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

We continue with the Bill C-11 senate hearings. This time, we are looking at the second segment of hearing 11.

The hearings continue with the second segment of the 11th hearing. While we don’t know how long these hearings are going to last, we do know that they are continuing on for now.

For those who are curious, here is the coverage of the previous 10 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)

Earlier, we looked at the first segment of hearing 11. During that hearing, experts and scholars were testifying. It ultimately continued the theme that the legislation is badly worded when it comes to Section 4. While the solutions varied somewhat, the overarching message is that Section 4 should not continue to exist in its current form. After all, that opens the legislation up to potential legal action.

With that, we now turn to the second segment of this hearing. As usual, the video we are watching can be found here. Also, as always, when it comes to thoroughness, nothing will beat the official transcript and actual video. Still, we are happy to provide a detailed summary as well as offer some analysis of the hearing. So, with that, let’s take you inside this hearing.

Opening Statements

Sophie Prégent of the Union des artistes began with her opening statement. She said that Bill C-11 is extremely important for artists. She says it is high time web giants be subject to Canadian broadcasting rules. She then talks about the a different law related to artists.

Marie-Julie Desrochers of the Coalition for the Diversity of Cultural Expressions then opened with her statement. She spoke about UNESCO. After that, she spoke about large platforms being oligopolies having unprecedented access to consumers. After that, she said that Bill C-11’s approach could not be more legitimate. With just a few changes, the legislation will benefit Canadians with freedom of expression for citizens and creators alike, increasing consumer choice, and access to a diversity of content and supporting their independent industry structure.

From there, she said that her organization has four demands. First, the bill must be as technologically neutral as possible. All businesses undergoing broadcasting activity must be within its scope. She says that they are calling for the sections dealing with social media to be unchanged. Users are not targeted and the CRTC will not regulate activities that do not have a significant impact (that is extremely presumptuous and ignores the text of the bill). However, restricting the law carries with it several risks. Particularly with the risks of access to data and fairness within the system (???).

Second, she called on the continued public hearings at the CRTC that have to do with funding. She also said that, given the scope this legislation adds to the broadcasting act, an appeals process is more important than ever.

John Lewis (No, not that John Lewis) of the Canadian Affairs International Alliance of Theatrical Stage Employees then opened with his statement. He says that they support the efforts to modernize the Broadcasting Act through Bill C-11 to the extent that Bill C-11 aims to create a flexible framework that will enable the CRTC to recognize the different ways individual online services contribute, to tailor conditions of service to online undertakings, and to modernize the definition of Canadian content. He then spoke about how the industry does contribute to the Canadian economy in light of comments talking about “level the playing field”.

(someone in the background is peeling the shell off of a hard boiled egg.)

He further discusses different movie productions and what qualifies as Canadian. He says he supports the passage of this legislation otherwise.

Questioning the Witnesses

Senator Leo Housakos opened up questions. He asked about the witnesses reaction to the CRTC and how the regulator is often a closed doors process as per other witnesses testimonies.

Prégent responded that when it comes to digital media, there is nothing. There is a void, so they got their work cut out for them. She said that there is already are regulatory framework in place for television, so they believe a copy and paste approach could apply to the digital sector. Why not? (because it’s two totally different worlds with totally different ways in which they operate, duh.) She argued that there should be a verification process. There’s already a measure for television, why not copy and paste that to the internet and see how in the short and long term how it works? (because anyone who seriously proposes that clearly doesn’t understand what they are talking about?)

Desrochers chimed in. She said that there is an amendment being brought to the bill that will allow the CRTC to be transparent (and they say it’s crazy to think that lobbyists are writing the bill. She seems awfully sure that this is going to happen even though she’s not a politician).

Senator Julie Miville-Dechene said that the witnesses are very clear on what they are saying. So, she asked about user generated content. She said that the witness represents creators. Now, among creators, they’ve heard from Frédéric Bastien (reference to hearing 9), a French speaker who is proud to earn a living as a YouTube who has a lot of misgivings about these Canadian content standards, changes to algorithms, and so on and so forth. Does the witness also represent YouTuber’s like Bastien? Clearly, there are two levels of discourse here, two schools of thought about Bill C-11 and its inherent potential risks.

