This amendment brings back proposed section 4.1. It states the following:
9.2 This Act does not apply in respect of
(a) programs that are uploaded to an online undertaking that provides a social media service by a user of the service—who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them—for transmission or retransmission over the Internet and reception by other users of the service, except where the Canadian creator of a program has voluntarily chosen to be subject to the Act for discoverability purposes; and
(b) online undertakings whose broadcasting consists only of such programs, except where the Canadian creator of a program has voluntarily chosen to be subject to the Act for discoverability purposes.
The idea behind this exemption is a compromise. This would exempt user-generated content from regulation under the act unless a Canadian creator of programs opts to voluntarily have their programs available for discoverability. This would address concerns about freedom of speech, which are also providing an option for Canadians in the cultural industry to be promoted through discoverability.
The process of ensuring that you're discoverable is fairly straightforward under the CRTC regulations. There's a point system where you determine whether the producer, the director or the actors are Canadian. It's a six out of 10 score. It depends on a number of factors—where it's produced, who is involved with the production—for film and television. With the MAPL system, it's fairly straightforward. MAPL stands for music, artist, performance and lyrics. You need to fulfill at least two of those criteria to be eligible for Canadian content.
I feel that this is a compromise. It respects the freedom of speech. It doesn't deal with the issues around algorithmic bias, which is another serious issue we need to be discussing. We have seen in recent cases, with the Red Dress Day on May 5, that family members and people posting about missing and murdered indigenous women and girls, posting about family members who have gone missing, had their posts removed by Instagram and Facebook through an algorithm. These social media platforms have their processes where they're determining what content will be pulled down and what content won't be pulled down.
There have been complaints by people in the Black Lives Matter movement, by the Indigenous Lives Matter movement, by people standing up for the rights of Palestinians or people in Crimea or other locations, and by people standing up for old-growth forests. They have had their posts removed. They've been blocked on these social media platforms. We talk about free speech, but this is not really a democratic space. It is a corporate space. It is something that we need to deal with.
I hope members of the committee will support this amendment. I think it's a fair compromise. Those Canadian content producers who do want to be subject to the act and have discoverability of their Canadian productions should be able to have that option.
Again, I appreciate Mr. Manly in the sense of bringing what he believes is a sense of compromise to deal with some of the issues that we were dealing with. I thank him for doing that.
I'm just following up again with our department. I heard two things. One was that the legislation, in the sense of amendments that have been passed.... I believe he is saying that the CRTC would view the challenge of.... They are all inclusive of all of the social media platforms and the creators. They would view that legislation as inclusive. If we adopt this amendment, it would create sort of a challenge for them to understand how they wouldn't be dealing with those who are not included. That's the first part of what I think the department was telling me.
I think the second part was that the department had a challenge trying to comprehend how the heritage department, through the CRTC, would deal with the opting in or opting out. I think that he expressed that if there's discoverability, it would be the discoverability of those who opted in and maybe not those who opted out. He had a concern. I believe he was suggesting that could arise.
Of course, that leads me to the same conclusion. If the CRTC is looking at those for discoverability more than they are of others that are Canadian, that creates the same type of process. I think the department would be somewhat stating the concern that many of us have had, which is that in doing what Mr. Manly has said—volunteering in or not—those who volunteered in with discoverability automatically would be rated higher because of that discoverability.
I think that's problematic and why we were extremely concerned that this resolution, in the sense of 4.1, will now do the same thing, which is that for those Canadian creators and culture people participating in it, there is going to be a mechanism within the CRTC that ranks and rates the discoverability of some more than others.
I think this amendment points out exactly the challenge. I think department staff is basically saying they have a concern about those who are opting in versus who are opting out. The whole process of a mechanism of opting in is one of the challenges that we have in the sense of creating programs. It's sort of like with the $5,000 for the house renovation. When 30,000 people applied to begin with, the website fell apart.
