Senate Hearings on Bill C-11 – A Look at Hearing 12 (Second Segment)

The special coverage continues in the Bill C-11 senate hearings in Canada. This instalment covers the 2nd hearing of hearing 12.

The hearings are continuing this week and last weeks hearings covered a significant amount of ground. So, we do find ourselves a little bit behind due to the pure volume of it all. Still, we are attempting to catch up anyway.

For those who are curious, here is the coverage of the previous hearings:

Hearing 1 – Privacy Commissioner and Global Affairs/Justice Department
Hearing 2 – Digital rights organizations and lobby groups (1)
Hearing 3 – Lobby groups (2) and platforms (1)
Hearing 4 – Lobby groups (3) and lobby groups (4)
Hearing 5 – Lobby groups (5) and lobby groups (6)
Hearing 6 – Music Canada / platforms (2) and lobby groups (7)
Hearing 7 – Scholars/researchers (1) and digital first creators (1)
Hearing 8 – Digital first creators (2) / lobby groups (8)
Hearing 9 – Digital first creator (3) / lobby group (9) / platform (3) / Lobby group (10)
Hearing 10 – Record Label / Lobby Groups (11) and Scholars/Researchers (2)
Hearing 11 – Scholars/Researchers (3) and Lobby Groups (12)

The first segment of hearing 12 wound up being a mix of perspectives, but another one with experts. Things got interesting in that hearing when the supporter of Bill C-11 argued that the bill changes nothing and Section 4 is no big deal. Yet, when he was asked about his thoughts of clarifying and fixing Section 4, he viscerally opposed the idea and argued that it should be left unchanged. So, another instance of trying to have it both ways where Section 4 doesn’t change anything, yet it’s somehow this sacred section that must be left unchanged at all costs for reasons that should never be made public. So, a ridiculous position to have, really and a position that lends support to the idea that the goal the whole time is ultimately to regulate user generated content, yet try and make this new layer of heavy regulation be made to look like an accident.

Regardless, we press ahead with these hearings with the second segment. As usual, the video we are following can be found here. In terms of thoroughness of what was said, nothing will beat the original video or official transcript. Nevertheless, we will be happy to provide a detailed summary as well as analysis of what was said. So, with that, enjoy!

Opening Statements

Stewart Reynolds, also known as Brittlestar began with his opening statement. He notes that he has been creating social media content for the past 9 years. What’s more, he’s been able to support a family of four through his content. He said that he can’t speak to the benefits or drawbacks of Bill C-11 in regards to the Netflixes or Disney+’s of the world. Those streaming platforms are very very different from social media platforms. He can’t make a video in his garage and post it on Netflix. Netflix, and the like, are gated. They decide what gets posted to their platform.

He continues by saying that YouTube, TikTok, and the like, are not gated. They do not get to decide what is uploaded to their platform. However, he can speak to the benefits and drawbacks for digital first creators like himself. Forcing, or tempting to force, YouTube, TikTok, or other platforms to prioritize Canadian content may be well intentioned, but it is naive for two main reasons.

He explains that one, forcing people to view content because it is Canadian does not encourage people to like that content. It is more likely, he feels, to breed negative perceptions of Canadian content for the user. If the know that a video is being shown to them primarily because it is Canadian, and not because it’s what the user is searching for, it can make the video seem inferior regardless if it is or not. It would be like going into a restaurant under corn content or “corncon” rules and even though you ordered the Alberta Sirloin, you receive a bowl of corn. Good, perhaps, but not what you wanted.

He goes on by saying that, two, the social media platforms are all foreign owned. The Canadian offices are little more than satellite offices that operate at the command of the head office outside of Canada. He’s been told by an employee at one of the social media platforms Canadian offices, that when a spreadsheet plan comes from head office, Canada is last on the list. We’re tiny. The notion for cancon for radio, though covering a lot of the artists with the same negative perceptions, was easier to implement because they were working with a radio station from Kingston, Ontario for example. Bill C-11 in its current form, with regards to digital first creators like himself, is trying to forcing a radio station from Syracuse New York, which you can hear in Kingston, play more Canadian music. A nice idea, but the chances of that happening are slim.

Make no mistake, though, he continues, thinking that Canada’s digital first creators can thrive and maintain their “Canadianness” without any help is foolhardy. We live massively next to an influential market. Of course there are standouts that have succeeded, but there are many Canadians who don’t have millions upon millions of followers yet (from Youtube’s perspective, I’d be one of those creators) who could be adding to and growing the digital first industry in Canada.

He thinks that focusing on incidentally Canadian – content that appeals to a broad audience, but is evidently Canadian in location, details, or any way whatsoever. He thinks the goal should be creating content that is incidentally Canadian, exporting it to the world, and bringing that money back into Canada.

Bill C-11, he explains, runs the risk of cutting us off from the rest of the world, making big fish in a little pond when we should be focused on making great fish. He agrees that Canada offers a tremendous amount to the platforms in the form of creators and consumers. That has real value. However, instead of asking to prioritize Canadian content, which he feels is futile at best and counterproductive at worse, why not invest in digital first creators?

When monetization becomes available on a platform, he explains, Canada is often not first in line. In 2016, he watched his peers in the US and UK evolve from one person operations like himself to full production houses with many employees. Facebook offered monetization for videos. He had similar view counts on his videos, but as he was in Canada, he was not eligible to be monetized. So he made zero dollars.

Further, he adds, TikTok has announced that they are monetizing creator videos, but seemingly not in Canada – at least not yet. Why not have the Canadian government work with the platforms to ensure that digital first creators have the same opportunities as the US, the UK, and other countries? Why not have the social media platforms instead of paying out fees to traditional broadcasters, fund incentives, programs, and support for Canadian digital first creators? Like helping francophone creators find a global audiences and ensuring important Canadian stories, in any language, can be told?

