Bill C-18 Defender Tries Defending Bill C-11, Hilarity Ensues

We recently saw another attempt to defend Bill C-11. It’s from an author whose claims we previously debunked.

We’ve noted in the past that if your primary methods of defending Liberal tabled legislation is a barrage of false and misleading statements, then that tells you everything you need to know about how the legislation is simply indefensible. We’ve already debunked a number of myths spread by certain sources on Bill C-18. You might recall that, during out fact checking excursion, there was one sourced to cartt.ca. That’s the one that confused the link tax legislation with the social media censorship bill. The claims in that article also tried to claim that publishers losing money was entirely the fault of Google and Facebook.

It turns out, that author decided to take a kick at the can in trying to defend Bill C-11. Given how the last defence failed so miserably, we decided to read the article almost out of amusement to see what this genius came up with this time. Unsurprisingly, he did not disappoint.

In fact, the author decided to be even more bold by proclaiming that everything that critics of Bill C-11 said just don’t stand up to scrutiny. Given that critics arguments are based on the direct text of the bill along with common knowledge of how the basic Internet works, we almost couldn’t wait to see what this guy had come up with. Again, this authors article was published on Cartt.ca.

In it, the author identifies 5 arguments he thinks critics are making against the bill. The first one is this:

Argument 1

Argument 1: The CRTC can’t be trusted to regulate hosting platforms and will end up regulating just about everything that gets uploaded.

Obviously, there is a flaw in just the identification of the argument. The argument is actually more about how the legislation would regulate “just about everything that gets uploaded”. Section 4.1(2) states “this Act applies in respect of a program that is uploaded”. Indeed, there are a multitude of reasons why the Canadian would be sceptical about the CRTC holding the reigns of this legislation (such as the CRTC approving the Rogers Shaw merger at the expense of competition in the carrier industry and the notorious beer picture to name two examples). So, it’s a bit flawed to identify the argument in that light. Still, we carry on with his response to what he thinks is the argument:

The bill as drafted imposes regulatory obligations on the hosting platform, not the programming or its creator (section 2.1). YouTube will be responsible for streaming an as yet undetermined amount of CanCon and making it discoverable based on its aggregated programming viewed by Canadian audiences. It can continue to host Canadian programming and/or contribute cash to the Canada Media Fund (CMF). None of its uploaders will have any of those obligations. Conservative MP Rachael Thomas repeatedly insists C-11 imposes a levy on uploaders, but this is incorrect.

But C-11 opponents still have a point: the language defining what programming the host platform has to count towards CanCon contributions or discoverability may be too elastic.

If MPs’ trust in the CRTC is as low as Geist’s appears to be, C-11 could be amended to peg the definition of regulated commercial programming to a number of subscribers or an amount of earned revenue.

Importantly, the government acknowledged this political vulnerability in the bill and during second reading in the House on March 29th, announcing that following Royal Assent the minister will issue a directive to the CRTC suggesting where the line should be drawn.

We can expect opposition MPs on the Heritage Committee to demand a draft of that directive.

Yeah, this is only the beginning of how bad the defence of this legislation is. The first sentence, “The bill as drafted imposes regulatory obligations on the hosting platform, not the programming or its creator (section 2.1).” is actually erronious. The legislation, does, in fact, apply to a content creators work that is uploaded. Again, Section 4.1(2) makes this very clear. Section 2.1 only refers to the person making the upload, not the upload itself. Don’t believe us? Read the bill yourself or just read the excerpt in question below:

(2.1) A person who uses a social media service to upload programs for transmission over the Internet and reception by other users of the service — and who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them — does not, by the fact of that use, carry on a broadcasting undertaking for the purposes of this Act.

Emphasis mine.

What’s more is the comment, “None of its uploaders will have any of those obligations. Conservative MP Rachael Thomas repeatedly insists C-11 imposes a levy on uploaders, but this is incorrect” is a strawman argument for the same reason. The act applies to the uploaders content, not the person. If that Rachael Thomas made that comment, then she is wrong, but the argument about how the legislation applies to the uploaders content still stands.