Prégent responded that it is true that, on YouTube, there is a level of exploration. They don’t want to engage in cancel culture and stop that level of creative process from existing. It is quite amusing because he is on the board of the Union des artistes. They don’t represent YouTubers. They’d like to represent them. It would be in their bailiwick. They have actors, dancers, and others, but not YouTuber’s for the time being, unfortunately. They’d like them to be represented by them one day and she thinks that, at some point, it would be crucial that YouTuber’s be represented by them.

She went on to say that the fact of the matter is that this creative flourishing must not die. It must be fostered. She believes that Bill C-11 isn’t directly targeting them (it still is). She thinks that Bill C-11 is targeting the big players.

Senator Miville-Dechene apologized for cutting her off, but she has to for time. She asked why the coalition isn’t in favour of deleting clause 4.4 (2) (not sure that’s the correct clause, but close enough. We know what she’s referring to)? It’s the one being challenged, isn’t it? It’s the one that affects smaller YouTuber’s and others concerned.

Desrochers responded that she listened to Bastien’s testimony with great interest and he said that he is also in favour of platforms financially contributing in a way that people like him can benefit. This is an individual who is afraid of the hypothetical measures might harm him on those platforms. This is a hypothetical scenario. She can’t blame him. She wouldn’t go so far as to blame him about being afraid to lose his public, but it’s demonstrable. The CRTC will be seized of the facts when it understands what YouTube is doing, the onus will be on him to make his case (Wow, really going for the “not my problem” approach here. That’s… psychotic).

Again, she claims, it’s hypothetical. Minister Rodriguez has said that those individuals who don’t want to be discovered will be excluded in order of council (That minister also has a terrible track record of being truthful about this bill). She says that, in the legislation, it states that the CRTC must avoid imposing standards that fly in the face of the general policy of radio broadcasting (that made zero sense to me too), so all of that must be factored in. Everything must be decided on the basis of fact. The main issue they have is with the platforms and being unable to get aggregate data from them.

Senator Paula Simons asked about large scale production.

Lewis spoke about the challenges with COVID-19 and the impact it has had on production.

Senator Simons said that she was approached and was told that there aren’t enough people to create productions these days.

Lewis responded that the same problem is with lack of accountants too.

Senator Simons asked about at what point it becomes an issue where American firms are snapping up all the talent here.

Lewis responded that there is that problem too. They spoke about not enough training happening right now.

Senator Marty Klyne asked Lewis about discretion when defining what is and isn’t Canadian content.

Lewis responded that other factors should go into determining what is and isn’t Canadian.

Senator Klyne spoke about examples. Lewis responded to that question.

Senator Klyne and Lewis talked about tax credits and financing models.

Senator Raymonde Gagne said that we don’t hear much from French speaking artists with regard to this bill. She then asked about the response from those who say that the bill will hurt creators.

Desrochers responded that we do hear from the Canadian Francophone creators through the associations that represent them. However, as individuals, there have been none that have appeared before the committee. There are many reasons for that.

First, artists need these platforms. It’s difficult for them to get coverage and they are afraid of what the impact of this will be. Also, these issues are highly complicated and individuals aren’t necessarily comfortable taking part in technical processes such as this. However, coalitions such as there’s takes part in a democratic processes and represents the lions share of artists. So, when there are artists that do show up, they typically speak on their own behalf. They are bringing forward a collective opinion.