Otherwise, he says he believes, we are leaving a potentially massive industry needlessly underdeveloped. Like having a booth at a farmers market, but it is hidden. Canada is the best place in the world to create in. We have a quality of life that is far above any other countries. Let’s make Canada a content production powerhouse. Let’s work to make the world want to watch Canadian content, not just because it is Canadian, but because it is the best.

For that reason, he feels that it is in Canada’s best interest to modify the existing Bill C-11.

(When this legislation was first making the rounds, my primary focus was definitely on the free speech side of things. It wasn’t until these hearings that I started seeing the angle of how if we are going to be demanding money from web giants, invest that money into digital first creators who help make up the platforms in the first place. My response to that angle when I first heard about it was that this is definitely a great idea that does generally make sense. While I have a little bit of reservations on this in terms of helping digital first creators vs possibly only helping creators who are already successful, this is otherwise an excellent idea that came out of these hearings. So, it’s really good to hear this idea being brought up again. My cynical side tells me that the government has no intention of doing so because it’s more focused on getting a whole new gravy train to the legacy broadcasters who have no intention of making content people actually want to watch so they never have to really worry about running their business into the ground due to poor decision making skills, but if digital first creators actually get appropriate access to the funding, it would be one aspect I would be ecstatic over.)

Jennifer Valentyne opened with her remarks. She opened by talking about her experience working in television and radio all her life. She spoke about how management had moved her around because a new position would be more appropriate for a woman ‘of her age’. In the process, all the stories she told were erased from the website and social media platforms of these broadcasters (that is absolutely brutal. I only had my name erased from my work, not whole stories). The news of her firing was announced on April Fools day, no joke (hey, I’ve had union contracts start on the same day, so I have a sense of that employee worth in the same light). A post was made on social media and the post went viral. They then erased the post, hoping it would go away.

She continues that she then created her own Facebook post on her own Facebook page and then an amazing thing happened. That post went viral and users followed. She spent countless hours answering peoples comments and words of support. Women told her about their own stories of ageism and the numbers went up by 30,000. Facebook saved her like so many others.

Social platforms, she explains, are where people relate to one another, and during the pandemic, people across the world related to each other. She has been told by many journalism that they wanted to do what she did and wanted advice. She responded to apply for broadcasting, but get on YouTube. Be in control of your own destiny. Don’t let executives tell you that you aren’t good enough, not smart enough, not talented enough (I refused to let them tell me that too, so I relate to this). If your content is good enough, people will follow you.

So, after she found herself at 48 without a job, she took her own advice. She started producing her own content. She posted herself and no one could erase it except for her. It felt good and people followed. People engaged, shared, liked, and saved – and that’s what boosted her content even more.

The algorithm, she continued, the content was now reaching an audience that was interested in the content that she was producing. She would eventually work at another TV station and found herself in one of the worst toxic environments she could imagine. A situation that four other women came forward to expose. She has recently become very vocal about gender discrimination in the work place – especially in broadcasting, and she’s not alone. Many other women are starting to speak out and tell their stories.

Recently, she explained, another woman, Lisa LaFlamme, was let go at 58. Another woman with so much more to contribute. The hashtags of keep the gray and gray is beautiful went viral across the world. So where will women turn to make a living when they age out of legacy media according to men? Social platforms where there are no such barriers for age and gender.

But now, she notes, creators like her, once again, face an uphill battle to survive or thrive to their potential, even if only as an unintended consequence. All in an attempt to lift up and (label mic interference. Battery issue?) legacy media who spend less and less on local stories and more and more on syndicated foreign content and syndicated news and sports (it drives me crazy that some of these players are pushing the NFL onto Canada. Seriously, why?)

The government, she notes, is hoping that Bill C-11 will save legacy media, saying they want to make it a level playingfield for everyone, but in doing so, they will hurt thousands of content creators across our country who will lose everything that they have worked so hard to build if user generated content and algorithmic manipulation is left out of this bill. In broadcasting, an executive holds a magic wand and decides who the winners are and aren’t, how much they are paid, and how they are treated. For example, it would have taken her ten years to make what her male radio co-hosts made in just one year.

Now, she says, the baton is being passed to the CRTC to decide who wins and who loses on the internet instead of the users, the Canadian people holding their own wands and deciding what content they want to watch. Why are we going backwards? She’s asking for herself and every other content creator and user to please change Section 4.2 and write it in a way that leaves no doubt user generated content is exempt from this legislation.

(Some of her testimony really hit home for me. I remember thinking that I could very easily make it in the news business as a journalist because of my experience with then really large websites. I’ve had executives tell me that all of that experience and success counts for nothing and was told, point blank, to “come back when you write real news”. I think the people I worked with would the shocked at how badly treated I was in the media industry in that I never even really got my foot in the door. I think many of the people I worked with would say that it is completely insane that I couldn’t even land a low level position writing news articles somewhere. In fact, one person said that he was surprised that I “wasn’t killing it somewhere” by now. The hard reality I faced was that internet success means nothing for these legacy outfits, so all the talent I had built up since 2005 has been exclusively for internet consumption. It’s crazy, but it’s what ended up happening. Still, the internet is the only reason I can still keep my journalism skills sharp to this day. Freezenet, for nearly a decade, has continued to be my response to everyone who still insists I have nothing valuable to give. I’ve already outperformed most of these news rooms I tried to get in on by myself and even outlived one of them who went into bankruptcy. While I probably will never be able to relate to the gender issues, I do relate to the whole idea of striking it out on my own despite being told I’m not worth anything.)

Darcy Michael then opened with his statement. He spoke about his experience with traditional broadcasting. He mentioned that he approached Bell about an idea for a sitcom, Bell Media replied that they didn’t think there would be an appetite for it. In Canada, when one television network says “no”, there are really only two other gatekeepers left to talk to. After all three networks decline to make the show, he was told to try getting it made in the United States first, then come back. Something we love to do to artists in this country is to send them elsewhere to find success only so we can lay claim to them later.

