Senate Hearings on Bill C-11 – A Look at Hearing 13 (Second Segment)

Special coverage of the Bill C-11 senate hearings is continuing. This time, we are covering the second segment of hearing 13.

We are continuing with our special coverage of the Bill C-11 Senate hearings. It’s worth emphasizing that this hearing took place the day of the disastrous 2nd reading vote that passed the legislation 49 – 19. That brought the legislation one step closer to the abolition of free speech on social media. So, it is unclear if the witnesses were even aware of that vote by this point in time.

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)
Hearing 12 – Scholars/Researchers (3) / Digital First Creators (4)

During the first segment of this hearing, we heard from a statistician and a lobbyist. Both witnesses brought something to the debate. For the lobbyist, he was very open that supporters don’t view this debate as “legitimate”. Instead, he wants this legislation passed so that “debate” can happen behind closed doors so that critics don’t have access. What’s more, the current real debate is open to public scrutiny which contributes to what he considered the illegitimacy of this debate.

For the statistician, while he repeatedly said that there was no data, that ultimately is part of the problem of ramming this legislation through. Supporters pushed this legislation on the basis of conspiracy theories, half truths, and lies. Evidence and understanding was always very low on the priority list and it shows. It is, after all, a huge reason how we got here in the first place.

As always, the video we are following can be found here. In terms of thoroughness, nothing will beat the video or official transcript. Still, we will be happy to offer our summary as well as an analysis. So, with that, let’s dive into this one.

Opening Statements

David Bussières, an artist and member of a lobbying organization, opened with his statement. He said that the platforms are run by foreign companies. He claims that the system that was set up does not help Canadian artists and Quebec artists even less. He spoke from a very nice looking studio with expensive looking guitars decrying how artists aren’t getting paid enough money from the platforms. Further, he claimed that Francophone artists are not being discovered and platforms do not see any benefit of promoting such content. He concludes that we have to adopt this law now because as time runs on, the bigger the problem with respect to big tech.

Sarah Spring of the Documentary Organization of Canada opened with her statement. Her organization supports the passage of Bill C-11. She says that while documentaries are appreciated, the money to finance them is going down each year. She claims that without regulation, the sector is at risk (these are two completely unrelated issues). She then called for amendments to Bill C-11. The amendments revolve around equality, the gathering of race based data, 3 (1) iv, and 3 (1) f.

Valerie Creighton, president of the Canada Media Fund was joined by a colleague to have their opening statement. She says that they support the passage of Bill C-11. As cable revenues are in decline, so is their capacity in the industry they serve (generally, the large corporate establishment. It wasn’t meant to serve smaller creators.) She says that the CMF is well positioned to distribute funding raised through Bill C-11.

One of the central issues, she notes, is the question of Canadian content. She says that the organization launched a consultation on this. She warned against anything that would “dilute” the definition and called for the language to remain “flexible”.

She then goes on to say that another hot button issue is the place of digital first creators. These individuals are the next generation of Canada’s content creators. They are part of a robust content creation system. She says that the CMF invests in these creators through the experimental stream and supports incredibly innovative content for digital first audiences (is there a reason why I’ve never even heard of this?).

She then notes that foreign companies offer new opportunities for the distribution of content.

Questioning the Witnesses

Senator Leo Housakos opened up with questions. He noted that a theme that Senators have often heard repeatedly is that streaming platforms should contribute their fair share. However, they’ve seen other foreign streaming services such as Disney+ and others have spent more than $5 billion across Canada in 2021. This accounted for more than half of all production in Canada. So, why does the CMF not believe that they are paying their fair share and how much more should they be paying? He understands that the answers seem to often revolve around ownership, but it should also be about high quality jobs. These platforms have trained over 200,000 workers and 47,000 businesses have benefited from their investment. Their footprint is far larger than CBC, so he’d like to hear their comments on this.

Creighton responded that all of those points are certainly valid. She agrees that foreign industry is vital and helps keep the jobs. She then goes into the ownership issue. She says that when you make it for someone else, you serve someone else. It is questionable in their view if you count that foreign investment and foreign owned content to be considered Canadian. If it’s to be considered Canadian content, the final decision of how it’s made is decided by foreign owners. It’s a balance issue.