Another point of contention we have is the 4th paragraph. as we previously covered, the idea of tweaks like this being made only after the bill passes is an overwhelming dealbreaker for online creators. There is no reason for lawmakers to avoid detailing what they are targeting and what wouldn’t. Further, if the bill makes it to royal assent, then there is no incentive to make further tweaks. This is something we’ve seen with Conservatives in past governments when they said that the bill is done and critics are too late to make suggestions to fix it. The Liberals, in this instance, are playing from the same playbook and it doesn’t make this promise any more believable.

Verdict: After fixing what was the actual argument, the argument still stands.

Argument 2

We then move on to the next argument and response which is this:

Argument 2: Foreign streamers might boycott the Canadian market instead of submitting to regulations.

Maybe. Probably not. None of them have threatened to do so. Is it possible that a streamer like BritBox, which has no interest in making Canadian movies, will walk away from 15 million households in the Canadian market rather than pay a contribution tithe to the Canada Media Fund?

It’s worth remembering that Google and Facebook threatened to leave the Australian market over legislation requiring them to contribute to journalism. They backed down when they saw the government was serious. The Canadian market is 50% bigger than Australia.

To answer the first question: yes, it’s more than possible. The logic is, of course, there. While 15 million households sounds like a lot, it’s worth considering the idea that Britbox would rather not push a couple million dollars over to Canada when there are so many other countries it can promote its service to. Looking at the population of various other countries, the argument is there that Canada would not be worth it, business-wise. Here’s a sampling of other jurisdictions populations:

  • Germany – 83,783,942
  • France – 65,273,511
  • Italy – 60,461,826
  • Spain – 46,754,778
  • Poland – 37,846,611

Honestly ask yourself: would it be worth entering into a market of 38 million where you not only have to re-tool your entire service just to be in compliance and pay millions when you have all these other countries that don’t require re-tooling or paying huge sums of money into a fund? Not really. All the law is providing is a disincentive to operate in Canada in the first place. Indeed, Canadians would probably just use proxies and VPN’s to circumvent this, but the argument still stands that Britbox doesn’t exactly have the worlds strongest motive to continue to serve Canadian’s with such a law in place.

Moving over to the last paragraph, this is quite the exercise in revisionist history. The large giant’s did back down, but not because, “oh, the government was actually serious about the law. I guess we just have to go along with it now.” The overwhelming consensus is that Facebook and Google went along with link taxes because they saw it as an opportunity to choke off any and all competition of both today and tomorrow.

Without link taxes, the cost to start up a brand new platform or search engine was only server space, the domain, and the employees that are ultimately hired on. That is a very open market despite the overwhelmingly bad odds that you’d even make a dent in the search and social media space. The problem arises when you also attach a $100 million price tag just to enter into the market. That is enough to deter pretty much any and all future competition before the idea even takes off. Google and Facebook, for their part, are nearly trillion dollar companies. A few million is nothing to them. For them, this is an investment to ensure they never have to deal with competition ever again.

Of course, this was an embarrassing oversight on the part of those pushing the link taxes in the first place. Many who are promoting the link taxes are also vocal proponents of “reigning in big tech”. They legitimately thought that they could push this through without consequence. It backfired spectacularly and instead of “reigning in big tech”, they solidified the position of “big tech” as a forever monopoly. Rather than deal with this reality they created, many, like the author above, are trying to re-write history and pretend that there was no consequences for their actions in all of this.

What’s more is that smaller streamers are not Google or Facebook. They actually have limitations to their budget. To pretend that the situation is one and the same is like comparing apples to briefcases. Different companies, different situations, and different laws. It’s unlikely that you can expect a similar outcome based on the premise.

Verdict: Even the author flatly admits that he can’t refute the argument.

Argument 3

We then move on to this argument which was a real gem to read for reasons the author had no intention of making it:

Argument 3: “Discoverability” requirements interfere with free expression.