When COVID hit, he noted, filming and standup rightfully shut down. As comedy, for some unknown reason, is not recognized as an art form in Canada, unlike musicians, dancers, writers, comedians are not eligible for grants – which meant that the pandemic left no option to help him or his family. So he pivoted. He decided to take the concept of his sitcom to digital platforms like TikTok partially to entertain himself in the dark days of the pandemic, but also because he wanted to prove the concept of the show – not in the hopes of the networks changing their minds, but because he is bitter and wanted to prove them wrong – and he did.

He continued by saying that fast forward to two years later, across all platforms, he has over 3 million followers online and their TikTok channel alone averages 60 million views a month. For the first time in his career, he is finally reaching households that he could only have dreamed about before. Not only that, but he owns 100% of his content and he is 100% in creative control. With platforms like YouTube and TikTok, artists can be in control of their creations and businesses.

Becoming a content creator, he reflects, has single-handedly become the best decision he has ever made. At the end of the day, user generated content is democracy at work. If something becomes successful online, it’s because that is what the audience wanted. He strongly feels that the decision that is pushed online should remain in the hands of the audience. He understands that the CRTC may not change the algorithm, he thinks that is clearly open for interpretation. He believes that his business deserves legislative protection.

He says that he is speaking to Senators today as a proud queer digital creator with content that celebrates conversations around mental health, body positivity, and human rights. These are all the things he tried to do with traditional networks, but three gatekeepers didn’t think there was an appetite for it. 3 million people disagreed with them.

He notes that he has a career today despite the industry. This all said, he actually does support most of Bill C-11. As an actor, he believes that streaming giants should have to contribute more to Canadian culture. He just doesn’t believe C-11 is the answer to the social media component.

Questions to the Witnesses

Senator Leo Housakos opened the question segment. He directed his first question to Valentyne and said that as a former radio and television personality who has found resounding success in the digital world, and he’s been following her for the last little while on social media, she’s quite an inspiration, he has to say. Particularly given the fact of how she was forced into this transformation wasn’t something she was looking for, it was forced upon her, she took a horrible situation and turned it into a great success – especially because, as a woman, and he would like to have her perspective on this, because one of the things the bill that the government professes it does is that it protect people like herself and so on and so forth. So, he’d like to get from her point of view, does she feel that she needs protectionist legislation? Does she need the government to interfere in order to protect the success that she’s managed to reach?

His other question is that, in regards to this intervention, is this bill, is it something that will help her continue in terms of her success or what obstacles is she afraid of? At the end of the day, digital- individual content producers are worried that this bill is launching obstacles in their way. So, if she could elaborate on some of this…

Valentyne responded that the one thing that she has heard from most content creators who have spoken is that they are losing sleep and they are not alone. She is losing sleep as well. So, she thinks that we are all worried that if algorithms are manipulated that their content won’t hit the right audience. Right now, and she’s also hearing from the Senate is that they want to know how the algorithms work. She just doesn’t understand why they can’t figure that out before they pass a bill that’s going to change everything for Canadians – not only the content creators, but the users as well.

The algorithm, she notes, seems to be doing amazing. She is not a huge content creator, she doesn’t have millions and millions of followers, so she thinks that she is a smaller content creator who is able to generate some sort of income to make a living, to pay her bills, to pay her mortgage, and it is amazing that we can do this in Canada. Years ago, we’d have to go down to the United States to become successful – and now we don’t. We can live in the country that we love and, you know, stay in Stratford Ontario and have your computer and do your digital content and take care of your family. Isn’t that what we want? We don’t want to leave Canada. We love Canada – and at the same time we are promoting Canada across the whole entire world. We have a world wide platform which could potentially mean more money – and that is great for everyone.

So, she says, she’s just afraid that it will push down creators content – herself, push down her content, and so many others. Right now, she feels that the algorithm gets to the audience you want to get to whether it is in Canada or whether it is across the pond.

Senator Housakos then directed a question to Michael where he made a case about how successful he has been in his business and his concerns about the bill. Yet, he did say that there are parts of the bill that he does support. His question is, what parts of the bill, and he knows he’s not a legislature, what parts of the bill does he think are the most fixable to make to palatable in order for it to achieve some of the things the government is trying to achieve without destroying this generated content industry which is clearly growing in spades?

Michael responded that he appreciates the question. It’s important to know that he is not the smartest person in the room, so he doesn’t have the answers to all of that. He genuinely believes that we are trying- right now, this bill is trying to mix two industries that shouldn’t be mixed. When we are looking at entertainment on streaming platforms like Netflix, Disney+, and Apple, he absolutely believes that they should be held to the same accountability as CTV, CBC, and Global. When it comes to social media, he genuinely doesn’t think that they should be involved in the bill – if he can be as simple as that.

Reynolds chimed in and said that he completely agrees with Michael. They are oil and water. They are just totally different. Absolutely different.

Senator Pamela Wallin commented that Michael summed it up quite well. We are trying to put two very very different creatures together and as we’re trying to argue over time, the internet is not a television network. So, it needs a different process. All of the witnesses have said, one way or another, either does everyone want us to be big fish in small ponds, our content is great, so people seek us out and people will find us, and the algorithm rewards that, and that you are Canadian – that fact is an incidental bonus, not key to your actual talent. The talent stands alone. Michael, he said that the success tells you what the audience says it is by responding to you. So, for her, some thoughts on why he thinks that, in 2022, governments want to constrain us. Control this, restrict him. Make them the big fish in small ponds.

