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

We are continuing our special coverage of the Bill C-11 hearings. This is the second segment of the 6th hearing.

The special coverage is continuing with the Bill C-11 hearings currently going on at the Canadian senate. Coverage is certainly been challenging due to the quantity of video footage to cover. Still, we are chewing through this as best we can and getting you the analysis and summary of what has been going on.

You can look at our body of work in covering these important hearings below if you want to recap what went down:

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
Hearing 4 – Lobby groups (3) and lobby groups (4)
Hearing 5 – Lobby groups (5) and Lobby groups (6)

Yesterday, we covered the first half of the sixth hearing which featured both platforms and Music Canada as witnesses. The hearing covered considerable ground which meant that there was almost nothing that could really be simplified or shortened. It resulted in a marathon 8,000+ word summary and analysis that took me two days to write (it puts most University essay lengths to shame, so little wonder why it took so long to write). Hat tip to those who are able to read that one from beginning to end.

Some highlights of the hearing include platforms pointing out that CRTC manipulation of algorithms are going to hurt everyone both in scope and outside the scope of discoverability requirements. There was also the warning about how if other countries enact similar laws, that will put Canadian creator content at the back of the line. Another highlight is TikTok pointing out how anything with music in it is currently captured in the bill which is a vast majority of the content uploaded onto the platform.

Additionally, you can almost see Music Canada sitting there trying not to turn white and pass out at the prospect of the biggest area of growth in his business potentially being wiped off the face of the earth. This as he found himself begging senators to listen to what the platforms have to say. This as some Senators struggle to even comprehend the concept of “global audience” even with full detailed explanations presented to them.

So, we are continuing our special coverage with the other part of the Senate hearing. The video has been posted online, so you can follow along with us. While we will try our best to summarize and offer analysis of what was said, nothing will beat the actual video and transcript in terms of thoroughness. Still, we hope you enjoy the coverage anyway.

Opening Statements

Andrew Cash of the Canadian Independent Music Association opened with his remarks. He says that his organizations support the principles behind Bill C-11. He notes the intent is to try and increase opportunities for success in this new global era and he doubts any parliamentarian would disagree with that goal. From there, he said he is there to talk about investing in artists and how to help them succeed in the global environment.

After that, he comments on how artists are using digital platforms to build and grow their audience. That, he says, is also a good news story. That didn’t happen by accident as there have been organizations that fund Canadian artists and help them succeed. That led him to today and Bill C-11. Investments that would go to artists will contribute to a more stable middle class set of artists.

With that said, he says, there are great opportunities if we get Bill C-11 right and serious ramifications if we get Bill C-11 wrong. A system that locks Canadian artists in Canadian only playlists would be unacceptable. How users share and promote Canadian artists have become key in the success of Canadian artists. So, they support the comments by the Minister that user generated content should not be regulated. He also wants to ensure that the money flowing into creator funds do not simply come out of the pockets of creators down the road.

What’s more is that he supports creators voices being heard when this bill ultimately ends up at the CRTC. The hope is that we get this bill right.

Jérôme Payette of the Association des professionnels de l’édition musicale then opened with his remarks. He says that the lack of regulation on online businesses is having a major impact on Canadian music, specifically, Francophone music. Platforms make business decisions based on their interests. The more platforms become unregulated, the more creators struggle to reach an audience.

He cites a 2016 study that notes that SOCAN revenues for French publishers has declined thanks to shrinking audiences in traditional broadcasting. This as revenues for online businesses has grown in the mean time. Only 10% of revenues from online businesses go to publishers and songwriters while the rest of the revenue goes outside of the country. This is due to lack of regulation (Uh, the world doesn’t revolve around you).

From there, he says that French artists are struggling to reach an audience online. He says that statistics show that their artists only represent 8% of market share online while record sales show French artists getting 50% of the market share (an apples and oranges comparison, but OK.) With less revenue going to their artists, it impacts their ability to get heard by audiences on TV. Because of this, their cultural sovereignty is at stake.

Online music services have no financial interest in promoting and supporting diversity of cultural expression, he argued. This results in cultural standardization. He says that for decades, Canada had regulations to protect Canadian artists and it is time to update the Broadcasting Act to reflect the online world.

Then, he said that we must not give in to lobbying by platforms (my irony detector exploded). He argues that platforms are using third party organizations to mislead Canadians (now my backup irony detector exploded). He said that Digital First Canada receives funding from YouTube and TikTok. OpenMedia receives funding from Google. Whether these groups represent Canadians is questionable (they represent Canadians far more than you, I guarantee that).