Discoverability is streaming-speak for “promotion of content.” On digital platforms, content promotion combines algorithmic feedback of viewing consumption (both individual and trending) with old-fashioned marketing of in-house productions or third party pay-for-placement.

The original C-10 gave the CRTC specific powers to order changes to algorithms to promote Canadian content. C-11 removes that power. Instead, regulated streamers will have a general obligation to promote Canadian content by means of their own choosing. Nevertheless as a practical matter it’s hard to see how discoverability regulations won’t induce platforms to tweak their algorithms to spotlight CanCon more than they do now.

Opponents of C-11 call this “censorship” because, the thinking goes, it contemplates a zero-sum game of winners and losers in competing for audience attention (even though the recommendation algorithms of the host platforms are already doing it).

For that to be even a remote threat, the CRTC would have to impose preposterous standards of CanCon discoverability that crowds out everything else. It might be worth the CHPC MPs asking the minister whether this is the intention of the legislation. I doubt it.

You really have to wonder if the author even understands what he is writing in the first place. With respect to the second paragraph after the heading, the author admits that the legislation does force services to change how they operate to “promote Canadian content”, but at the same time, the author simply flatly states that the changes won’t mean that anything changes. No, it either changes things or it does not. You have to make up your mind on that.

Simply put, though, the author had it right the first time, then proceeded to deny the truth after. The reality is that the legislation does dictate what outcomes come from search results and recommendations. This greatly alters what you will see on a platform. It will, in fact, force the platform to “spotlight Cancon more than they do now” because that is one of the major points of the law in the first place. Further, the content that is in the “spotlight” will end up being what the government deems “Canadian” in the first place, not necessarily that the content was made by a Canadian.

As for the last part, it “contemplates a zero-sum game of winners and losers” because that is how audience attention actually works. Either an audience members see your content or audience members do not. This is common knowledge for any form of entertainment. If a household has one generic television, and they are watching your TV, they are either tuned in to your channel or they are tuned in to a different channel. It’s similar to the Internet where audiences actually have limited time to not only see content, but also see what they could be watching as well. If there are 10 recommendation slots and the algorithm decides that your video is number 11, you are out of luck for that instance. Non of this is rocket science, yet the author seems to have a hard time grasping this basic concept.

As such, it is actually the technical definition of censorship. If the algorithm normally would place your content in an 8th slot, but is forced to recommend 4 other video’s to satisfy arbitrary CanCon rules, then your video gets demoted. As a result, your voice got suppressed. This is part of the legal definition of censorship. The government suppressed your voice. Censorship doesn’t have to mean outright removal of your voice.

Verdict: Argument was hardly contested and the argument stands.

Argument 4

The next one is a bit long-winded, so we’ll break it down into parts:

Argument 4: Small digital-first creators get nothing out of C-11 and in fact will be harmed by discoverability requirements on hosting platforms.

This is the focal point of opposition to C-11 from Conservative MPs inspired by a series of blogs and podcasts from Geist. It breaks down into two arguments.

The first is that C-11 will cause Canadian content funding to go entirely to big “legacy” media companies instead of small digital-first producers. Conservative MP Rachael Harder colourfully expressed this in the House:

What is a part of this legislation is actually going after those digital-first creators, those new innovative artists, and asking to take 30% of their revenue to give to traditional, antiquated, outdated artists who cannot make a go of it otherwise.

That’s incorrect. The main beneficiaries of the Canada Media Fund (which presumably would be the prime recipient of C-11-enhanced contributions) are independent Canadian film producers and the thousands of Canadian creative talent and crews they hire.

As well, any digital-first creator is already eligible (and encouraged to apply) for CMF funding. Like any other creator, they have to meet the long-established CAVCO rules that count the number of heads of Canadians in key production and talent posts.

The excerpt links to CAVCO rules. This is what the rules state:

Who can apply for the CPTC?

The CPTC is available only to a Canadian production company that is a qualified corporation. A qualified corporation is one that is throughout a given taxation year a prescribed taxable Canadian corporation with a permanent establishment in Canada, and that primarily carries on the activities of a Canadian film or video production business. A Canadian film or video production in this context is a production meeting the requirements of section 1106 of the Regulations.

