What was not surprising was how much Conservative supporters like it. What was a little surprising was the traction media-bashing also gets from Liberal voters. The hashtag #CanadianMediaFailed often tunes you in to how grumpy some Grit supporters get about news coverage that doesn’t go their way.
Lest this report be misinterpreted as “whataboutism,” I appreciated the reality check provided by Lawrence Martin in his recent Globe column.
The Commons Heritage Committee began study of Bill C-18, the Online News Act, otherwise known as the FaceGoogle-Must-Pay-for-News-Content legislation.
The timeliness of C-18, and an ominous portent for local news, was revealed this week by a report in the Globe that the co-owners of the Toronto Star have fallen out, quite possibly over job cuts. Nordstar 50/50 partners Paul Rivett and Jordan Bitove are off to court.
The political theatre over Bill C-11 the Online Streaming Act is not as bad as it was last spring during the Conservative filibuster of the Heritage Committee hearings, but the less partisan Senate deliberations are still generating as much heat as light.
I posted about a sleeper issue in C-11 that got some deserved attention this week at the Senate hearings: the Bill gives federal cabinet sweeping powers to override the CRTC on detailed regulatory matters.
Canada’s Journalists for Human Rights held a fund raising gala on Thursday night featuring journalists from Afghanistan (Humaira Habib) , Kenya (Wanja Gatu), and Canada (the Globe’s Mark MacKinnon). Unifor National President Lana Payne, a former journalist, also spoke.
Last year the federal Liberals assigned Ontario MP Chris Bittle as Parliamentary Secretary to the Heritage Minister to neutralize Conservative MP Rachael Thomas’ disruptive tactics in Committee.
It worked to an extent. But like Thomas, the combative courtroom lawyer Bittle has no off-switch.
Last month he engaged in a Twitter spat with Michael Geist over the government’s complicity in hiring Laith Marouf as an anti-racism consultant despite Marouf’s anti-semitic and racist Twitter activity. One of Bittle’s Tweets implied Geist was a racist (of course he’s absolutely not) for criticizing Diversity Minister Ahmed Hussen: Bittle apologized but not before having embarrassed himself.
Both DFC and YouTube oppose Bill C-11’s provisions regarding user generated content and online discoverability of Canadian content.
Bittle first made the accusation public during Heritage Committee hearings last June and the important details are as yet unclear: Benzie may have been non-compliant in registering DFC’s connection to YouTube while lobbying MPs.
Having made his valid but limited point about DFC’s relationship with YouTube in June, Bittle still filed a formal complaint. Perhaps it was to hold the truculent representatives from YouTube Canada accountable. Benzie and the Conservatives call it witness intimidation.
The bottom line is that this week this tempest in a teapot is getting more attention than the Bill itself.
That wasn’t the only political theatre around C-11 this week. The other was the Senate’s near-exclusive focus on discoverability and the impact on algorithms that drive traffic on hosting platforms TikTok and YouTube.
The Senate is recycling most of the witnesses who already presented on C-11 to the Heritage Committee in June.
The latest slogan from critics is that the CRTC will be “picking winners and losers” among competing YouTube videos if discoverability provisions go forward.
No one explains how of course.
When you keyword search a topic in YouTube you get numerous but limited recommendations ranked in order of responsiveness to the inquiry (or at least we assume so in the absence of YouTube being more transparent about its algorithm).
If YouTube was to tweak its algorithm to spotlight or rank higher any Canadian videos available on the topic—the Bill says it’s up to them how they do it— you may see a little Canadian flag beside one of the videos in the top recommendations, assuming the YouTubers’ video file metadata has been entered accurately and the algorithm is intelligently programmed.
The CRTC would have to decide if the Canadian flag on a recommendation that is otherwise responsive to the inquiry is enough to meet discoverability requirements, or whether Canadian videos actually get pushed up a notch or two.
Yes, it’s possible in this scenario that the bottom ranked video gets booted off the list of recommendations or, as Internet Society VP Konrad von Finckensteinsuggested, the list simply gets longer.
The Internet will remain unbroken.
Critics did raise a couple of troubling points to be considered. The first is that YouTube might just mess it all up and alienate audiences who might blame individual YouTubers.
Another is that other countries (especially the U.S.) might respond with matching preferences for their own YouTubers and our Canadian creators will be net losers.