Reynolds responded that he thinks that the intention of the bill, at least to give the benefit of a doubt, that culture isn’t steamrolled by American culture. As Menzie said earlier, we are at the mercy or whim of American culture. It’s a huge market next door that we can’t ignore. He thinks that protecting Canadian culture is smart, but he thinks that trying to force it down people’s throats is not smart. There is no need to do that, it’s good enough on its own. We should be investing in it, we should be trying to create the best content that we can that might be helping content creators create more things.

He means, not just himself, but many other content creators could use the help. Could use the help to get Canada out to the world. As she mentioned, that incidental Canadian aspect of the content – if he’s filming something in Toronto or Vancouver or Banff, when he was in Dawson City or something, he is showing the world Canada. That becomes very appealing that has many uses for Canada and many benefits for Canada – and, of course, as Valentyne said as well, he gets to bring money back into Canada which turns into tax dollars which is not a bad thing.

Senator Wallin turned to Valentyne and said that she starred in the movie before she did – an earlier version. So, why doesn’t she tell her a little bit about her relationship with the audience and why she thinks it’s actually a relationship that’s more real and genuine what you get on and off the television.

Valentyne responded that she thinks that for every content creator, she thinks that every content creator would agree that the content comes first. The creation comes first and money comes second. That’s why these creations are doing so well all over the world because its a passion. The money? It’s a bonus. Isn’t it amazing that the term “starving artist” may disappear? Our kids may never know that term. There are so many artists in Canada that are now able to make a living. She knows that she may not be everybody’s cup of tea. So, when you have a bigger audience. Your content will reach the audience that cares about your content.

There are so many examples, she explained, but the one example that she thinks is great is Lee Howard (I think this is his TikTok?). He does horror art. There is a very small market for horror art. He does teddy bears where he sort of mutilates them and puts vampire teeth on them. He’s so creative. He draws and he produces movies and now that he has been on TikTok, she thinks that one of his TikTok’s has a million followers and the other one has 2.7 million. She doesn’t even know about his YouTube or Facebook, but now he’s able to support his family. He is able to sell all across the world through his TikTok. So, this is a Canadian success story.

She then adds that isn’t it amazing that there are only so many television jobs, she isn’t going to get another one. She’s aged out. You never know. She thinks that this is a wonderful thing for Canada. There are so many stories that she could tell the Senator – a million.

Senator Wallin said that she wanted to give Michael a chance so he doesn’t get a chance to just say “ditto”. She wanted to talk to him about the comedy side too because Michael does not benefit from the production funds in the same ways. So, this really is an important outlet for him.

Michael responded by saying that absolutely, he doesn’t have the benefit of being able to apply for any of the funding – the grants program – from the Canada Arts Council. That’s a meeting we should have another day. They’ve always had to work creatively within the confines of the industry. Now, his husband left is six figure job to work for him full time. They were able to pay off his daughters student loans so she’s now out in the work force debt free because of their success online. He always liked to use the anecdote of his first comedy special on Comedy Network 13 years ago. He was paid $2,000 one time. It has still aired almost weekly to this day. He looked at that and said ‘my goodness’ and is billing in 15 second intervals because of the success. (time ran out)

Senator Paula Simons started with Reynolds. They both had the chance to speak in a smaller group setting where he explained his business model and she found it very interesting and others might too. So, she wondered if he could explain how exactly he monetizes his videos and what the importance of his international market is for his overall business plan.

Reynolds responded that there is a couple of ways that he monetizes viewing. The basic way of monetizing through YouTube and Twitter means that ads play before or during his videos, then he gets a cut of that revenue. That’s a small part of his revenue. A larger part of revenue is for branded content and that’s where brands come to them and say that they would like him to create some content, would you like to include their brand and they pay them a fee for that content. Finally, there is the offshoot of that which is merchandise. It’s the other half of what we do which is based on the people who follow and enjoy the content that he creates and that is used as a pedestal for the merchandise. People can be aware of it, buy it, and support them.

He goes on to say that he thinks he mentioned earlier during the meeting that, up until fairly recently, he had to rely on American brands. His first brand deal was with Disney back in 2013. Up until around 2017, Canadian market wasn’t even aware that they could do that. Now they are, he thinks. Now he’s working with more Canadian brands which is great. However, it’s essential for him to have maximum reach. When he does a video that could appeal to something provincial government-wise. Even then, that video will get shared in Ohio or Texas because someone there will say that it looks just like their government or something weird. That turns into ad revenue which helps him. If it only stayed in Ontario, he might only get paid $40 – $50 per video and it wouldn’t be enough to continue doing that.

So, he adds, it’s incredibly important to have that access to the market and it’s important to bring Canada to the world and to get American’s used to the idea of province over state. That’s worth it on its own.

Senator Simons asked Michael how he is able to monetize video’s on TikTok. It’s something that she still finds a bit perplexing.

Michael responded that it’s very similar to Reynolds business model. They have brand partnerships and brand deals. They will do sponsored posts on their channel – both on Tiktok, Instagram, and YouTube. If it was up to his husband, he would look like a race car driver in every video and he would be covered in logos from every company that wanted to pay. They try to limit it to a few ads per month because they still want people to come for their content.

Again, he says, he gets to work with. They have a mandate that Jeremy, his husband, has said that they try to work with 75% Canadian brands and leave the other 25% to American because they want to be driving business back into the Canadian economy. Part of what he’s doing is exporting their Canadian culture to the world. Their reach is global and he thinks it’s exciting. He wants to share that with people inside and outside of Canada.

So, he adds, similar to Reynolds, they have merchandise, they have brand deals, they get paid per view on things like YouTube and stuff. It’s also trickle economics. When people enjoy his comedy, they buy his album on iTunes or Apple or they watch his standup special on YouTube. They are driving more ad revenue and bringing more revenue towards them.