It's an interesting thought. Again, Mr. Manly, I really appreciate your looking at a solution. You have a long history of working in the industry and know it well. I really appreciate your looking at another avenue that might resolve that freedom of speech and leave those who choose not to be involved in one. I think that's significant in what you're attempting to do here.
I think the challenge, from what I'm hearing from the department, is that it may create that same thing that we believe has been created by removing that piece now.
I'll leave it at that.
I want to start by thanking Mr. Manly for explaining his amendment, because it was clear he had concerns about the freedom of expression of certain creators and Canadians who post content on the web. I think he has the right idea in mind. Like us, he is trying to remedy Bill 's failings.
I do have a few questions for the experts, though. Perhaps Mr. Manly can chime in as well.
As per Mr. Manly's amendment, the end of new paragraph 9.2(a) reads “except where the Canadian creator of a program has voluntarily chosen to be subject to the Act for discoverability purposes”.
I have to wonder because the explanatory note provided to the minister by justice officials does not refer solely to Canadian creators of programs, as we imagine them when we think of traditional broadcasters. The purpose is to apply the act to digital broadcasters in the same way it applies to traditional broadcasters.
Like a number of experts, former senior CRTC officials and other Canadians, the Conservatives are concerned about all Canadians who upload content on social media platforms or use web-based applications, whether for exercise or gaming. The explanatory note even states that, under Bill , the CRTC could possibly regulate audiobooks and podcasts. It refers not just to Canadian creators of programs as we think of them, but also to anyone who currently downloads or transmits information via web-based platforms and applications.
How will the government or CRTC make sure 38 million Canadians have prior knowledge that they can voluntarily choose to be subject to the act for discoverability purposes? That is my first question for the experts.
Second, who will that obligation fall to? The CRTC or the government? Am I mistaken to think that, should it be adopted, Mr. Manly's amendment would give rise to an obligation to inform all Canadians of this option?
Mr. Manly can give his take, if he likes, but I'd like to hear from Mr. Ripley first. Actually, Mr. Chair, you can decide who should have the floor.
I heard what Mr. Manly said, but personally, when I read new paragraph 9.2(a), as proposed in the amendment, I think of Canadian creators of programs. Since Mr. Manly is a producer, he sends a lot of content, so I imagine that he has people who help him and that he's used to the process. On the flip side, I think of Canadians who post content on social media. The issue is hotly debated by members on the committee and in the House of Commons.
The minister keeps engaging in demagoguery, claiming you are either with GAFA and the web giants of the world or with Quebec and Canadian artists. He always talks about Quebec, trying to play to the crowd there. We are defending the freedom of every Canadian who uses social media and other web applications, Canadians who create audiobooks and podcasts.
In my riding, we have artists who earn their living from their craft, without asking for any assistance. When asked about it by journalists, they said they wondered why the government, through the CRTC, would want to poke its nose in social media or try to regulate such platforms. Those artists chose to have their work seen by the entire world and they are worried other countries will take similar steps, preventing the artists from showcasing their talent for all the world to see. I am talking about artists with more than 560 million subscribers on YouTube alone. Their work is also on Spotify and every other music platform, and they earn their living from their craft. They are just as much artists as are members of the Union des artistes or any other association, but they have no representation whatsoever.
Why am I so worried? Since the beginning, we have shown good faith, but we have concerns about the bill. As originally introduced, the bill had a certain purpose, and the minister touted his bill on that basis when he did the rounds of the media outlets. However, the purpose of the bill changed when the section he proposed adding to the Broadcasting Act, section 4.1, was removed. The bill now applies to social media and other applications. That puts the bill in a whole other realm, and those affected never had a chance to have their say. The minister was more than happy to talk about the fact that the committee had heard from a hundred-odd witnesses and received numerous briefs, but all of that feedback related to the bill in its original form. All of those who became subject to the bill once proposed section 4.1 was removed will have never had their voices heard or shared their concerns with the committee, not to mention that the committee refused to adopt amendment CPC‑9.1, which would have remedied the problem.
