill C-11 is the right tool. YouTuber Frédéric Bastien Forrest had this to say:

So if we really want to place an emphasis on culture from here — Quebec, Canadian, Montreal and francophone — I would concentrate on enabling those who are already making use of these platforms to become better and get more YouTube exposure.

[English]

We’ve seen indications from these platforms that they understand that contributing to Canada’s cultural ecosystem is a requirement of doing business in this country.

One such proposed amendment would explicitly ensure that if a platform’s content is out of scope for things like discoverability, the platform itself would still be subject to the CRTC’s order-making powers on required expenditures to support Canadian culture in section 11.1. This would address the concern from the music industry stakeholders that platforms that only carried music clips, or otherwise did not carry full-length commercial music, would find a way to avoid contributing to the ecosystem.

Senator Simons has raised concerns in the committee about the necessity of including section 4 to protect against big music labels using YouTube, for instance, to stream music without paying royalties to artists. However, it was made clear at committee that’s not the case. There are already protections against that.

Music labels can only share the music of artists they represent. To do otherwise would be copyright infringement, whether on YouTube or otherwise. Furthermore, when labels share music from their own artists on YouTube or any other platforms, they have to pay royalties to their artists based on their contracts. It’s contractual. And if they breach their contractual obligations to their artists, that’s not something for Bill C-11 to address.

As it relates to our culture and our stories, Senator Dawson says that this is an opportunity to ask ourselves big questions about how we, as Canadians, are going to and want to define that. And he’s absolutely right.

Senator Dawson said:

. . . for more than 50 years the Broadcasting Act helped us share our stories. That’s how we built our strong Canadian culture, forged our Canadian identity and brought Canadian voices to the world. We want to build on this for the future, so we must recognize that times have changed.

I agree with you 100%, Senator Dawson. The problem is that this bill doesn’t recognize that times have changed. On the contrary, it is trying to replicate and revive a system that is clearly on life support if you look at legacy broadcasters — otherwise we wouldn’t be having this debate — and that’s just not feasible.

We’re talking about a system of regulation and broadcast that is in decline, and not because Canadian talent and Canadian culture are in decline. On the contrary, the Canadian entertainment and creative industries are thriving like never before. It’s the antiquated system of delivery, and certainly funding, that’s on life support. Without this pillar, I’m not quite sure it will survive.

The old regulatory system worked well to varying degrees because it was designed for conventional broadcasters that mainly stopped at our national borders. It was designed in the 1970s, but it has served its purpose, and its time and usefulness have come and gone.

It is certainly not needed when it comes to digital creators and user-generated content. The creators themselves are telling us that. They’re begging us not to force the old regulatory regime on them. They’re showing us that, unlike under conventional broadcasting, they don’t need us. Actually, they don’t even want us. What they need is for us to stay out of their way. They’re imploring us to look at their success and to acknowledge that this success is a result of producing quality, interesting, innovative content that people want to see and hear.

If we leave user-generated content in this bill, we are saying that we don’t think Canadian creators are capable of doing it on their own. We are saying that we don’t think that what they produce is all that interesting on its own and that it won’t succeed without our intervention — especially the marginalized and under-represented creators like Indigenous people, BIPOC and francophone artists and creators.

Frankly, it’s not only disheartening to these creators; it’s extremely paternalistic.

If we truly want to remove the barriers that underserved and marginalized Canadians are facing, we should start by ensuring equal access to reliable internet service across Canada, especially for communities in the North, which currently are underserved.

We should also look at ways to assist in informing artists and creators on how to produce quality content and how to upload it themselves. As a matter of fact, the very platforms that are being somewhat demonized about their algorithms, source codes and their supposed lack of transparency have testified that they are setting up accelerator programs to provide exactly that kind of education and incubation for emerging artists and creators.

One recent example of this was Google’s announcement on October 3, 2022, of $2.7 million in funding to empower Indigenous peoples in Canada, to help close the skills and education gap between Indigenous and non-Indigenous communities in this country, to re-skill Indigenous job seekers for new careers in technology. Obviously, that’s just one example, but we need to continue to encourage more of that.