Senator Simons said that her concern is, and it’s not something C-11 fixes, is that all three of them are riding a wave right now where the algorithm is working for them. The algorithm is not an agnostic thing. It is being manipulated by companies to their benefit and they will do well as long as they are benefiting and if they decide, even in an absent-minded way, to change the algorithm in a way that does not benefit them, they will have no control. Even less control than you did working for companies trying to get broadcasting deals. She doesn’t know that there is anything that can be done about the fact that- she just does worry that fascinating content producers like themselves are at the mercy of big international companies – American, Chinese, what have you – that once you are hooked and dependent upon them, he will have no recourse. She’s even noticed for herself in a very small way, she used to post all kinds of videos to Facebook that used to get thousands and thousands of views. Now that Facebook has made a public decision to stop boosting the algorithmic reach of political news, and news in general, she’s not getting anything like the same views because she suspects Facebook won’t- unless she buys ads which she doesn’t think is a very prudent use of Senate funds. She doesn’t do it.

So, she continues, she doesn’t know how he feels about the situation where you have such a power imbalance with these companies.

(I think it’s worth reminding here that the debate on this side of things isn’t about making large “tech giant’s” accountable with their algorithms. In fact, the legislation does nothing for this. What this really is about is the government taking promotional power away and handing that power to the CRTC. The CRTC has a reputation of doing what is best for the biggest players at the top. After all, referring to the CRTC as a “regulator” in general has become a really sorry joke in the last few years. Ultimately, the CRTC is a regulator in name only because they only do things for the benefit of Rogers, Bell Media, the CBC, etc. Everyone else essentially gets the middle finger. So, handing that additional power to the CRTC is an absolute non-starter for digital first creators in general for the most obvious reasons. It’s a choice between letting the larger platforms do what they want and possibly letting the creators survive or giving that power to the CRTC and ensuring the demise of these creators careers and sacrificing the carcasses of their careers to CBC, Global, CTV, and the like. You want to make a law about ensuring that algorithms are accountable, then make a law about it. That is not what is happening here with respect to this bill.)

Reynolds responded that he really despises the algorithm. He succeeded in spite of the algorithm. What social media has done is allow him to create a brand around himself so that people could recognize him and he could take that brand and take it to any platform and people will know it’s him. That’s the value for digital first creation for him.

(the other two witnesses said ‘ditto’.)

Senator Julie Miville-Dechene said that she wanted to take a moment to say how much the witnesses successes are meaningful to her. She said that, as a feminist, she is particularly moved by Valentyne’s success. She, like her, was a television journalist. What a beautiful success story. Unfortunately, he colleague and her have the same line of thinking sometimes. So, she was also wondering, and she put this question to Valentyne, things are going well at present, people are following her, consuming her content, but Youtube and its algorithms are designed to make money for YouTube. They are commercial recipe’s and things could change for her very quickly. So, it seems to be a blind randomness that the algorithm favours her right now, but you do know how it works – well, no one knows how it works because algorithms are a secret recipe. Could she talk to the Senators about that?

Valentyne responded that she really does think that every piece of content has a home. If you create good content, it will find its home. Like she said, she admits that the Senator is right, she doesn’t really now how the algorithms works. She does know that if people like your content, people engage in your content, people share your content, people save your content, content will find its home. She does believe that it is all about engagement: sharing, liking, commenting. Again, she doesn’t really know how the algorithm works. She said it before, wouldn’t it be great if we could figure that out before we pass this bill?

She adds that she doesn’t think that the algorithm is favouring her. She thinks that a lot of content creators work 7 days a week and they really work hard on content. She’s studied it. It’s not like she gets up in the morning and she sits around and says, ‘oh, I’ll say something on social media’. She does research. She works well over 8 hours in a day and she thinks it will show with your content video’s. If you produce good content, you will find an audience and your numbers will grow.

Senator Miville-Dechene asked if she wasn’t afraid that her audience will get tired of it at one point.

Valentyne responded that she thinks so. She thinks that some people will get tired of it just like people will get tired of television shows. How many times have you watched a show and you are invested, This is Us, she stopped watching after two seasons. Everyone gets to the point where everyone gets a little bit bored. In relationships, you get a little bit bored. However, you find something else. So, she had great viewers at one time, they moved on to someone else’s content saying that they are sick of her content, but then you get new followers – whether it is from Canada or whether it is from around the world. That’s just life. So, no, she’s not afraid at all.

She says that she loves social media and she thinks its a great time. She was going to say for musicians, back in the day, Canadian bands that we loved so much like Choc circles, she’s thinking the smaller ones, they didn’t have success in the States and all of those bands, she had no idea, they couldn’t survive on just their music. They had to have full time jobs. Isn’t it great that we live in Canada where we can produce music that has the potential to be heard in other countries and musicians can actually survive. They can make a living living in Canada. They don’t have to leave this country. She thinks it will hurt the musicians more than it would hurt anyone.

Senator Fabian Manning turned to Valentyne and said that, first of all, congratulations on her life so far. She’s doing very well, he thinks. Without getting into the technical aspects of bringing in legislation and amending legislation, what’s the best case scenario for her with this bill as she sees it and worse case scenario for her that she sees it? He invited other witnesses to chime in as well.

Valentyne responded that the worst case scenario for every content creator is if the CRTC has control of the algorithm. She just doesn’t think that is fair. She doesn’t think it’s good for anyone. She thinks we are all afraid of it because they want to keep growing. She thinks it will prevent us from growing. She doesn’t think that there is anything wrong with having a world-wide audience. It keeps our artists within Canada where they belong. The worst case scenario is that the algorithm is controlled. The best case scenario is that the algorithm isn’t controlled – if it was just taken out of there altogether (I’m assuming the provisions in the bill) because she thinks it gives everyone a chance to thrive. It is a level playing field.