We are reviewing a 30‑year‑old act, and it will be around for another 30 years. Further to these changes, we are giving the CRTC extreme powers without knowing everything that could happen as a result. We have no idea how many Pandora's boxes we are opening.
I am very worried. I should point out that what Mr. Manly is proposing is not what worries me. I think he is indeed attempting to fix the problem, and for that, I genuinely commend him. However, it just further goes to show that it will not be enough. I don't see how the CRTC or the government will manage to inform all Canadians in real time, whenever they upload content, that they can choose to be subject to the Broadcasting Act for discoverability purposes.
I have huge concerns, ones that call to mind the concerns I had at the beginning. The government wants to impose time allocation on debate of the bill to keep us from getting at the facts as we examine all of these amendments. They have been put forward by the government and the opposition parties, including the Green Party, which was allowed to participate in the committee's proceedings and is trying to help us make a bill that is full of flaws as good as it can be.
I'm not sure whether the amendment is plausible, Mr. Ripley. At the end of proposed paragraph 9.2(a), it says “except where the Canadian creator of a program has voluntarily chosen to be subject to the Act for discoverability purposes”. Would you say that refers to all Canadians who post information on social media or just to Canadian creators of programs who are registered and recognized by the CRTC?
I am eager to hear your answer.
If I could just put a little bit of clarification beyond what I talked about earlier, for the most part we realize that future amendments proposed by parties are generally confidential, yes. However, in some cases one will affect the other and it gives the current debate a proper context, so what I'm asking members to be cognizant of is this. I have no problems if you want to refer to an amendment in the future that is one of your own, but I'm reticent, and I think Mr. Champoux stressed his concern, and rightly so, about how you would draw other people's amendments into the debate without their having to debate it or move it first.
To me, that's very important, so I ask that you use discretion.
My final point before I go any further is that it has come to my attention that we do have extra time afforded to us. I say that gingerly because I don't like telling people we're extending this debate without giving you advance notice. We're well within 24 hours. I like to do that, as you know, because I like to be respectful. However, since we started around just slightly under 20 minutes late, we can extend this up to 3:30 eastern time—I guess that's 1:30 Alberta time. We can extend up to that point.
I don't need an answer right now. I'd just like for you to have a discussion amongst yourselves if you can. Text each other and let me know, because in order for me to extend I need unanimous consent to do it. That's adding an extra half-hour onto this meeting.
Just think about it for now and when the time comes at three eastern, which is when we normally break, I will ask once again.
That being said, I don't really need UC to extend, but as you understand, I would like to have unanimous consent. That's what I'm trying to say.
Let's go to Mr. Waugh.
Welcome to the officials of the Department of Canadian Heritage.
I, too, want to thank Mr. Manly for his efforts in bringing forward amendments to the Broadcasting Act. As you've all talked about, it hasn't been updated for 10 years. I think for the last several months we forgot about the conventional broadcasters. We've dipped into the digital world, and when we first started this it was all about the conventional broadcasters, who are suffering badly in this country.
Many radio and television stations are leaving the airwaves almost monthly. Mr. Manly would know that because he was a part of community radio for many years. He's a producer. It gets harder and harder to sell a product when there is black on TV channels. I look at B.C. and see that all the radio stations out there have gone dark over the last year, and he's seen that too.
I want to thank Mr. Manly for talking about the point system, because it's very complicated. You need the score of six out 10. When we talk about Canadians.... Where is it being shot? Where is it being produced? Who are the actors or actresses involved? Then there's the MAPL system. Those are the discussions we can't forget about here in committee, Mr. Chair. I want to thank Mr. Manly for bringing that out, because he's been involved in community radio for decades, and as a producer he gives us some insight into that.