But again colleagues, we heard from the creators themselves time and time again that the best thing we can do to make sure Indigenous, BIPOC, francophone and other under-represented artists and creators in Canada do not face barriers in showcasing their art and their work is to, quite simply, get out of their way.

What I fear with respect to Bill C-11 is that if it is passed in its current form, we will risk standing squarely in their way. That would be a terrible outcome.

Here I think it is useful to return to Senator Dawson’s point about the law needing to provide “clear guidance.” Sorry for over-quoting you in this speech, Senator Dawson. I agree with that insofar as I think it is absolutely necessary to amend this bill to make it crystal clear that user-generated content is out. That’s all we have to do. Let there be no doubt for anyone, least of all the persons tasked with implementing and overseeing it. And I implore the members of the Committee on Transport and Communications to deliberate on the best way to accomplish that. We need to do that.

If there is any consensus among a majority of witnesses who have appeared before our committee, it is on the importance of doing just that.

That brings us to a central rationale for this legislation: that foreign streaming companies that behave like broadcasters must pay their fair share in relation to the profits they generate in the Canadian market share. These are the streaming companies including, but not limited to, Netflix, Disney+ and Prime Video, to name a few.

This is where there is a little less daylight between what the government is proposing and what my concerns are regarding those proposals, but there is some.

It’s interesting — to me, anyway — that our committee has heard from several witnesses who are proponents of Bill C-11 but who are seeking amendments nevertheless. It is telling when even the supporters of a bill come to Parliament seeking amendments. We have seen this on other recent bills where it is far from clear that the government has listened or even properly consulted on legislation it has chosen to bring forward.

The good news is that we’re here to fix flawed legislation. As Senator Dawson says, we have an opportunity here. And I agree that we must seize that opportunity.

This bill and its predecessor, Bill C-10, have taken so long to advance through the parliamentary process, and if we’re being honest, as I said earlier, that lies primarily at the feet of this government. Regardless, it’s taken this long, so taking a little more time now to get it right is not the doomsday scenario the government would have us believe it is.

The minister responsible for this file, Minister Pablo Rodriguez, would have us believe that we are bleeding money and losing out on some imaginary windfall of $1 billion; I say imaginary because neither the minister nor his department has ever been able to provide documentation of where that number comes from.

By the way, I’ve asked countless number of witnesses before our committee. They can’t give me an answer either.

Regardless, I appreciate that an entire industry is awaiting this legislation, but I am confident that in the long run everyone in the industry and consumers will appreciate that we took the time and the opportunity to make sure that whatever changes we make to the Broadcasting Act, they will either stand the test of time or have the flexibility, as Senator Dawson himself pointed out, to adapt to a continuously evolving internet.

In this regard, I want to go back to something Minister Rodriguez claimed, and also Senator Dawson echoed, in relation to the money our broadcasting sector is supposedly losing. Yes, it’s true, conventional broadcasters are losing revenue, and, in turn, entities like the Canada Media Fund don’t receive the same amount of money they once did. However, this notion that foreign streamers aren’t paying their fair share is, at a minimum, not entirely accurate. While funds may not be going directly into these centralized kitties that our current system props up and forces artists and creators to rely on, it doesn’t mean there isn’t money on the table for Canadian artists and creators. On the contrary, one could argue that because a portion of the funds no longer goes to the gatekeepers who pick winners and losers, there’s actually more money for Canadian artists and creators themselves.

Our committee heard from Wendy Noss of the Motion Picture Association, or MPA, which includes companies like Disney, NBCUniversal, Netflix, Paramount, Sony, Warner Bros. and Discovery.

In 2021, the MPA spent more than $5 billion across Canada, accounting for more than half of all production in this country and 90% of the growth in the sector over the last decade. They hired, trained and provided opportunities for 200,000 of Canada’s most talented creative workers and supported more than 47,000 Canadian businesses.

This so far exceeds the footprint of a government-supported corporation like the CBC, which should give us all pause and a real think.

However, despite this impressive economic footprint that these companies have in Canada, we are asking them to pay more into our paternalistic system that supports domestic companies. Meanwhile, Canadian broadcasters who pay into these mandatory kitties draw benefits and protections from them that these foreign streamers will not, according to this bill. So, they will have to pay into them without being afforded the same benefits and protections. How is that fair or a level playing field?