Senator Manning asked what are her options? If the algorithms are controlled, what are her options to get around that or rise above that?

Valentyne asked if he means if she is going to leave the country? She doesn’t know as she hadn’t thought about it. If it’s controlled, she doesn’t know how it is going to affect herself or all of the other thousands of content creators. She just thinks that you take it one day at a time. She thinks it will be very stressful for a lot of people. She thinks it’s going to cause a lot of depression for content creators here in Canada. It’s not like we’ve been doing this for the last year (my first YouTube video was posted in August of 2019 if you can believe it). Content creators have been creating content, and making money, and performing in front of a world-wide audience for years. This as been going on for- how old is YouTube? How long has YouTube been around? (February 14, 2005, the same year I started my writing career)

Senator Manning asked if either one of the other witnesses wanted to comment.

Reynolds chimed in and said that he thinks that, worst case, it’s just going to muddy the water. It’s going to make Canadian content creators look inferior and that they are offering a lesser product that needs help by having an audience forced to it. He thinks that the idea that the bill will somehow gain control of YouTube or TikTok’s algorithm, the idea is laughable. He thinks that we won’t win. We are not really much of a going concern for the platforms. They are foreign owned and he thinks that we should try and play our cards better. We should try to work towards our own advantages as opposed to trying to bend them towards our own will.

Michael chimed in and said that he agrees. The promotion of one inherently means the demotion of another. So, when we are looking at manipulating the algorithm, the potential worst case scenario is that we no longer have a platform to make money from. Not only that, but as an artist, to be able to perform in the art that he enjoys making – not to mention that he would probably have to go beg Bell Media’s forgiveness after all of this.

He thinks that, best case scenario, we work towards finding solutions. Does he think that YouTube and TikTok and Instagram and Facebook should be paying its creators more fairly? Absolutely. Is this bill the answer? Absolutely not. This bill will potentially ruin their careers. That’s without sounding too dramatic. Selfishly, he doesn’t want that to happen.

Senator Donna Dasko commented that it is really wonderful to have the three of them here and to listen to her stories. It’s really fascinating. She is going to stick on the topic of algorithms which she finds extremely interesting and important. So, what about the fact that this bill says that the CRTC cannot tamper, cannot give orders related to the algorithm (Read Section 4 again, Dasko). The witnesses are all speaking as though they are going to come along and change algorithms. However, it does state here, very clearly (proceeds to quote the section about not allowing the CRTC to explicitly hand the platforms source code). Doe that not give them comfort that they are not going to do it, it says so right in the bill? Anyone comment, what is the witnesses take on that?

(The CRTC chair himself said that it allows them to demand a specific outcome of an algorithm. The Chair is right because if we are not allowing the CRTC to demand a specific algorithm to be incorporated into their platforms, yet Section 4 is determining what can and cannot be promoted, the only remaining interpretation is that the CRTC is going to demand outcomes of those algorithms. I’ve heard a number of witnesses and Senators that there is some magical third option that changes nothing on the platform, but very few people even say how that even works for all of the platforms. If you are very deliberate in insisting that there is another interpretation, it shouldn’t be hard to spell that out, yet it seems to be an extremely difficult thing to explain to supporters of the bill which tells me, at minimum, that they don’t know for sure how this mystery third way is actually going to work in practice.)

Reynolds responded that it does state that make any effort (Senator Dasko spoke over top of him and said ‘it does’) to modify the algorithm. That’s why he thinks it’s a bit laughable that they would. It’s a bit like saying ‘hey neighbour, I’m going to come in and rearrange your furniture’ and the neighbour locks the door. Good luck with that. We don’t have any control over what foreign owned companies do. They don’t want us to have control over it. However, when he says that he thinks it’s going to muddy the water, it’s not so much that they are going to change the algorithm – this notion that they are going to profile Canadian content – he’s met with the platforms, he’s spoken to the platforms, they basically said ‘listen, it’s going to be a global algorithm, it’s going to work as normal. If we are going to have to put something else in there that this is Canadian and that is suddenly a qualifier, that Canadian label becomes the first keyword for a lack of a better term for how it’s going to be found.’ That is going to negate you for a lot of other stuff.

He says that he’s not worried with the messing of the algorithm, he’s worried of them just becoming a pain to the platforms as opposed to working with the platforms to get the maximum benefit for Canada out of it.

Valentyne chimed in that they could tell different companies like YouTube to manipulate the algorithm. They don’t do it themselves, but they could request that it be done. Correct?

Senator Dasko responded, ‘no no’, and says that the bill says that the CRTC is not going to be able to make orders to change algorithms, it says so here (this is misleading)

Valentyne responded that they are allowed to make rules for discoverability. Correct? (Correct)

Senator Dasko responded that yes, but not to change the algorithm.

Valentyne responded that the only way you are going to make a change to discover an artist is to change the algorithm. How else are you going to make an artist discoverable?

Senator Dasko responded that no, there are many ways and that is the idea is that platforms will come up with other ways because the CRTC cannot change the algorithm.

Valentyne responded by asking so that, why not word it in a way that assures everyone that it will not happen? (Bingo)

Senator Dasko said that it does say so in the bill. (not the outcomes, sorry Senator, but you are wrong.)

Valentyne said that it would be better to take out discoverability.

Senator Dasko admits that discoverability is there, but they can’t change the algorithm as a means to promote discoverability (only via giving platforms a specific code, but outcomes is left in thanks to Section 4.)

Michael chimed in saying that he believes it is open to too much interpretation. Simply by allowing the word discoverability in there, it’s essentially manipulating the algorithm. Whether the wording is different, it’s just a matter of fact. You are going ask YouTube to, say, push this video because it is Canadian content. They are not going to go in and re-write the algorithm behind the scenes, but they are now pushing that Canadian content which is, therefore, manipulating the algorithm. We are comparing apples to apples here unfortunately. It’s the same thing. The wording is manipulative if he can be so blunt. That’s why he can’t stress enough that the bill doesn’t need to involve social media. (ding ding ding!)