(cue audience laughter here)

Do you really think that every digital first creator on YouTube is a large corporation that pulls in millions of dollars? On what planet does this thinking come from? Yes, there are a handful of YouTuber’s that ended up being small corporations, but those tend to be the most successful ones (you know, the top 0.01% at most). The rest are typically either a group of friends or just single individuals with a camera and an idea. To suggest that “any digital-first creator is already eligible” and then turn around and say that you have to be a corporation first is hilariously out of touch of what it’s like to be an actual YouTube or TikTok creator. The author really needs to give his head a shake for writing that.

The comments then continues with this:

The second argument is that discoverability requirements could backfire on digital creators whose uploads – promoted because they are Canadian content – might get a harmful thumbs down from viewers being “force fed” unwanted content.

There are many questionable assumptions here, not the least of which is that YouTube would undermine its own revenue stream by recommending Canadian content that is unrelated to an individual viewer’s consumption history to which YouTube’s algorithm caters in its recommendations.

This is something we actually addressed in previous articles, but we’ll repeat it again here. When you have a global pool of possible videos to promote, you have a much bigger selection to choose from. When you are not only limited to what a single country produces, but also limited to what the government approves of on top of it all, then the choice is much more limited as well. Your average YouTuber is used to seeing certain levels of quality. When the recommendations section is suddenly severely kneecapped by new CanCon rules, they will inevitably see a drop in quality with whatever they are going to see. This will inevitably result in more negative reception to video’s that somehow make it through all these regulatory hoops in the first place.

So, it’s not an assumption that quality will drop. It’s actually just math at work. If you had to pick from 10 video’s and 1,000 video’s for something good to watch, you’d rather go for the pool of 1,000 video’s. You might get lucky with 10, but the odds are much more in your favour if you pick from the 1,000 video pool. This isn’t a case of YouTube willingly undermining their algorithms, but rather, YouTube being forced to be significantly more starved for choice. There’s nothing questionable about this.

What’s more is that if there is no “eligible” video that fits a particular users choice, then YouTube would have no choice but to “force feed” something else that is unrelated. YouTube caters to pretty much all tastes in the human experience, not just your own personal taste. You might be interested in fishing video’s, but Poker video’s might not be something you are interested in. You might be into Poker video’s, but haul video’s surrounding fashion might not be something you are interested in. The problem here is that YouTube has to cater to all tastes and the idea that a small government approved pool of video’s can satisfy the viewing habits of everyone like it does now is, at best, highly questionable.

The comments in that part concludes with this:

The entire controversy may be moot. The government seems to have climbed down on this issue by announcing at second reading in the House that the minister’s directive to the CRTC will exempt “digital first content” from the hosting platforms’ Canadian content:

Mr. Francesco Sorbara (Vaughan-Woodbridge, Lib.)

For instance, a policy direction to the CRTC will make it clear that the content of digital first creators who create content only for social media platforms should be excluded. Of course, individual users of social media will never be treated as broadcasters under the online streaming act, and only some commercial content carried on social media platforms could trigger obligations on that platform. A policy direction will clarify that the content of digital first creators will not be part of the commercial content that can trigger obligations for platforms.

This means that the content of digital first creators will not be included in the calculation of the social media platform’s revenues for the purposes of financial contributions. Content from digital first creators will not face any obligations related to showcasing and discoverability. Canada’s digital first creators have told us that they do not want to be part of this new regime, and we have listened.

This free ranging exemption is a significant retreat by the government and begs the definition of “digital first creator” as we move into a future of “digital first and last” creation where linear broadcasting may become a thing of the past.

There is one big problem with this, we’ve seen these kind of comments before from the government. During the Bill C-10, Prime Minister Justin Trudeau said that an amendment moving forward would make it “crystal clear” that user generated content would be exempt. The Liberals then proceeded to double down on regulating user generated content after. So, Liberals saying they won’t crack down on user generated content only to crack down on user generated content is nothing new. So, critics have every reason to be skeptical about these comments coming from the Liberals. Many would rather see that user generated content is actually exempt rather than just empty promises that they would make that exception later on in the process as some point, don’t worry, we promise.