Then there is the additional problem of the outdated definition, which the bill perpetuates, regarding what counts as Canadian content. It is twofold for foreign streaming companies. First, global undertakings operate for a worldwide audience, not just a closed domestic market. Unlike conventional broadcasters, who have the advantage of using localized sports and news programming to count against their minimum CanCon requirements, these undertakings cannot.

Second, quite plainly, they don’t get credit for the investment they do make into Canadian storytelling and for supporting Canadian artists. The example of “The Handmaid’s Tale” is often raised. It is a production that is filmed in Toronto, whose story is partly or even largely set in Toronto, that employs Canadians and was written by a celebrated Canadian author. Yet it is not considered Canadian content because the owner of the production company, the investor, is not Canadian.

That example is far from unique, yet it is a product of our outdated Canadian content rules.

Think about the millions of dollars that a foreign production or streaming company is willing to invest in telling a Canadian story and employing many Canadian artists, writers, actors, producers, editors, camera operators and audio techs not being good enough unless they also hand over ownership of the product. That is notwithstanding the money they are often pouring into the economy of Canadian towns, cities, our infrastructure, hotels and so on, yet our government has the nerve to claim that this is justified under the guise that they’re protecting and promoting Canadian culture and Canadian artists.

Colleagues, Canadian artists have never been busier in the history of this country, and it’s because of the new platforms and the new opportunities, not because of the legacy broadcasters.

The whole thing about this bill is about protecting the big corporate players in our television and film sector that are used to calling the shots under the old system and want to make sure that nothing changes under the new, modern system. That’s the biggest problem I have with this part of the bill. I’m not suggesting we just hand over the keys to streaming companies and allow them to come in here and make money hand over fist without Canadians standing to benefit, but I would like the government and supporters of this legislation to be equally clear about what the bill really protects — the status quo and the guys in the corner offices. Let’s call a spade a spade: Bell Media, Rogers, Quebecor — none of which takes into consideration that Canadian talent want to work with the best producers, writers, actors and singers in the world, nor does it consider that the best in the world want to work and collaborate with Canadians who are leaders and the best in their field. The global companies want to pay for that.

Yet we are saying that it’s not good enough. You have to pay more. You cannot benefit from the funds that you do pay.

Colleagues, it’s not common sense, and it will be more so if we don’t take this opportunity to address it, especially if we’re going to continue to say that we’re doing all this in the name of protecting and promoting Canadian stories and talent. We need to be fair, and much of what is contained in this bill is not fair.

That lack of fairness may also have serious trade implications in other sectors for Canada. The former chair of the CRTC, Konrad von Finckenstein, and other witnesses were quite clear on this when they appeared before our committee. He said:

Under the Canada-United States-Mexico Agreement, or CUSMA, such restrictions, while falling under the cultural industry exception and, thus, technically allowed, allow our partners to take retaliatory measures of equivalent commercial effect. Since most streamers are U.S.-based, you can expect that to happen.

These are serious considerations that the government has quite evidently ignored. The government sponsor and all the supporters of this bill in this chamber talk poetically about the urgent need to modernize the act in order to account for the realities of the digital age, but nowhere do I see any modern thinking or anything of the government having thought outside the box and outside of traditional habits when it comes to broadcasting.

It’s a continuation of a Broadcasting Act that is already 50 years old. What I do see is a whole lot of romanticizing about what we think works so well in the age of conventional radio and television, and I see an attempt to apply that approach to the internet. Colleagues, it doesn’t work. My kids tell me all the time that it doesn’t fit and, quite frankly, it’s out of scope.

It also does not allow for flexibility. Senator Dawson said the law requires it to be able to adapt as the digital landscape continues to evolve. A lot of what is in Bill C-11 was built around principles, like I said, from 50 years ago. Those principles no longer apply. Look at the way millennials consume information — the way they put it out and consume it — compared to how an old guy like me consumes it.