He adds that if we are talking about algorithms, Netflix has an algorithm, if you and I are sitting beside each other and opened up our Netflix, our feed is completely different. (Senator Dasko agreed on the Netflix point) In essence, we really do need to separate these two businesses because they really are different. When you are asking a company, whether it’s Netflix or TikTok to push discoverability, you are manipulating the algorithm.

Senator Dasko said that, so he doesn’t believe there are other ways to measure discoverability even though the bill says that algorithms are not to be changed.

Michael responded that he doesn’t. He doesn’t know – he’s trying to be respectful with everyone involved in writing the bill – (time ran out)

Senator Karen Sorensen commented that the panel has been interesting and engaging. It’s like everyone here are entertainers or something. If you are followers up to now, you can thank the people following Senview. It’s a well viewed station. So, C-11 is attempting to update an existing Act after 30 years with no change to address a current situation. The challenge is in creating legislation for the future. Of course, non of them know what it’s going to look like.

Senator Sorensen then turned to Reynolds and commented that in a meeting she’s had with him, he’s elaborated to her about his sons perspective, so, perhaps explain his age and that he’s also a creator on C-11. She knows that he’s not here with him, but could he comment on his thoughts as a young creator?

Reynolds responded that his son is actually already watching Senview right now. He follows him, so that’s worthless. He is a very successful social media creator on his own. He does his own brand deals, he has his own very large following of a half a million followers on TikTok. He has been doing it since he was 11. So, he’s been very passionate about this notion. One of the things he’s found is that we are already at a disadvantage in Canada because things come to America first. Monetization comes to America first. TikTok’s new ad revenue sharing happened today. That came to America first. So, his peers he knows in America are going to benefit from this while he waits until it eventually drains down to Canada.

He explains that his son has said to him that if this happens and it messes him up, maybe he’ll just leave. Maybe he’ll get out of Canada. Maybe he’ll go to LA (Los Angeles) and he’ll just stay and work down there instead. That’s a shame. First of all, as his father, he doesn’t want him to go that far away. It’s expensive to visit, though he likes LA. He thinks that he’d rather him and other creators, because he’s 20 years old, he’d rather that he stayed in Canada and made amazing Canadian content because that’s what he wants to do. He thinks he’s concerned that Canada is not really much of a concern for the platforms. Becoming a pain in the behind is not going to help that. It’s not going to speed things up.

He thinks that both he and his son- they’ve talked about C-11 many times and his wife is sick of hearing about it. They both decided that it would be much better if the government just work with the platforms so they would say that Canada should move up in the spreadsheet. It should be up on the top of the spreadsheet so when you get monetization on these platforms in the US, it should be happening in Canada as well. There should be a CUSMA/USMCA for that. There should be that free trade aspect with that. That would be an incredible boon to Canadian content creators in the industry.

Senator Jim Quinn said that he wanted to go back to the question of algorithms and what it does change, what it doesn’t change and what the Act says and what it doesn’t say. We talked about having clarity earlier in the bill and he’s trying to distinguish what each category means. As he understands it, they (the CRTC) can issue orders. They can issue directives and they can create regulation. What it says in the Act is (didn’t catch that word). Would it be more comforting to add in the words ‘orders, directives’. Would that create greater clarity to that particular area? Any witness can speak.

Valentyne responded that she thinks we all want it taken out.

Senator Quinn said that if it can’t be taken out, would that be something that would bring greater certainty or greater clarity?

Reynolds responded that for him, maybe, possibly. He thinks that if the language is clear in saying that this is a no-go area, he thinks for the platforms, maybe. He can’t speak for them. He doesn’t know if that’s the main issue. That’s sort of the worst case scenario. In the case of 4.2, it’s where things start getting sketchy and foggy and not very clear. However, he thinks that language like that wouldn’t hurt. He thinks that the bill has good intentions, it just needs to be amended.

Michael chimed in that he agrees with Reynolds. If you are going to add that kind of wording, it could help. At the same time, if you are writing a bill that says that the CRTC can’t have any control over this stuff, then why bother having that be part of the bill at all. Just take it completely out.

Valentyne agreed.

(I’m admittedly a little lost on what the new wording would’ve entailed. I would have liked to have heard what the newly amended section would have said before really making judgment on that.)

Senator Leo Housako’s commented that his concerns is consistent with that of the witnesses despite some of his colleagues that continue to insist that there will be no algorithmic manipulation, there is a couple of red flags for him. Number one is that they’ve had the CRTC Chair before this very committee state very clearly, publicly, that this bill gives them the power to force platforms to manipulate algorithms to bring out a certain outcome. That is problem number one. Problem number two is the sponsor of this bill, his colleague, Senator Dawson, in his speech in the Chamber, said that it has that capacity. At the end of the day, if we are having this debate, it’s a debate about protecting Canadian culture from streamers. The only way to do that is to drive algorithms. So, he continues, that is a concern that he shares and he hopes some of his colleagues share as well.

So, his other question is, in light of the answers they’ve gotten from some of his colleagues, he’ll ask the question from a different perspective. If these international platforms are profit driven as his colleagues say, they are creating algorithms to create profits, they can only create profits if they have great content from content creators like themselves. So, if they are making money, it’s because you are making money. That relationship is symbiotic. His question is the following: if we’ve created millions of jobs, it seems, tonnes of revenue for the treasury board of this country, and people like the witnesses are being successful, paying into the legacy film fund, for example with your taxes that you have no access to. So, if these platforms hadn’t of existed, legacy broadcasters in this country, what opportunities would they have provided for the three witnesses in 2022? (I’m guessing zilch)

Michael laughed and said ‘not much’. He said that he is a member of ACTRA and he had to turn down three non-union jobs this year because the union wouldn’t let him do it. So, if he counted those three jobs, he would have had zero income this year from legacy media.