He says that the text regarding social media should not be changed further. The provisions were debated while going through the House of Commons as both Bill C-10 and Bill C-11 (in secret rushed processes mind you). Taking away provisions in Section 4 risks taking powers away from the CRTC to do its job (Yeah, totalitarianism isn’t going to create itself). This would create a loophole for social media that would impact all businesses.

After that, he says TikTok competes with YouTube which competes with Spotify which competes with radio stations (the last one is wrong). He says we need to apply the law to all businesses fairly. Otherwise, he says, it will become obsolete even as it is passed. Legislation needs to be there as a whole and the safeguards are there (no they are not). The CRTC cannot regulate anything any which way. It must take into consideration of the impact it has on the creative and production industry (The N-Word CBC ruling says otherwise, dude.)

Further, he says no one wants non-commercial content to be regulated. Nobody is asking for that. The (didn’t catch that word) is being used to discredit this reform (the text of the bill is being used to discredit this reform, actually). He says some say that recommending Canadian music will ruin the user experience, suggesting that no one is interested in our music (that’s not what was said). It is also said that recommendations must remain neutral and that the CRTC would ruin everything if it is given the right to ask questions and get information (not what the CRTC is wanting to do).

He says, apparently, recommending Canadian culture would be detrimental to its export and unknowingly penalizing digital creators. He says he disagrees and says that they all have one thing in common: they are about regulation and has nothing to do with the bill that is before you (which is why the platforms and digital rights organizations have been, uh, citing the bill as basis for their arguments against this). If too many regulations are put into the bill, then the system risks being frozen up in the face of a rapidly changing environment. The CRTC needs the proper tools to regulate the internet, he says.

(Basically, this guy is a lying jerk who hates the internet.)

Eve Paré of the Association québécoise de l’industrie du disque, du spectacle et de la vidéo then opened with her remarks. She spoke about how the current regulations have contributed greatly to French artists as they reach audiences on television and radio. (A surprise grey cat appeared in the background.)

She then says that it would not be news if she points out that music consumption is changing in Canada. She says that more people are listening to music online. However, platforms are not regulated and the results is “alarming”. Only 8% of listeners online listen to French language tracks and the market share for French language tracks even drops to 5% (because the platforms serve entire online world, not just Canadians connected to the internet). She describes this as worrying for citizens who are very attached to their culture. Similarly she said that 71% of Quebec listeners agree that platforms should contribute money into the funding of this culture (not similarly at all, that was a fast pivot to a different topic.)

(The cat ran away at that point.)

She says that the work senators are doing supports culture and creators as well as freedom of expression , increases consumer choice and improves democracy (unlikely). She then calls for increasing regulations on everyone (the cat then reappears). She called for regulations to capture platforms and bring them into the scope of the law because they carry out broadcasting. After that, she urges that the bill be adopted because artists are paying the price (well, artists will pay the price if this bill is adopted as-is once the speech suppression hammer starts getting swung.)

Questioning the Witnesses

Senator Leo Housakos opened up questions by noting that some witnesses have stated that changes to the algorithms could have negative impacts on consumer choice but also create an effect where other countries may turn to protectionist measures. Do they think that if other countries to the same and implement protectionist measures would limit Canadian’s access to these markets? (Haven’t had a witness give a good response to this so far, so definitely worth asking again.)

Paré responded that when consumers here Quebec music, they choose it. She says it’s alarming that only 5% of music consumed on these platforms is from Quebec. If this continues, people won’t be able to choose music. She says she is proud in the quality of their content and she knows people will choose it (so, basically, she dodged the question.)

Senator Housakos agreed it’s good content, but is the objective to protect Canadian content at home or to promote French music in Francophone markets? The only way to do that is to use those platforms to open up those international markets and give these creators these opportunities to millions of people who may choose to embrace Canadian culture.

Paré responded, saying that she thinks its important to first reach their own public. She says that she wants a good strong structure to support their artists and that she has no doubt that their talents will be exported (wow, she even dodged that question as well).

Simon Claus (Association québécoise de l’industrie du disque, du spectacle et de la vidéo) chimed in saying that Quebec artists need to have a solid fan base in Quebec first. If they can’t get money here at home, how can they go abroad? (Upload their music?) So, they must be first developed here before being exported elsewhere.

Senator Julie Miville-Dechene commented that she is also very concerned with the lack of Quebec music being streamed on online platforms. She notes that YouTube and TikTok has said that they are a global platforms that make recommendations throughout the world. Algorithms have become the heart of the bill. They are commercial tools. She says that Youtube is telling senators that if a Francophone song is recommended to Anglophone markets, people will not listen to it and the algorithms will push that song further down because it was not selected in the first place. What would you answer to that commercial argument?