To the department officials, this is an interesting proposition, because Ian Scott, the current chair of the Canadian Radio-television and Telecommunications Commission, came to the committee on March 26. Now what we're seeing, and the departmental officials have acknowledged this today, is that this will be an operational challenge. Since proposed section 4.1 was eliminated in April, Mr. Scott hasn't had the ability to talk about the CRTC.
When Mr. Scott was in committee and I asked him point-blank whether he had the capability to enforce Bill , the first answer coming out of his mouth was “yes” but that he had to go to Treasury Board. We all know what that's going to be, asking for more money on behalf of the CRTC to operate this. It is a concern.
Mr. Ripley, I'm just going to ask you this, because like I said, on March 26 we had the CRTC in front of us, and then we've seen all of these changes and operational challenges. What you've told us here today will be front and centre with the CRTC. Could you elaborate on those operational challenges, not only money-wise but with the capacity of the CRTC?
You have heard me and Mr. Manly talk about the capacity of the CRTC for years. They give the seven-year licences and then walk away, and then come back six and a half years later to have a peek. When I hear operational challenges tied into the CRTC, wow, I see a red flag.
I will leave it up to the department officials. I would like you to explain the operational challenges to the committee as we move forward with this amendment. What are the operational challenges that you, as a department, see the CRTC will have to be aware of going forward here?
This is for anyone in the department.
Thank you, Mr. Waugh, for the question and for giving me the opportunity to clarify.
My comments to Mr. Rayes were specifically with respect to the proposal on the table by Mr. Manly to introduce a mechanism whereby creators could opt in to a discoverability framework set up by the CRTC with the implication that some creators would be outside of that. The point I was making is that this type of framework raises operational challenges for both the CRTC, which would have to think about how you actually put in place a mechanism where a creator could put up their hand and say, I want in, and others could say, I'm not in, and at the service level on a service like YouTube, which would have to navigate how you actually put that into practice in real life.
That was the point I was trying to make. I think just stepping back a level, the proposal that the committee had previously looked at and adopted with respect to proposed section 9.1, to reiterate that, the first step when it comes to thinking about how to move forward with a discoverability framework will be the CRTC doing a regulatory hearing on what makes sense.
Again, I think there are a variety of different ways we could imagine that social media services could help raise the profile or visibility of Canadian creators. Part of the job of the CRTC will be balancing those interests of creators and social media services, who are going to say they have very real practical limits in terms of what they're able to do and here's how the service operates.
Again, my comment was not so much at a general level but recognizing that the committee has previously adopted those powers, including the discoverability one, and is suggesting that it be given to the CRTC, while what Mr. Manly has put on the table is something that has a degree of tension with that. That's what I was trying to highlight, because it gives the ability for some people to be a part of it and other people not. I think it's just very challenging to think about how that would be put into practice day to day, given the nature of social media.
That was the point I was trying to make, Mr. Waugh.
That's exactly how the system works, actually. The number of productions that get produced in this country for the traditional broadcasters by producers.... It's about 90% to 95% of the same people who produce over and over again. To break into that system is very difficult. It's actually a small number of commissioning editors who determine what gets commissioned in this country by CTV, Global or any of the provincial broadcasters, or CBC, so it's a difficult thing to break into.
I just want to correct Mr. Waugh, as I've spent a very small amount of time in community radio. I actually worked on hundreds of TV episodes in the broadcast industry. I've produced and directed documentaries of my own and commissioned documentaries. I have worked in artist management and done record deals, international deals, international licensing agreements for artists who have succeeded all across the planet. I've done very well through the CanCon system, which helped them finance tours into the United States, because they could afford to get in a van and drive across the States based on the money they made in Canada by having radio play in Canada.
There is a system in place that is stacked towards companies that work very closely with the big broadcasters. I have produced lots of films that have just gone on to YouTube or on to my own pay-per-view through Vimeo, or other avenues. I have other things that are licensed here and there in other parts of the world. When I have had a broadcaster pick something up, then I go through the CRTC process of certification. It's a fairly straightforward process.