Senator Housakos commented that he can’t get his head around that. If he could use a hockey analogy, if Canadian players can only play for NHL hockey teams owned and operated by Canadian owners, what would we be doing with all of that Canadian talent? A lot of players like Wayne Gretzky made their millions playing for US organizations. Are they any less Canadian? Did they not carry the Canadian Maple Leaf at the Olympic Games? Should they be considered any less Canadians because they played for the Los Angeles Kings or the Boston Bruins? (He then realized that he was over time.)

Senator Julie Miville-Dechene noted that Bussières is in favour of discoverability. She notes that the Senators have heard from other witnesses who make video content that they are against the idea of imposing these videos on the Quebec public because if they impose this, they said that they are going to descend in the priority list. When she says algorithms here, she’s referring to YouTube. She’d like to hear how two Quebec creators can have such an opposing opinion with respect to discoverability and its strengths and weaknesses.

Bussières responded that he did hear Bastien’s (reference to Hearing 9, segment 1) testimony and it was very good, but his statement created quite a stir in the musical sector because we are in favour of discoverability (how nice of you to decide that you speak on behalf of a whole sector in a whole province). Moreover, the CRTC imposes content on Quebec broadcasters, but it is respected half of the time. He feels that, as he said in his statement, that the Quebec public like the cultural references that they make. The Quebec is not exposed to that music.

YouTube, he says, he doesn’t know it very well unfortunately (wow, that’s one way to set your arguments to self-destruct. Still, that should answer the question of why two Quebec creators have two different opinions. Bastien uses YouTube. Bussières does not, yet he feels his opinion is more important than Bastien). That is why he thinks we need to adopt this bill and if there are any specific issues that pertain to other sectors, well, we can have public hearings on that.

Senator Miville-Dechene commented that he is a YouTuber himself, is he not? He has a musical channel, so he does understand the algorithms. The Quebec market is a captive market to some extent at least in radio. Now, things have changed. Now the algorithms enable people to hear other things. So, if he is put on a list, does (don’t know how to spell that) descend in the priority list? Is the difference here that he is a musician and Bastien has video content? Are video’s on YouTube and music different in his opinion? (Probably should’ve paid attention when Nettwerk Music Group testified.)

Bussières responded that he doesn’t consider himself to be a YouTuber. He doesn’t know what the official definition of what a YouTuber is. They have video clips showing content that pertains to his music. Also, we are presuming that people won’t like their work and if we present it, people are going to say “no”, I don’t like Quebec music. He doesn’t think we should presume that at all. He then spoke about quota’s on the radio and how it served Quebec well.

Senator Marty Klyne commented that the Canadian Media Fund cuts quite a swatch of promoting Canadian content. He then asked how audiences are measured for cancon. The US has Nealson in the US, what is the equivalent system in Canada? Also, will this bill measure how we measure cancon?

Creighton responded that measurement is a really interesting question, at the end of the day, it’s all about audiences. She says that the CMF is stuck. Creators, when they come for assistance, still requires a broadcast license. We are no longer living in a totally broadcast world. Audiences are increasingly migrating towards streaming and other digital sources. They use Numeris. However, they know that they are not measuring about 30% of content that they fund because it’s on those streaming platforms. They are working to address this. She says that this is not part of the bill, but once the bill is settled and it goes through the CRTC, measurement is a tool that they will use.

Senator Klyne noted that as cable revenues decline, so does their ability to invest in the industry that they serve. He then asked if this bill is prescriptive, providing a remedy as-is or does it require some adjustments?

Creighton responded that the bill was pretty simple at the beginning. It was to bring the streamers into the system and have them contribute to Canadian content. What has happened over the last couple of years is the extreme polarization. We really got a situation where it is the we or the them. It’s the traditional linear or the digital. It’s the foreign production vs Canadian. That is quite unfortunate because the system isn’t like that. The bill has to remember its original intent and somehow we’ve gotten in very deep and conflicting debates. She doesn’t envy the Senators listening to some of the testimony they’ve heard in the last while and how complicated and dynamic this industry is. She then went into the foreign ownership part of the debate.

Senator Rene Cormier noted that Bussières has a YouTube channel and wondered how he reaches out to his audience. He then asked Creighton about the impacts on creators who are primarily on digital platforms. He asked if the CMF is doing any work in this space. He commented that some witnesses have said that C-11 asks creators to pay into a fund and they won’t be able to benefit from the fund. Is that her assessment of the bill?

Bussières responded that in Quebec, they are a small and niche market. He then called for better rotation so that their content can be streamed more often online. He then talked about wanting to get into the echo chamber so that people will listen to his music more often. (I’m beginning to wonder about some of the terms being used here.)