Valentyne responded that for her, she has been very straight forward. She believes that she has aged out and age doesn’t matter on any of these platforms. If you are watching TikTok, you will see creators who are in their 70’s, in their 80’s, and in their 90’s creating with millions of followers. The followers are all over the map. So, it’s a beautiful thing to see. She was watching one woman on one of the social platforms and she was crying. It was a woman who was in her 60s, she said that her whole entire life, she wanted to be an actor, she wanted to be a comedian, and now these platforms are giving her the chance that- she thought it was over. She thought it was too late. With social media, it’s not too late for anyone. There is no competition. There is two ways to succeed in life. You could work hard or you could tear down your competition. She thinks that most of these creators are choosing to work hard and there is no competition. Everyone is equal.

Senator Simons then turned to Michael. She said she wanted to talk about intellectual property (IP). This is a concern she’s heard raised on both sides – about the definition of Canadian content who owns the intellectual property. She’s wondering that based on his experience with Crave and conventional broadcasting, how important is it, does he think, for Canadian creators and producers to own their IP?

Michael responded that it’s impossible. No one is going to do it. No one is going to give it to you. He’s had two full specials filmed in Canada and he doesn’t own any of the intellectual property. That’s all owned by Bell Media. His last special, the one that’s streaming on Crave, he spent 5 years touring that show and writing that show and time away from his family to create that piece. If he wanted to post a clip from that to TikTok, he has to beg Just for Laughs and Bell Media for permission and most of the time, he’s told ‘no’. Then, he has to go and just do that piece in his living room directly into the camera and post it and watch millions of people enjoy it, then he has to put a comment on that and say that if you want to watch the full special, go to which is geoblocked outside of Canada.

Senator Simons commented that if Netflix came to him and said that they are done with John Mulaney and they want him to do the next standup-

Michael responded ‘never’.

Senator Simons said that, well, not never, it is possible. If him and Reynolds get offered a double-bill on Netflix, and they own the intellectual property, would it still be, in his mind, Canadian content?

Michael responded that yeah, he does. He thinks that he is Canadian. He is Canadian content. He said that in his last testimony that he doesn’t know how much more he can- he’s a married gay stoner. You can’t get more Canadian (the room laughed). He is the leaf. That’s the thing that drives him nuts. He doesn’t want to ask the CRTC to prove that he is Canadian.

Senator Housakos commented that all of the witnesses are Canadian and thanked everyone for being there.

With that, the hearing was closed.

Concluding Thoughts

First of all, for timeline clarity, this happened before Senators voted to pass C-11 in 2nd reading (which resulted in my video reaction that seemed to be a minor hit on YouTube somehow), so there was no knowledge by any of the witnesses that the Senators would vote in the way that they would. This analysis is running a little late partly because I, admittedly, grew a bit emotional over what happened and it took a bit to stomach the idea of continuing on with this partly because I began to question if there was really a point when the outcome of this legislation seems to have already been decided.

Nevertheless, I ended up deciding that this is important and I continued on with this anyway.

So, with respect to the algorithm question about whether or not the legislation does or doesn’t allow the CRTC to manipulate algorithms, well, simply put, it does. Valentyne is absolutely correct. If you read the Section that Senator Dasko was referring to, you have to very carefully read the language as it is very manipulative to the reader. Here’s that Section she read out:

Restriction — computer algorithm or source code

(8) The Commission shall not make an order under paragraph (1)‍(e) that would require the use of a specific computer algorithm or source code.

I boldfaced the last bit to highlight the language that is important. The only thing this section bars is the CRTC writing a specific kind of code or writing their own algorithm, then handing that code to the platforms and saying, “here, implement this code”. That is literally the only thing this section bars. It doesn’t bar the CRTC from ordering outcomes of those algorithms. Next, combine it with this section:

Regulations — programs to which this Act applies

4.‍2 (1) For the purposes of paragraph 4.‍1(2)‍(b), the Commission may make regulations prescribing programs in respect of which this Act applies, in a manner that is consistent with freedom of expression.

(2) In making regulations under subsection (1), the Commission shall consider the following matters:

(a) the extent to which a program, uploaded to an online undertaking that provides a social media service, directly or indirectly generates revenues;

(b) the fact that such a program has been broadcast, in whole or in part, by a broadcasting undertaking that

(i) is required to be carried on under a licence, or

(ii) is required to be registered with the Commission but does not provide a social media service; and

(c) the fact that such a program has been assigned a unique identifier under an international standards system.

By combining this section, you are saying that the CRTC can also order platforms to promote certain kinds of content. There is no other way of interpreting this other than the CRTC is dictating outcomes of those algorithms. As was pointed out in the hearing, when you promote one form of content by law, you inherently demote another kind of content. That’s just basic math. If 5 video’s can only be promoted, and the government is telling the platform to promote 2 specific video’s, that means that 2 other video’s that would have been promoted got demoted. That isn’t rocket science, that’s basic math.

Denying that this is the aim of the legislation is like denying that someone drowned in water because he really only suffocated because he inhaled too much di-hydrogen monoxide. Seriously, what the heck else do you call it?

Further, as was also pointed out in the hearing, the CRTC chair came before Senators and offered how he interpreted the legislation. His interpretation is that the legislation gives the CRTC the ability to demand outcomes of algorithms. This is the very guy that will be in charge of enforcing this legislation in the first place. If you are denying that this legislation touches the algorithms in any way, you are already on extremely shaky logical grounds from the get-go at best. You better have a spectacular explanation that overrides all of this. So far, I haven’t seen it.

Drew Wilson on Twitter: @icecube85 and Facebook.

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