In terms of the comments by Mr. Ripley about how the social media could work with this, well, when you upload a video to YouTube, you can set a number of tags on there. I can say my name, where it was produced and what the key subject areas are. I don't know if anybody here has done web design, but it's a pretty straightforward process to add another line in there asking if this is Canadian content and if you have a CanCon, a CRTC certification number. When you're doing searches online, on YouTube, it would simply say, “Are you interested in Canadian content? Click here.”
These kinds of things can be done quite easily through web design. It's not rocket science anymore. I did do some work in computer engineering as well, way back in the day. It's not a black box. It's not a huge problem.
Those are my comments. Thank you.
The amendment that is before us, then, which Mr. Manly has brought to the committee for consideration, essentially is asking these different content generators, these creators, to determine on their own, to check a box to say, “Yes, I'm CanCon approved” or “No, I'm not CanCon approved”, and then they would check another box saying, “Yes, I wish to have the government's dictatorial algorithm applied to me” or “No, I don't wish to have the government's dictatorial algorithm applied to me”. This then, of course, would determine whether or not they're going to be shown the favour of being discovered, if they do meet the Canadian requirements. If they don't meet the Canadian requirements, then it's claimed by Mr. Manly—and I believe by the other members at the table from the government side—that they're fine. They'll be left alone.
That doesn't work. You can't have one artist in first place, in terms of their discoverability, or in other words, how often they're seen by the general public or the viewers who would look for them. They're in first place, and then someone else who meets the requirements, makes the grade, is going to be bumped up to first place. You can't have two at first place. It doesn't work. I played sports as a kid, and I never knew that two teams could come out in first place. That just wasn't a thing. Perhaps Mr. Manly could expand on that and show me how that's possible.
To my knowledge, if something is going to be bumped up to first place, then that original thing that was at first place has to be bumped down to second place, and so on and so forth. If you have certain artists, certain creators or certain content providers who are meeting this requirement to be “Canadian”, as determined by the government, and then you have other creators who are not meeting the criteria to be “Canadian”, then you inevitably have some who are being bumped up and some who are being bumped down.
This amendment that we're debating does nothing to protect content creators or digital first artists. My question, through you, Chair, if you would be willing to allow Mr. Manly to respond, is this: How can you have two content generators both exist at first place?
If I'm understanding him correctly, he's stating that this amendment would not result in the downgrading of one creator in order to promote another. I fail to see how that's possible. I think in order to bump one person into first place, someone has to drop down to second place. This means very quickly, then, this algorithm that the government is putting out there is going to determine who gets to be at the top and who has to fall to the bottom, which is a form of favouritism.
It's picking winners and losers. It's determining which artists get to succeed and which artists unfortunately have to fail, which artists can be discovered by Canadians and which artists have to be pushed to the back room. Last I knew, artists weren't asking for this. The government likes to say in the House of Commons that artists are wanting this bill, they need the support of the government, they need to be dictated to, and they need these algorithms that are going to bump them up or bump them down in terms of their discoverability.
I've talked to a lot of creators. None of them have said that. In fact, they've all said quite the opposite. They've said, we want the government to get out of the way. We're quite capable of thriving on our own. We've managed to be able to successfully put our talent out there for the world to enjoy and elicit an audience. Of course, as Canadians are watching them.... I should mention that it's not only Canadians but 90% of the audience of most creators in Canada are beyond our borders. That's amazing. They're enjoying phenomenal success. Kudos to them.
They're not telling me that they need the government to intervene. They're not telling me that they want the government to pick winners and losers, to choose favourites or to determine whether or not their content is Canadian enough to be in the first frame on someone's computer screen or have to drop down to frame 27. They're not telling me that.
I feel it's important to state that because the in the House of Commons has advised me to speak with creators, and he has referenced a number of niche lobby groups that he has talked to, so I feel it's important to report back to the committee that I have gone and spoken to many of these creators who are doing phenomenal wonders for themselves and are generating content that Canadians are really enjoying and able to engage with.