Creighton commented that they fund digital creators now through the web series and experimental stream. They have a partnership with the Shaw Rocket fund to fund digital first creators. She noted that one of the content developers commented that without the $450,000 she received, she would have never been able to develop her content. She then said that she heard from the ministers that digital first creators are not captured by the bill but the platforms are captured by the bill in terms of who will pay in.

She then said that she is in discussions with both YouTube and TikTok. She commented that they have a YouTube channel. So, they are talking to YouTube and TikTok to find out what digital first creators need (Heck, I can say it right now. If you want to support creators, lower the barriers for entry. A broadcast license, and even a corporate business license, is not something that many creators have. Disqualifying them from accessing the funds on those basis means you keep out a huge swath of creators from accessing the funds) because many of them put up thousands of pieces of content, but will it stick, will it stay, will it sustain itself? So, her understanding is that there is a good conversation to be had there and they are looking at ways to better support those digital creators.

Senator Paula Simons commented that she’s never heard of the content until it was mentioned there in the hearing. She said that she Googled it and is now wanting to watch it. So, here is the challenge, Canadian producers are often creating great Canadian content. They often struggle to get distribution for it. Sometimes, it gets stuck on CBC Gem which nobody watches, sad to say. So, what do we need to do to make sure that the Canadian content created gets seen by Canadians?

Spring responded that she thinks its about discoverability. We have to get excited about discoverability. They need to support Canadian creators to get their content out there in the country and around the world. So, she wants to pass C-11 and have a long and robust discussion and how to support accessing the content. Stakeholders need to have their debate, but the first thing is to pass C-11.

Senator Simons turned to Creighton and commented that it seems to her that it’s not just discoverability. You have to have somebody who is going to platform your show. The CMF can only advance the fund if the producer gets a broadcast license. There are only three or four of them. So, it seems to her that if we don’t work out of system to allow the big international streamers to access our content on a competitive basis, we’re going to be condemning our television and filmmakers content ghettoized. People are not watching CTV and CBC.

Creighton responded that the first thing you need to do is make sure that those resources are available to make that content. She spoke about documentary film makers getting all the necessary points to be Canadian content, but can’t trigger the funds. You need flexibility.

Senator Fabian Manning noted that, earlier when asked about ownership, they made great points about decision making remaining with the owners of the content and the importance of the creatives themselves. However, under the current system, the organization oversees a system where content creators like Darcy Michael (reference to hearing 12, second segment), a comedian whom we heard last week, doesn’t have ownership of content on conventional television. Bell Media, he told them, owns the content, but he owns the content he posts online. So, he was just wondering why we aren’t advocating for a system that gives creators full ownership instead of having someone like Bell Media or Rogers own it.

Creighton responded that many of the broadcasters now are behaving like the streamers. They are trying to get all the rights to distribute their content, but many don’t distribute outside of Canada. So, she thinks we need a system that valued, shared, and balanced. It doesn’t mean that any individual has to own it all or that Bell has to own it all. However, we’ve fallen into that trap in many ways in the country. The important thing about ownership of the story is the authorship piece. So, who is the creator? Bell Media isn’t the creator. That individual is the creator of that original IP. So, their view is that they need a secure place in this environment so that they can continue to not only continue to create that content – it’s not that the broadcasters don’t create content, they do – but the role of independent producers, and independent authors if you like, in this system is that you bring diverse voices and an independence from a corporate way of thinking.

So, she continues, if you want to have really dynamic storytelling within Canada, we need it all. We need different models. Sometimes the broadcasters or the streamers own it, but right now, as she’s said, domestic content is sliding and foreign production service is going up. So, there has to be a redress in terms of balance. It’s not one way or the other. It’s a mix.

Senator Manning asked if she thinks it’s going to happen with Bill C-11 that, in this particular case, as he told them last week, Bell owns his content 100%. Even when he tried to access some of that content, he wasn’t able to do that because Bell owned that. So, is Bill C-11 going to give him that option? Is he going to own his content?

Creighton responded that Bill C-11 could give more of the opportunity to own more of the content if the role of the independent community and the independent Canadian producer continues to be important and is recognized in part of the bill. She thinks that possibility is there. The same thing happens with the NFB. They own the rights to that content and often, producers who work for the NFB can’t get their content back when they want to exploit it when there is interest in that content. So, the system does need to be shifted in many ways and on many fronts.

