Regulating User Generated Content Is the Point of Bill C-11: SOCAN Calls for 4.2 Amendment Rejection

SOCAN is showing what the real point of Bill C-11. They want the House of Commons to reject the Section 4.2 amendment.

Throughout the Bill C-11 Senate hearings, much of the debate surrounded Section 4.2. It is with good reason because that section when it entered the Senate would end the careers of roughly 100,000 digital first creators. The section sought to regulate user generated content and demote them in favour of what lobbyists term “professional” Canadian content – ala content that they have a controlling stake over. As a result of this section, anything that doesn’t meet the completely insane Canadian content (Cancon) rules, which is an overwhelming vast majority of everyone online today including us would get demoted and have an extremely hard time even being visible to potential viewers.

While lobbyists tried to push back against Canadian creators on this front, by calling this a fake debate (“canard”) and that this section should be left untouched as-is, Canadian creators made an incredibly compelling case that this section should be amended or scrapped altogether. Among other things, it unfairly discriminates against them, could potentially end their career, and, most importantly, such a section is blatantly unconstitutional for its obvious infringement to freedom of expression. By the end of the hearings, lobbyists had seemingly backed off and focused on issues that were more relevant to their business interests.

After the hearings, the Senate passed an amendment that fixes Section 4.2 and makes it clear that this is supposed to be about professional music and not about regulating user generated content. It was a compromise, but a compromise that won’t murder the careers of innovators who produce video content online. The amendment surprised me because I didn’t think the Senate would have the guts to even touch this and, instead and bow to the powers that be. In the process, I figured that the would throw online innovators and the future of Canada under the bus in favour of legacy corporations who are bent on turning back the hands of time.

As a result of that amendment, the debate shifted back to the House of Commons where a final version of the bill has to be agreed on in order for the bill to receive royal assent. There was some pushback from some supporting the bill with one Senator calling it a “loophole”, but such calls have always been completely incoherent. It also struck many as a refusal to say the quiet part loud in that the whole point of Bill C-11 is to regulate user generated content and control who gets heard on social media. Such efforts are obviously unconstitutional, but some lawmakers don’t really seem to care about whether this violates the Canadian Charter (or violates Canada’s international trade obligations). The problem for supporters is coming up with a lie that would allow them to get what they really want without saying what they really want.

When Bill C-11 passed the Senate, Heritage Minister, Pablo Rodriguez, walked back on his comments to the Senate about being open to amendments and, instead, said that he would reject changes that changes the bill. For many free speech advocates, this was the next shot across the bow that the Section 4.2 amendment could be in trouble. Though the messaging was vague, it was a clear enough to signal that the government was not happy that user generated content is out of the bill and that section was the whole point of the bill in the first place.

Now, we are learning that one of the anti-free speech lobbyists, SOCAN, has made it crystal clear that regulating user generated content is the point of Bill C-11 in their minds. As a result, they have called on the government to specifically reject the Section 4.2 amendment. From SOCAN:

SOCAN CEO Jennifer Brown today sent a letter to all Members of Parliament in Canada urging them to reject an amendment to section 4.2 of Bill C-11, the Online Streaming Act, that will not support Canadian songwriters and composers in a modern digital age. The bill has been passed in the Senate, but the House of Commons has yet to ratify it and accept the new amendment.

Here’s the text of Jennifer Brown’s letter:

Bill C-11 must remain broad so that it can adapt to future online services, whose models for delivering content are not yet known. A bill that is tailored only to services in operation today will not be flexible enough for the future of broadcasting online. The amendment to clause 4.2 jeopardizes this flexibility. We need Parliamentarians to reject this amendment.

SOCAN thanks the Minister of Canadian Heritage, the Honourable Pablo Rodriguez, for staying true to the promise of introducing this important Bill and look forward to all parties stepping up for what’s right for Canada’s culture and economy.

Obviously, the change that such a call seeks is blatantly unconstitutional as it violates freedom of expression in the Canadian Charter of Rights and Freedoms. By restoring the old text of Section 4.2, the government would have the power to ghettoize speech and ensure that such forms of expression would never be seen by viewers. This is by replacing those recommendations to potential viewers with content that their members (among other members of the powers that be) own the intellectual property to. In short, it’s the government picking winners and losers over who gets heard on platforms like YouTube and TikTok.

As you can see from the text, SOCAN seems to be still trying to not say the quiet part loud and, instead, continues to rely on the vague notion of “flexibility”. There has never been and will never be a real explanation as to what “flexibility” they are seeking that the old language offers other than the “flexibility” to regulate user generated content.

The ironic part about that is the fact that if SOCAN gets what it wants, then the law would be subject to a court challenge just on this section alone for any law firm that wants a slam dunk case added to their portfolio. Thanks to the threat this represents to 100,000 Canadian creators, there is no shortage of creators – some of whom are quite wealthy at this point – who would be highly motivated to challenge this law.

Now, obviously, the change wasn’t made yet, but this is a clear signal that lobbyists don’t like the Section 4.2 amendment specifically. If you want further proof that the whole point of Bill C-11 is to regulate user generated content, you can throw this letter onto the pile.

Drew Wilson on Twitter: @icecube85 and Facebook.

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