The latter point is worth the CRTC studying in depth before taking any action on discoverability. The Commission may well end up making limited use of its new powers and/or granting exemptions to YouTubers who are not conventional broadcasters.
I have buried the lede about important stuff by giving so much attention to C-11 TV’s bread and circuses.
At Tuesday’s Senate hearing you could visibly observe Senators pick up on the in-depth expertise being offered to them by witness Monica Auer who is Executive Director of the Forum On Research and Policy in Communications, specializing in CRTC regulatory issues.
Auer has spotlighted a serious threat in C-11 to the Commission’s independence from government.
Section 7(7) of the Bill amends the Act’s long standing provisions that permit the government of the day to issue broad policy directives to the Commission.
For example in 2013 the Harper governmentdirected the Commission to expand consumer choice in television, including the option for subscribers to buy channels on the stand-alone basis of “pick and pay.” The Commission went on to issue a very lengthy and detailed ruling on that as part of its “Let’s Talk TV” review of broadcasting policy in 2015.
That ruling followed a year of public consultation, detailed evidence, and thoughtful contemplation by Commissioners with far more non-partisan expertise than their government masters.
But section 7(7) in C-11 would allow the government to write detailed regulatory outcomes into the policy direction itself ——more than likely penned by a political staffer in the office of the Heritage Minister of the day——and direct the Commission to rubber stamp them.
This section 7(7) power arrogated to the federal government would apply not only to regulatory matters (like pick and pay) but to the “orders” that will become the de facto licences for online undertakings like Netflix, Disney Plus, or Bell Crave.
As “licensed” linear broadcasting platforms are displaced by “ordered” online undertakings, the federal cabinet will accrue the power to dictate the minutia of individual broadcasters’ terms of operations.
Here are the provisions in the Bill, both the expanded cabinet powers and the Commission responsibilities they can be substituted for, including the definition of Canadian content:
7 (1) Subject to subsection (2) and section 8, the Governor in Council may, by order, issue to the Commission directions of general application on broad policy matters with respect to
(a) any of the objectives of the broadcasting policy set out in subsection 3(1); or
(b) any of the objectives of the regulatory policy set out in subsection 5(2).
(7) For greater certainty, an order may be made under subsection (1) with respect to orders made under subsection 9.1(1) or 11.1(2) or regulations made under subsection 10(1) or 11.1(1).
9.1 (1) The Commission may, in furtherance of its objects, make orders imposing conditions on the carrying on of broadcasting undertakings that the Commission considers appropriate for the implementation of the broadcasting policy set out in subsection 3(1), including conditions respecting
(a) the proportion of programs to be broadcast that shall be Canadian programs and the proportion of time that shall be devoted to the broadcasting of Canadian programs;
(b) the proportion of Canadian programs to be broadcast that shall be original French language programs, including first-run programs;
(c) the proportion of programs to be broadcast that shall be original French language programs;
(d) the proportion of programs to be broadcast that shall be devoted to specific genres, in order to ensure the diversity of programming;
(e) the presentation of programs and programming services for selection by the public, including the showcasing and the discoverability of Canadian programs and programming services, such as original French language programs;
(f) a requirement for a person carrying on a broadcasting undertaking, other than an online undertaking, to obtain the approval of the Commission before entering into any contract with a telecommunications common carrier, as defined in the Telecommunications Act, for the distribution of programming directly to the public;
(g) a requirement for a person carrying on a distribution undertaking to give priority to the carriage of broadcasting;
(h) a requirement for a person carrying on a distribution undertaking to carry, on the terms and conditions that the Commission considers appropriate, programming services, specified by the Commission, that are provided by a broadcasting undertaking;
(i) a requirement, without terms or conditions, for a person carrying on an online undertaking that provides the programming services of other broadcasting undertakings in a manner that is similar to a distribution undertaking to carry programming services, specified by the Commission, that are provided by a broadcasting undertaking;
(j) terms and conditions of service in contracts between distribution undertakings and their subscribers;
(k) access by persons with disabilities to programming, including the identification, prevention and removal of barriers to such access;
(l) the carriage of emergency messages;
(m) any change in the ownership or control of a broadcasting undertaking that is required to be carried on under a licence;
(n) the provision to the Commission, by licensees or persons exempt from the requirement to hold a licence under an order made under subsection 9(4), of information related to
(i) the ownership, governance and control of those licensees or exempt persons, and
(ii) the affiliation of those licensees or exempt persons with any affiliates carrying on broadcasting undertakings;
(o) the provision to the Commission, by persons carrying on broadcasting undertakings, of any other information that the Commission considers necessary for the administration of this Act, including
(i) financial or commercial information,
(ii) information related to programming,
(iii) information related to expenditures made under section 11.1, and
(iv) information related to audience measurement, other than information that could identify any individual audience member; and
(p) continued ownership and control by Canadians of Canadian broadcasting undertakings.