These individuals are very successful on YouTube, not just in terms of being able to provide content that Canadians enjoy and like—and it's not only Canadian but a world-wide audience—but also in terms of being able to generate an income for themselves.
Because they're growing an audience organically and because they have that audience, then of course there are companies that wish to advertise on their channels. Those companies pay in order to do that, which allows these artists or these creators to generate a bit of an income. It's phenomenal. It's absolutely amazing.
We're talking about more than 25,000 Canadians who are able to generate a full-time income of more than $100,000 a year because of their incredible success on YouTube. They did it all on their own. Imagine that. They did it all on their own, without government support, without government getting their hands in there.
We're talking about individuals who are not only remarkably talented in whatever their craft is that they're putting on YouTube for others to enjoy, but who are also very savvy when it comes to entrepreneurship and being able to market themselves.
All that to say that I wanted to make sure the committee knew that I have had conversations with many of these individuals, as I was advised to do, and certainly, they are reporting to me that they don't really want this legislation. They don't want the government to put algorithms in place that would meddle with their business and what they're doing online, and the way that they function as creatives.
All that to say, coming back around, my understanding of Mr. Manly's amendment, based on what he said, is that it would require that these creators, those who are putting content online, check a box, and that box would either be, yes, they want to be considered within the algorithmic scheme, or, no, they don't want to be considered within the algorithmic scheme. If they decide yes, chances are they have already gone through the approval process for CanCon, which, for the sake of time I won't go into today. I'll leave it for now.
Maybe then they have CanCon approval, so they would check the box and say, yes, I want to be considered for just exactly how “Canadian” I am, and then that would, I guess, give permission for them to be bumped up or bumped down in terms of their discoverability, but that same box could also just be left blank and I guess those content creators would not be considered by the algorithm. That is what I understand Mr. Manly to be proposing.
He seems to be proposing that if you leave the box empty, if you don't choose to have it checked, then you're left unaffected. You just get to exist without being bumped up or bumped down, but coming back around to the main point here, I just don't see how that's possible. If you're going to bump up those who check the box, then inevitably, those who didn't check the box or who don't make the cut are going to get bumped down. You can't have two people in first place. It just doesn't work.
I mean, imagine watching the hockey playoffs if two or three or four teams all came in first place. It just doesn't work. Someone has to be second. Someone has to be third. Someone has to be fourth. That's just the nature of the game. If checking the box moves you up to first place perhaps, then if you're someone who didn't check the box maybe you got demoted to page 27 of the platform. We're still dealing with a significant problem here, then, in terms of censorship, accessibility and discoverability.
These artists deserve better. Their voices deserve to be heard. We have heard from experts who have said section 2(b) of the Charter makes sure that someone enjoys freedom of expression, freedom of belief and freedom of opinion. It is freedom of speech. That freedom of speech and freedom of expression covers two things. One is the freedom to be able to express your ideas or have them be known. Second is the freedom to be able to access someone's ideas.
There are two things going on there, then. An artist does have the right and should have the freedom to put their ideas out there. As a viewer, I should have the right to be able to see, access or read those things or listen to that content.
By preventing that—or censoring that, I should say—the government would actually be infringing upon our Charter rights as Canadians because it's the government determining to what extent something can or cannot be said, to the extent that something can be discovered or not discovered. It is this hindrance, not only of the expression being put out there, but also this barrier to the expression being found and enjoyed.... It is wrong. It is just so wrong to go in that direction.
My question still remains. I am wondering if Mr. Manly can help me understand. If creators and content generators have to pick which box to check or if they want their content to fall under the guise of the algorithm or not, how does that work for two creators to both come in at first place? How does it work that you could somehow remain not impacted by this amendment or by the legislation as a whole if you leave the box blank, in terms of being considered by the algorithm?
I am looking for some clarification there, through you, Chair.