Paré responded that she heard earlier about the magic of the algorithm that recommends content that would be enjoyable to the listeners. Perhaps the algorithms could propose French artists that are similar as opposed to the local language, but that would be a language choice. There is content that would resemble that. So, she says, I don’t understand how Francophone content would fall in the rankings if it was put forward (no, I don’t understand that word salad either).

Senator Miville-Dechene responded that what they are hearing over and over again from platforms is recommending to people Francophone music when they don’t want to hear it.

Payette responded, saying that he doesn’t believe that is a good argument. Perhaps we could continue on this, but it is impossible to have an opinion that we don’t know about (Kind of like your whole opening statement?). Right now, he says, French music is not being promoted, so it’s difficult to research something you don’t know. The platforms recommend Canadian content every day. It’s not just algorithms. There are editorial teams and (don’t know that word) teams. That’s a mix of editorial decisions and algorithm decisions. It’s really just editorialized content that uses technology.

He then argues that what the platforms are doing is trying to avoid having to go in front of the CRTC and present information. Right now, they are just providing snapshots. If they are doing great things, he says, then they shouldn’t be afraid to go before the CRTC and providing that information. (The platforms were literally there, a couple of minutes ago, offering to provide whole tours of their systems.)

Senator Fabian Manning noted asked about an amendment about investing and Cancon requirements.

Cash responded, talking about how there is a lot of discussion about what minutia the CRTC may or may not ask of the platforms with regards to Cancon. The rules formed around radio worked well, but we are talking about a global market which is why they are here. He agrees that the rules need to be updated. That’s what they are going to be talking about at the CRTC.

Senator Manning (the key wrongly identifies him as Housakos) noted that many have stated that you have to find a global audience. With the advent of social media, more and more artists are using these platforms to reach a global audience. In the past, they would have had no commercial avenue to do that. With that said, how concerned are you that other countries might pass similar legislation to protect their own artists? This given that Canada is the first country to push for this legislation.

Cash responded that they support Bill C-11. Artists have benefited the discoverability on radio. That said, he said, no one including the platforms wish to limit the potential of artists. When the conversation gets to the CRTC, that will be central. We can’t control what other countries do, but what we can do is build a robust Canadian music industry. They believe that greater investments will lead to greater discoverability on the internet (so, he also dodged the question).

Senator Marty Klyne commented that it seems that there are still concerns that streamers like Spotify will be forced to direct listeners to music they may not want to listen to. He thinks that Canadians want to see Canadian music enjoyed all around the world. The artist needs to be sought for and grow their audiences to be successful. Can the platforms get music promoted or is it up to the listeners to like that artist? Also, do they think that there are some Canadian artists that the platforms want to position will fall by the wayside?

Cash responded, saying that the music industry has always been a complicated cultural sector where it is difficult to predict who is going to resonate with an audience and who isn’t. He doesn’t believe that is very different on platforms. He says that they need strong creative competitive music companies to support artists to get the job done. There is this impression that you just press a button and the music is up there. However, it’s all about when to post and the algorithms and it’s all very complicated questions. This is why, he says, that investments in their sector are so important.

Payette chimed in saying that without regulations, platforms will just work out whats best for them without regard for local content and anything that isn’t in English. Recommending Canadian music to Canadians won’t ruin the Canadian experience, it would improve it. He says that many who use these platforms are teenagers and children who might not know Canadian content enough to look for it. They have to be exposed to it. He says that what they are calling for is YouTube to give recommendations that are Canadian. That is giving more choices.

Claus chimed in saying that quotas were put in place in the 70’s that contributed that have strengthened Canadian artists. He argued that radio said that they can’t play French music because listeners don’t want that, but French artists thrived. He says that we are seeing the same argument again, but the argument is still invalid.

Senator Rene Cormier commented that the platforms have said basically that if my child likes strawberry ice cream, then they will only recommend strawberry ice cream (that’s not what they are arguing). It’s all about respecting what the client wants. That being said, they have heard from artists saying that the bill would put them at a disadvantage because they would have obligations to contribute to Canadian content. It would limit their freedom of expression and reach to global audiences. What is their response to that?

Payette responded that those arguments should be put toward the CRTC. Fear is being used here. They are using lobbying tactics similar to what they did in Europe when they said it would interfere with freedom of expression and it would break the internet. However, Section 2.3 says that they have to consider the impact it has on the music business. (That section is excluding content put out by a museum or a school, so I have no idea what he’s talking about.) We are just hearing anecdotes from platforms who don’t give any real numbers or information.