Senator Manning then said that, in terms of money dispersed to artists and how much of it is dispersed to artists?

Creighton responded that their funds are primarily controlled outside of their decision. The lions share of the money happens when the broadcasters make a decision on what they want to license. So, they do not fund the broadcaster. If a producer has a piece of content they want to get made and aired in the Canadian system, whether it’s Gem or (didn’t catch the name), or any of the broadcasters, they have to come to them with that license. So, they really stay out of that subjective decision making. It’s the market that decides – the broadcaster mostly. Once that producer has that license, they can apply to them and the money then goes in to that production. It doesn’t go into the hands of the broadcaster, it stays with the cost to finance that production. Of course, content is more expensive to make to stay competitive in the world as prices go up. COVID had a big impact on that. So, their role is to make sure they have enough resources to keep the Canadian system healthy, keep producing these great stories and ideas, and the market is the market. The market will always be diverse. It isn’t just Canadian, it isn’t just foreign. It’ll be a mix of both.

Senator Manning asked if some of those funds go back to the artists.

Creighton responded that the fees that they take in the show, yes. If they want to sell it outside of the borders, then they can make some real money.

Senator Bernadette Clement turned to Creighton and noted that she talked about the definition of Canadian content and she talked about it in relation to some doubts she has about the CRTC and their ability to deal with that. So, she wanted her to lean into those comments. She also turned to Spring saying that she’s not always comfortable with these comments that she’s heard out there that Canadian’s only want the best in their echo chambers and that there is this assumption that Canadian content is not always the best and she wanted her to speak to, if she could, the fact that there are a lot of bests out there, but it’s not a level playing field. Not all artists and creators face all of the same barriers, so she wanted Spring to lean into that.

Creighton responded that she doesn’t have doubts about the CRTCs ability to work through this because they are going to have to go to the public and to the industry, widely speaking about the conversation on the definition. Her concern is that if this committee through the legislation that we tie up the definition at this stage, that’s something to be wary of because she thinks it’s a complex and deep discussion with a lot of implications across the system. So, what she was advising is that we retain the flexibility in terms of the bill. They don’t want to come back in this room in five years because everything has changed again. this industry changes on a dime. Every day, you wake up in the morning and something new is happening – a new business model has occurred and legislation is a rather big public policy direction that cannot get into the details because it is the details that will trip us up if we try to do it at this juncture. So, she has full confidence in the CRTC. They’ve been in this business a long time, they’ve regulated a long time, sure, some people are not happy. You can never get consensus in this industry on anything, but she thinks that they are the right place to have a further debate, a deep debate, on these very complex issues.

Mathieu Chantelois of the Canada Media Fund chimed in and said that it’s part of their DNA. We are talking about 500,000 people every year we ask questions and the primary question is about Canadian content and because they do a lot of consultation at CMF, it’s important to start thinking about this and maybe we can make an offer to explore some avenues at the CRTC with respect to indigenous producers who don’t feel included in the current version. (Why do I get the feeling that he was just waiting to add something to this debate? He seemed really excited to finally say something.)

Spring commented that it’s important to say that we don’t have a level playing field right now. We need government regulation. We have content that has been produced over 30 years that doesn’t accurately represent who we are. So, there are a lot of conversation about foreign streamers who are investing into the sector. Let’s allow them to do that without regulation. What that means is that we are not trying to take control and ownership out of what we want to see. We are constantly changing and that changes who we are and what we want to present to the rest of the world. What the legislation does is take control of the situation to say that we have an unequal system. We need regulation. We want to continue to be in the drivers seat of what we are doing so we aren’t having our voices subservient to a dominant American cultural curation actually. We have an unequal situation and it’s up to the government to step in and fix the situation.

Senator David Richards wanted to know who decides what is and is not Canadian content and who decides what is and is not a level playing field. Is it the CRTC that’s going to do that? The Heritage Minister? The Heritage Minister and him might have very different ideas of what Canadian Heritage is. He just wants to know who is going to decide. Is she promoting Canadian content or prioritizing what your idea of what Canadian content should be to a greater market field? He comes at this with a personal experience. For the first 20 years of his writing life, he was called a regional writer. Once he was published in the UK and the States, they dropped that term. So, that’s the kind of smugness that he had to face growing up in the small town of New Brunswick. He’s sure hundreds of writers had to do that over their life. So, who is going to decide? Is it going to be an urban centre ideal or is it going to be the vast country that is going to have some say in the matter?