Where is the impetus in this legislation for conventional broadcasters to adapt their business models to deal with the reality of the digital age? I know the CBC in the last decade has spent millions and millions of taxpayer dollars trying to upgrade their digital capability. Why do you think that is? Because they realize their model doesn’t work anymore. Quebecor’s digital footprint is growing in leaps and bounds. Why do you think that is? Because they realize their business model doesn’t work anymore.

It reminds me so much of the fight over ride-sharing services when they first started becoming popular. The taxi industry, understandably, was upset. We all remember that. Taxi owners were overburdened with regulatory red tape with their vehicles, drivers and taxi licences — red tape that new ride-sharing services weren’t subject to and that allowed them to easily swoop into the markets and take business away from taxis. Drivers and owners were upset. I don’t blame them. They at least wanted a level playing field, but the truth is that there had to be some adjustments on the part of the taxi industry and on the part of the ride-sharing services. I resisted Uber for a very long time, but I’m not the norm. Millennials have changed the way we do things.

Certainly, regulatory obligations have reasonably been placed on these ride-sharing services, especially where passenger safety is concerned, but taxi companies have had to accept that their business model, up to that point, was out of date and they would have to change it if they wanted to compete.

Colleagues, the taxi industry had to change their ways; it was not the new technology industry having to go to the old way. That’s why, now, most cab companies have apps that operate similarly to the apps on offer from ride-sharing programs. That gives consumers more choice and flexibility, even in something as simple as the way they pay the fare. The world has changed. Even I now have an app where I order that type of service.

That sort of acceptance of the reality of the digital age and the give-and-take is something I see woefully little of in this legislation.

Consumer choice and consumer protection will be the inevitable losers if we pass this bill, but this town has always been all about standing up for the big giants. This is another example of it. This bill is not about standing up for millennials. It’s not about standing up for new platforms in a digital age. It’s not standing up about giving people more choice at a more efficient cost. It’s not. It’s trying to save some giants that we all have an affinity for, but the world is changing on them. As legislators, I do not believe we can simply stand by and permit that to happen.

I’m cautiously hopeful that many senators on our committee may see it the same way in the face of very strong testimony that we’ve heard so far in the pre-study. There’s a lot of good in this bill. I do believe that, as we adapt to the reality of online streaming, we shouldn’t compromise our values, culture and identity in allowing foreign streamers to operate in Canada. I don’t think any of us here are diametrically opposed to that. However, as I’ve outlined, I think there’s work to be done on how we achieve what we want to achieve in a fair manner, without compromising consumer choice and affordability.

Where I think we have a bigger problem is the lack of clarity around the inclusion of user-generated content. There, too, I’m confident we can achieve what needs to be done in a fair manner, without sacrificing the enormous successes of so many Canadian digital creators who are enjoying this both at home and abroad, and without compromising consumer choice and affordability, which is fundamental. I’m cautiously hopeful that our committee will send the government a strong message and vote to fix flaws in this legislation and substantially improve it. We’ve waited decades and decades to deal with the Broadcasting Act, and we have an opportunity to fix it in a non-partisan, transparent fashion, because at the end of the day, we’ve heard from so many stakeholders who have come before our committee, and very few think this bill is fine as is. Even those who support the principle of the bill, which I don’t — and I’ve always been clear about that — come with a long list of fixes that they think have to be dealt with.

Colleagues, 8 billion streams of Canadian music or podcasts are exported every month on Spotify. The top nine international markets for Canadian artists provide 7.2 streams of Canadian content for every one person in Canada. Streaming is driving record revenues for companies like Spotify, record labels and music publishing partners, now representing 77.9% of the market for recorded music in Canada.

Canadian YouTubers are amongst the top performers in the world. I met with senior executives from YouTube, and I looked at their stats. Canadians, per capita, punch way above our weight, as we do in just about everything that we engage in.

Content creators, artists, actors and producers enjoy benefits that we’ve never seen before. But colleagues, we need to encourage them, and we need to make sure that the amendments to the Broadcasting Act that we’re proposing accommodate the new way of the world, the way millennials choose to consume and express information around the world. We can’t hinder that in an attempt to protect a dying legacy broadcasting industry.

With that, colleagues, I’m pleased with the opportunity to have spoken, and I call the question on second reading of Bill C-11.

Senator Plett: Hear, hear.