He then used the ice cream example and said that perhaps the ice cream seller knows about the audience better than others and is putting others at a disadvantage. It’s about algorithms and they don’t have any interest in our culture (Judging by the logic employed, I’m increasingly convinced that it’s just a random word shootout right now.)

Senator Cormier commented that it seems that Canadians are having a hard time describing what is Canadian content. What is so difficult to determine what Canadian content is.

Payette responded that there is already a definition. It’s different from audio and audio visual works. There’s no forms to fill out (that’s a lie times 6) Radio has been able to comply, therefore, he has a hard time understanding how multinational corporations are unable to do so. If you want to explore reviewing the definition of Canadian content, that is possible and the CRTC can do so.

Senator Pamela Wallin commented that when she listens to music on YouTube and create a playlist, it gives her suggestions on whether she might like that or not like that. That is how she creates playlists for music she wants to listen to. If she is selecting country music, they are not likely to recommend opera. That is how that system works. She would have to go out and choose that on a separate day. She is asking if the witnesses are looking for a greater subset of content like content created in Quebec or if they want Francophone content created in Saskatchewan? How specific do they want these recommendations to be?

Pare responded that these are discussions that can be held at the CRTC at a later time. Francophone music is important, but it’s important to put forward Canadian content. Using the example, she says that if she is looking for country music, then those recommendations should be Canadian so she has a chance to discover them.

Senator Wallin responded that this is how the system already works. If she is looking for country music, then the system understands the genre that she likes. She is wondering if they are saying to the consumer that those choices aren’t good enough. Instead, she is being sent to content that the CRTC has decided that they should listen to.

Pare responded, saying that there is a whole ocean of content on these platforms. There is not a single human that would be able to discover all of it. So, based on her preferences, she wants to make sure that there is Canadian content so that you can discover it. That’s what they are looking for.

Senator Wallin responded that she appreciates that, but there is the definition of Canadian content that is very difficult even on a general basis. Is she looking for assurances that all Francophone content be defined as a subset of Canadian content.

Pare responded that they are looking at databases based on the criteria that already exists. They can tell you what song is on each platform based on whether it is Canadian content or Quebec content because they are trying to measure that as well. If it’s possible to determine it, then she thinks that’s possible.

Senator Paula Simons commented that she is old and 30 years ago, it was her job to program the music on CBC music. She would have to go to the vast library of music and it had to be 50% Canadian. It was all very creative. Now, it seems to her, if you turn on the radio, you are lucky to hear fresh music at all (can confirm). She notes that she is sick of hearing Summer of 69. With so much repetition and same music, how much harder is it for a new artist to get on conventional radio for signed artists?

Cash responded that there was a time when Canadian radio was exciting and diverse. He admits that when your music is not selected by the music director, it’s crushing. Having said that, members report that if an artist gets on the air today, it doesn’t do anything materially for the artists career. So, it’s a huge shift. When he looks at young artists now, he sees exciting opportunities that didn’t exist before.

He says that it’s about bringing platforms into the tent and having conversations – some of which are already happening.

Time then ran out and the meeting was adjourned.

Concluding Thoughts

So, we are seeing some very familiar themes with these lobbyists. Whenever tough questions get asked, they dodge the question completely. For instance, when the question about what would happen if other countries enact similar legislation, witnesses either didn’t know or dodged the question. What about if people are being recommended content they don’t like because the CRTC mandated that those recommendations be something else? That question was dodged.

What is striking is that the witnesses constantly just deferred potential legislative problems to the CRTC. Even when the witnesses are asked specifically what they are looking for, witnesses just responded that this is a matter for the CRTC to decide. The witnesses can’t even tell the committee what it is they specifically want. I think that is the product of relying solely on buzzwords and catch phrases while not even considering any sort of substance.

What’s more is that Payette basically proved that lobbyists really don’t have any real standing in their arguments. So often, they conjure up a string of words that may or may not even make any sense. So, instead of laying out what their concerns are, what is being asked, and what is their solution, their answer is to launch personal attacks against those who disagree with them. Specifically, there was that charge that OpenMedia is funded by Google and Digital First Canada is funded by TikTok. I’m not convinced that making defamatory statements in place of substance is really going to convince anyone to believe their side of the story.

Overall, this is a continuing theme where supporters of Bill C-11 have very little substance backing up what they are calling for. They have accusations that the big bad platforms are killing the music industry in Canada, but when it came to showing evidence of this, well, that gets conveniently sidestepped and ignored. What is clear is that they are wanting to force feed content they own onto a global audience and damn the consequences of these pigheaded demands. I don’t see how Bill C-11 supporters even did themselves any favours with this particular hearing.

Drew Wilson on Twitter: @icecube85 and Facebook.

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