Lobbyists Pushed For Removal of Both 2.1 and 4.1 in Bill C-10

While the government and Bill C-10 supporters appear to be clueless, lobbyists apparently knew exactly what they were doing.

The government and Bill C-10 have both been trying desperately to find a defense to the Bill C-10 legislation. The problem is, to date, a viable defense to the legislation has yet to surface.

Steven Guilbeault, the Canadian Heritage Minister and frontman for the legislation, has pretty much bungled his defense of the legislation from the very beginning. The peak of his screw ups hit when he had a brief moment of honesty where he admitted that user generated content would be regulated. When pressed, he detailed how users with large followings would be subject to regulation, though he refused to say what the threshold for followers were. Those comments were backtracked on the very next day where he went running back to his talking point that the legislation doesn’t regulate user generated content.

A day later, the Guilbeaut got an assist from the Canadian Justice Department where they basically rubberstamped Liberal talking points about the legislation. It was supposed to be a Charter Review, which the Heritage Committee asked for. Of course, the Canadian Justice Minister, David Lametti, was missing in action at the time. Critics blasted the paper as getting a failing grade and many were demanding answers. After days of seemingly in hiding, Lametti came forward and walked back the designation of that being a Charter Review. Instead, he called it an “explanatory document”, effectively admitting that he didn’t give the committee what they asked for. He further said that he isn’t in the position to give legal advice and kept deflecting questions to the Heritage Minister.

While the governments defense has been comically bad, hardcore Liberal Party supporters have been worse in their defense of the legislation. The Toronto Star effectively flushed its credibility down the toilet when it took a crack at defending the legislation. The end result was misleading statements and outright inaccuracies of what the legislation stood for. The effort ended up being all for nothing.

Another supporter made an attempt as well. The end result was off topic rantings about how Canada is a distinct society and attacked those who criticize the bill as people who don’t support democracy. As a result, it went down as one of the worst defenses of the legislation especially given that almost nothing in the piece actually defended the legislation itself. Instead, it turned into a mudslinging piece with shades of the No true Scotsman fallacy thrown in.

While the public facing players appear to be comically bad, what’s going on behind the scenes with lobbyists is a very different story. So-called “cultural” organizations have been pushing hard for this legislation for some time. Part way through the process, they were apparently pushing to have both section 2.1 and 4.1 removed from the legislation. For quick reference, section 2.1 exempts the user from regulation while the now removed section exempts the content they produce. Michael Geist notes that, while they support 2.1 now, that wasn’t always the case:

While there have been efforts to suggest that the concerns about overbroad regulation are just misinformation or fear mongering, the CDCE was one of several culture lobby groups that lobbied the government to remove both user generated content exceptions. It now says that user generated content is protected, but the CDCE urged the committee to delete both Section 2.1 and 4.1, effectively advocating that all users and their content would be regulated by the CRTC. The government decided to keep Section 2.1 in place, however, it is apparent that freedom of expression for users was not a top CDCE priority.

The CDCE was not the only high profile cultural lobby group to lobby for the potential full regulation of user generated content. The Association québécoise de la production médiatique (AQPM) adopted a similar position in its brief, calling for the deletion of both user generated content provisions and expressly supporting the regulation of what it called “professional” user generated content, which as a recent article in the Toronto Star notes, could include thousands of Canadian Youtube, Tiktok, and Twitch creators who have been left in the dark about Bill C-10.

Earlier this week, ACTRA, a leading creator union, was in the media calling for the committee to move forward with Bill C-10. But ACTRA’s brief to the committee called for both the deletion of Section 4.1 and a revamped Section 2.1 that would leave it to the CRTC to decide which social media users would be regulated. The proposed ACTRA provision stated:

(2.1) A person acting in an individual capacity who uses a social media service to upload programs for transmission over the Internet and reception by other users of the service is not providing a broadcasting undertaking, unless the CRTC determines they are the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them, or they are providing programs for commercial purposes.

The inclusion of “providing programs for commercial purposes” would capture any Youtuber, TikTok user, podcaster, or other creator generating revenue from their work and subject them to potential regulations on mandated contributions, disclosure requirements, and even CRTC registration.

The reality is that government has left little doubt that lobbying interests carry far more weight than the views of Canadians when it comes to Bill C-10. Those lobbyists may be “shocked” to find Canadians concerned with the regulation of user generated content, yet that is precisely the approach that they lobbied the government to implement. If Bill C-10 passes and the CRTC is left to sort out the implementation of the regulations, those groups seem likely to continue their efforts to regulate the user generated content of millions of Canadians.

It’s very easy to see the motivation behind this. For years, large corporate international record labels, movie studios, and publishers controlled huge portions of their respective markets. For record labels, for instance, they effectively controlled the talent recruitment, the signing process, parts of the production process, the distribution, the promotion (as Payola clearly proved), and parts of the sale process. If you wanted to have a career in any part of the entertainment industry, you had to go through the monopolistic corporate interests. Otherwise, you, at best, are going to find minor success in the local city you happen to reside in.

The advent of the Internet effectively broke the entertainment industry monopoly. Independent producers could simply forgo the corporate distribution chain and reach potential fans directly. As a result, you have countless acts and producers who made it big online who don’t have to worry about paying millions to the corporate interests in “loans”.

Obviously, this upsets the corporate players who have been demanding total control. With the Internet upending this, corporations have been trying to effectively put the genie back in the bottle by lobbying to crack down on the Internet in various forms. Whether its tightening copyright laws, demanding Internet censorship, or, in this case, sending ordinary users into regulatory hell, the goal is to wipe all competition off the face of the earth.

Bill C-10 would effectively do so – at least in Canada. The idea is to try and throw heavy regulation on users to the point where smaller players would be excluded from the creative process and larger players would get hit with constant battles with regulators. At the end of the day, it is about hamstringing the competition to the point where it is no longer viable to produce content online.

Section 4.1 and 2.1 represented a roadblock for these corporate interest groups. You can’t wipe out the competition if both users and their content are excluded from these exemptions. Lobbyists did score a partial victory by making users content subject to heavy regulations. If regulators aren’t going to be busting down a users door for uploading a cat video, regulators will at least be theoretically able to nuke the content from orbit.

Of course, once people caught wind of this, the jig was up and lobbyists made best of the situation by pointing to Section 2.1 and saying, “Look! Over there! Pay no attention to this legislation!” If they can’t have the exemption to the creators themselves, they could at least use it to try and defend the legislation. After all, a partial victory is better than no victory. With the possible threat of court action to declare the whole thing unconstitutional, the latest efforts to crack down on free speech is now turning into a salvage operation.

With free speech online at stake, Canadians are hoping that even the salvage operation sinks into the depths as well.

Drew Wilson on Twitter: @icecube85 and Facebook.

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