10(1) The Commission may, in furtherance of its objects, make regulations…
(b) prescribing what constitutes a Canadian program for the purposes of this Act;
Regulations — Canadian programs
(1.1) In making regulations under paragraph (1)(b), the Commission shall consider the following matters:
(a) whether Canadian producers, including independent producers, have a right or interest in relation to a program, including copyright or any other right or interest, that allows them to control and benefit in a fair and equitable manner from the exploitation of the program;
(b) whether key creative positions in the production of a program are primarily held by Canadians;
(c) whether a program furthers Canadian artistic and cultural expression;
(d) the extent to which persons carrying on online undertakings or programming undertakings collaborate with independent Canadian producers, with persons carrying on Canadian broadcasting undertakings producing their own programs, with producers associated with Canadian broadcasting undertakings or with any other person involved in the Canadian program production industry, including Canadian owners of copyright in musical works or in sound recordings made in Canada; and
(e) any other matter that may be prescribed by regulation.
Regulations — expenditures
11.1 (1) The Commission may make regulations respecting expenditures to be made by persons carrying on broadcasting undertakings for the purposes of
(a) developing, financing, producing or promoting Canadian audio or audio-visual programs, including independent productions, for broadcasting by broadcasting undertakings;
(b) supporting, promoting or training Canadian creators of audio or audio-visual programs for broadcasting by broadcasting undertakings; or
(c) supporting participation by persons, groups of persons or organizations representing the public interest in proceedings before the Commission under this Act.
Order — particular broadcasting undertaking
(2) The Commission may make an order respecting expenditures to be made by a particular person carrying on a broadcasting undertaking for any of the purposes set out in paragraphs (1)(a) to (c).
Members of the Commons Heritage Committee are back on Parliament Hill following summer break —possibly still numb from the filibuster and closure on Bill C-11 the Online Streaming Act— and ready to study the Liberal government’s next media bill, the Online News Act C-18: sometimes known as “FaceGoogle pay-for-news” legislation.
In two days of Committee hearings including today, MPs invited a number of witnesses who sparred over whether the Bill is a good or bad thing.
I’ve written in support of the Bill several times here, here, here and here. For the opposing view, you can read Michael Geist here, or former Calgary Herald Editor Peter Menzies here. There is also an article by Internet Society Vice President Konrad Von Finckenstein that identifies the problems he sees in an Act that he clearly doesn’t like.
If I may be as helpful as I am opinionated, what follows is a synopsis of the Bill’s provisions with select bullet points on what some say are trouble spots.
Sections 3 and 4 describe the overall objective of the Bill (“enhancing fairness in the Canadian digital news marketplace”) as well as principles favouring freedom of expression and journalistic independence when the CRTC or the courts are asked to interpret the Bill. Section 2 includes some key definitions.
Section 2 of the Bill says the scope of bargaining for fair compensation includes news content that is accessed or indexed through links or partial text, likely the legislative draftspersons’ anticipation of regulatory avoidance strategies by Google and Facebook. Michael Geist says this is overreach.
Sections 6 to 10 establish which digital platforms are subject to the Act as “Digital News Intermediaries.” (DNIs) At the moment, it’s anticipated the only DNIs will be Google and Facebook as they were in Australia.
Sections 11-17 describe the exemption option for Google and Facebook should they be able to convince the CRTC they have made enough voluntary deals with Canadian publishers and broadcasters for fair compensation, dispensing with the need for formal designation and arbitration proceedings. This exemption route prevailed in Australia.
The key criterion for granting DNIs an exemption is whether the platform can strike voluntary deals with “a significant portion” of news organizations, implying that some news organizations could be left out in the cold without a deal. In Australia, Facebook refused to make a deal with a small public broadcaster and the investigative news site The Conversation but still achieved an exemption under a similar provision in the Australian legislation. Small Canadian news outlets are worried this could happen here. The architect of the Australian legislation, Competition Commissioner Rod Sims, appeared before the Heritage Committee to reassure small news outlets that their counterparts did very well in Australia. Nevertheless expect this to be a focus of future hearings. As well, the “two employed journalists” threshold that small rural papers must pass over to access fair compensation under C-18 is already a point of contention within the Committee.