Verdict: Argument still stands.

Argument 5

We then finally reach the last argument he identifies:

Argument 5: Examples of film-makers gaming the system of certifying Canadian content – based on mechanistic formulae of hiring Canadians in key talent positions – undermine the integrity of regulatory measures. So do examples of uncertified films that are as Canadian as maple syrup but perhaps missing a Canadian in a key position. Then there is the loophole of co-productions with foreign film-makers that permit the final product to be certified without being recognizably Canadian.

This is a dead-on criticism shared by some (not all) allies of Canadian cultural nationalism.

To use an unlikely hypothetical, it is possible right now for a Canadian producer to obtain Canadian-content certification for a biopic about Abraham Lincoln so long as enough Canadians are working on the movie.

The rule needs fixing. In addition to using homegrown talent, the cultural authenticity of a film plays a major role in the certification rules of other countries, notably Britain. We could do the same.

Revamping certification rules does not require an amendment to C-11: the mandate for authenticity has always been in the statute. What we need is for the minister to direct the CRTC and CAVCO to revise certification rules to align closer to a British model.

The response pretty much side steps the whole reason why this argument is made in the first place. We have a system that is flawed (and the author doesn’t disagree with that). What Bill C-11 does is take that flawed system and apply it to the whole Internet (which is pretty awful since the Internet is not a broadcast cable TV). So, calling for a broken system to be applied to a system that doesn’t even fit half way decently in the first place is a recipe for disaster from the outset.

What really needs to happen is to craft a set of rules that is tailored to the Internet that won’t actually harm the ecosystem of content creation. After that, then contemplate how to apply laws to the Internet (if – and that’s a big “if” it is even advisable to proceed with laws in the first place) to achieve the objective. Saying that you’ll fix the system after it is implemented is like jumping out of a plane and then worrying about whether or not you have a parachute. It’s idiotic.

Right now, lawmakers don’t even know how digital first creators would even benefit from the legislation. That tells you pretty much everything you need to know about how much consideration digital first creators were given when crafting the legislation (re: none). What truly needs to happen is the government needs to get their ducks in a row first before even applying this legislation. Anything short of that is automatic cause for concern.

Verdict: The argument stands.

Conclusions

The author clearly set out to try and smack down criticisms of the legislation. Of course, a prerequisite for doing so is to have general knowledge of how the Internet works and how digital first content work is created. Some of the responses suggests that the authors thinking is as outdated as the CRTC’s rules surrounding identifying what qualifies as Canadian (very). A vast majority of digital first creators don’t have a whole film crew and a room full of editors. They don’t own a multi-million dollar corporation. More often then not, they are either one person or a group of friends with a camera and an idea.

In fact, a lot of large creators today started off with next to nothing. They grew into the status of a company after finding huge success with what they do. Legislation needs to consider creators in all phases of their careers, not just, at best, focusing on the ones at the height of a career and at the top of the popularity pile. Anything less sabotages the careers of those who want to get into this business and that is not only unfair, but plain wrong. Not only does the legislation fail to consider it, but so do the many backers of the bill who only have one real goal in mind: to keep the money gravy train going for the establishment. Success, for them, should not even be happening to anyone from the outside of their close inner circles.

So, it is little surprise that this author also had a major swing and a miss, going zero for five in his counter-arguments. To be perfectly honest, I expected better from a director of a major union. In fact, someone of his stature should have been able to come up with, at least, some valid points that made me think about some of my positions. That simply did not happen. The arguments he made were laughably easy to knock down one by one. It makes me think that since this was so easy to respond to, that the position for those supporting the bill are much weaker then I thought. Probably an indication that, maybe, just maybe, it really is a bad bill.

Drew Wilson on Twitter: @icecube85 and Facebook.



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