Creighton responded that he is right, there is a lot of bias in that system and in their view, at the CMF, nobody has a monopoly view on what is a good idea. If you look at the media that is created in this country, it comes from coast to coast to coast. She spoke about how media is different from writing and spoke about the tax incentives causing talent to move to different regions. So, the financing system is totally dependent on a mix of ideas from across the country. Ultimately, the big ideas, the policy direction should come from this bill. Public policy will come from the government to the CRTC. The CRTC will listen to the industry and the public. Then, somebody has to decide at the end of the day. (I’m guessing the short answer is “the government”) That is why she believes that this question has to have a very deep discussion. It can’t be done quickly and it can’t be done without foresight and it has to be done with an eye to the future and how our voice in Canada and Quebec are realized through the content that we make.

Spring said that she wanted to add that there seems to be this idea that if something is not 100% Canadian that that content is no longer going to be present in the system – that it’s all or nothing. They have a very robust service production industry for programs that are not fully defined as Canadian content in terms of accessing that additional taxpayer money that is there to grow Canadian companies. It’s not as though you aren’t doing anything if you don’t have a full 10/10 CAVCO definition of Canadian content.

Senator Donna Dasko turned to Creighton and asked about what she expects to see the impact Bill C-11 would have on their budget as well as the multicultural programs of the CMF.

Creighton responded that they are hopeful that the impact on the budget will be positive. They are hopeful that as more money comes into the system, they will be participating in that process. The lions share of the funding in the major stream is 50% over subscribed. The experimental stream with a lot of very interesting ideas is currently 80% over subscribed. So, often, when you hear people complaining about accessing funding through the CMF, it’s not about being accessible, it’s about the fact that the money only goes so far. It’s primarily the market that decides who gets that money. They hope to get more money to be able to do more. She then spoke to the diversity question as well.

Senator Dasko asked what will C-11 do.

Creighton responded that C-11 will bring in more money. She also notes the diversity portions of the bill, so she hopes that means more funding for a diversity of aspirations.

Senator Housakos asked how it would make more money.

Creighton responded that you create more money by creating good content. You can’t force feed people content. You can’t say here’s cancon content, it’s good for you anywhere in the world. We have tightened up the regulations that the broadcasters can access. Creators need the time and money to develop strong content. She then spoke to some different programs.

Senator Housakos asked how C-11 would make more money.

Creighton responded that it would bring the streamers into the fold so that they would contribute more to the making of Canadian content. Not only service production.

With that, the hearing concluded.

Concluding Thoughts

So, first of all, the CMF said that they are in contact with YouTube and TikTok to try and figure out how they can help fund digital creators. She said straight up that her organization already funds digital creators. I honestly have my doubts because I strongly suspect that the help is actually going straight to creators who have strong ties with the establishment. Whether that is Bell, Rogers, or someone else, I really doubt that it’s going to smaller creators like me who are wholly independent.

So, I am happy to put that thinking to the test. I called the bluff of the CMF. I sent a message directly to the CMF explaining the current project of Freezenet as well as the multimedia aspect side of things and what I hope to do if I received funding. The message was simply to ask if there was a chance that such a project like Freezenet would conceivably qualify. It’s not even getting in to the over-subscription issue where I’m guessing that means there is a large line of project ideas and only so many dollars going around. It’s whether such a project could conceivably qualify in the first place.

CMF, I cut out the middleman of contacting YouTube and TikTok to find people like me. I dare you to prove me wrong and say I would totally be eligible for funding help and prove it by actually sending financial help at a medium term time later on. I would be more than happy to eat my own words on this.

The other part of this hearing that I found quite hilarious is David Bussières seemingly pretending to know everything there is to know with platforms and accusing them of this and that. Yet, in the question and answer period, wind up completely obliterating his own talking points by admitting that he doesn’t even know what a YouTuber is. I found that to be hilarious and contributes nicely to the idea that people who assume that platforms are squashing the voices of Canadian and Quebec voices really have little to no understanding about how the platforms actually operate. The more you know about how the platforms for digital first creators work, the more you are seemingly opposed to the bill. So, it’s probably not a surprise that someone who was forcefully supportive of the legislation has no clue how YouTube works. Way to prove me right, dude.

Drew Wilson on Twitter: @icecube85 and Facebook.

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