She then spoke about the fears. Quite frankly, she said, it’s quite normal for individuals to be afraid of being side-lined (when a bill is about to destroy their lives? Yeah, they have every reason to be afraid). There are two myths that need to be debunked. Will C-11 hurt discoverability (yes)? Well, that presupposed about how the regulation will be brought to bear. We don’t know how this will happen. We don’t know how these services work and what the mechanisms will be in scope. (“I don’t know” isn’t debunking anything)

She said that the other premise that is incorrect is that Canadians might not like the Canadian content that is being offered to them (this glosses over a huge swath of facts and how platforms actually work and comes to a misleading assumption). She says she thinks the platforms know how to work. They have a lot of data about Canadians, but, perhaps, they don’t know enough about their content to properly represent the diversity of content produced in Canada in various languages. So, she says that we need to trust them and trust ourselves that if Canadians are doing well, then Canadians are going to like what we produce and we should rely on that. (What part of “just trust us isn’t good enough” don’t you understand?)

Prégent said that she doesn’t have much to add to that. She offered to table a document that deals specifically with music.

Senator Gagne then asked about Unesco and a local production system. Desrochers answered these questions.

Senator Bernadette Clement commended that we should put trust in Canadians. She said that Canadian’s will like what is home grown. That should be something we take for granted to an extent (still misunderstanding the basis of that concern). She then asked about an amendment and she asked about the lack of trust in the federal institutions like the CRTC (well, actually making rulings that actually benefit Canadian consumers would be a start because that is something they have boycotted doing for quite a while now.)

Prégent answered the first question. Christine Fortin of Union des artistes elaborated on the answer.

Desrochers answered the second question by saying that, as far as the CRTC is concerned, she doesn’t think the answer is to be found in the legislation. Obviously, we need the CRTC to have more resources with this new mandate (yeah, like, unlimited resources plucked out of thin air just to handle regulating the Internet?) and the government announced its intention of doing so (good luck with that). In order to restore Canadian’s confidence in democratic institutions, she thinks she should ask this question on the world stage, quite frankly (quite frankly, wrong place to direct such a question). The sharing of information and transparency is crucial. So, with increased funding, she thinks the CRTC will be able to produce more studies and research as seen elsewhere across the world.

She further says that regulating new services will require new knowledge, new understanding about the ecosystem, and this bill will finally enable them to collect the data they need in the understanding of this ecosystem.

She then called for the return of public hearings. She also thinks that the CBC N-Word decision needs to be reviewed.

Senator Donna Dasko asked about IP ownership and how that impacts what is considered Canadian content. She further asked about how Bill C-11 should be changed to address this.

Lewis responded by calling the current list of categories that get considered very elitist. He spoke about different subscription based services as well as budgets.

Senator Dasko referenced Dwayne Winseck’s testimony (first segment of this hearing) and his comment about partial IP and how that could be a considering factor. She Lewis about that.

Lewis responded that he gave him his card because the evidence he gave was compelling. He suggested that the structure of IP should be looked at.

Senator Dasko asked if the CRTC should look at that and that it shouldn’t change the legislation.

Lewis agreed.

With that, thanks to no further questions, the hearing was adjourned.

Concluding Thoughts

I have to admit, considering how many chunks were actually fairly sleepy, I was quite shocked about how dramatic things got in the middle. That was specifically in reference to Desrochers throwing fellow board member Bastien under the bus like that. I mean, when her colleague said that she’d like to represent YouTuber’s, then something like that happens in the very same hearing, how badly do you want to be a member of an organization like that? Disagree with the narrative we have and you will be sent alone into the lions den. I mean, yikes.

While it was extremely dramatic, I also found that moment very revealing about the position of Bill C-11 supporters in the end. After all, they try and make a big deal about how Bill C-11 doesn’t regulate user generated content and how they won’t be affected by discoverability requirements, yet at the same time, when the Bastien example was raised, they all but inadvertently confirmed that this is exactly how they anticipate things going down. What’s more, the careless nature of it all really put that cherry on top of things.

So, really, that was quite a moment on a number of levels. Otherwise, not a lot of new ground was covered. It may have a few passing moments that is somewhat interesting, but nothing particularly new to give at least as far as the angle we are watching things from. This is besides that moment of drama that really came out of left field, of course.

Drew Wilson on Twitter: @icecube85 and Facebook.

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