Sections 18-22 sketch out the process for formal bargaining between DNIs and news organizations (dubbed Eligible News Organizations – ENOs). Sections 27-31 cover how news organizations get certified as ENOs and thereby access bargaining with DNIs over fair compensation. Section 49 refers to a bargaining Code of Conduct that the CRTC is charged to develop to make bargaining go more smoothly.
Section 27(1) sets the bar for the kind of news journalism required before a news outlet can be certified as an ENO. There appears to be a loophole where daily newspapers already certified under the federal government’s “QCJO” aid to journalism funding program are required to provide original news, but smaller publishers and any broadcasters are not. Geist is all over this and, forgiving his hyperbole, I agree.
Sections 33-41 describe the final offer binding arbitration that is available for ENOs if they can’t get a fair deal from Facebook or Google. It’s sometimes called “baseball style” arbitration where the arbitrator can only pick one of the two proposals in their entirety, without compromise.
There are a number of technical provisions in the Act dealing with how the bargaining regime intersects with the Copyright Act (sections 23-32) and the Competition Act (Sections 47-48).
There are conflicting academic views on the copyright and trade compliance features of this Bill. Compare Geist to the University of Calgary’s Hugh Stephens on this.
There is an important “undue preference” provision in section 51 that limits Google and Facebook’s discretion in ranking news content (it can’t be unjust, undue or unreasonable).
There are several sections on how news organizations and the CRTC can compel information from Google and Facebook so that the bargaining and CRTC proceedings aren’t frustrated by the asymmetrical information gap about the inner workings of their platforms.
Because of this information problem, as well as the public’s and news organizations’ interest in transparency, section 86 speaks to an annual audit and information report about the commercial value of the agreements that are struck under the Act.
David Skok, CEO of The Logic, says small news organizations need “real time” access to information on other bargaining outcomes in order not to be shortchanged.
This week’s update begins as last week’s: a story of a moment’s lack of judgment by a Parliament Hill journalist, exploited by the Conservative Party to continue its vilification of the media.
Last week the story was about the confrontation between David Akin of Global News and Pierre Poilievre.
This week the focus was freelance journalist Dale Smith who poked Conservative MP Garnett Genuis’ for his conduct in Question Period:
Smith has solid journalist credentials, but according to some a reputation for “snark.” His Twitter feed has an edge.
You can follow the ensuing series of events here in the CBC account of it.
But to summarize, the Tories alleged a threat of violence by Smith. Genuis said he feared for his own safety. Conservative voice True North equated Smith’s Tweet to other, less ambiguous threats made against politicians.
The Globe’s Andrew Coyne denounced the Conservatives for engaging “in performative bullshit.”
Smith was defiant and refused to apologize.
The Conservatives upped the ante and demanded Smith be booted from the Parliamentary Press Gallery and, effectively, reporting on federal politics.
As expected, the self-governing Press Gallery refused the demand but not without admonishing Smith:
“The Gallery wishes to dissociate itself from the comments made by this journalist … the Press Gallery would like to emphasize that intimidation, in all its forms, is unacceptable … it is important to remember that it is not for politicians to determine who is or isn’t a member of the Gallery.”
The Toronto Star’s Bruce Arthur, who wrote an excellent column on Akin-Poilievre encounter last week, had this to say about Smith-Genuis:
Like l’affaire Akin last week, the problem is a major Canadian political party has decided to demonize the media as a strategy, and acts in bad faith while doing so. This, however, was an escalation, because the Conservatives demanded the press gallery and Parliament intervene over a journalist’s hacky tweet. The gallery operates under the purview — usually and appropriately at arm’s length — from the Speaker of the House. Imagine what mischief a dedicated anti-media Conservative Party in power could get up to. Imagine how bad this could get.
To add my own opinion, the “how-bad” is more than the harassment, vilification, and doxing of reporters, or Conservative attempts to ban unfriendly journalists.
“Bad” is also about turning off audiences and fueling news avoidance.
“Bad” is also the latest feature of media bashing: Internet trolls that counterfeit news posts to “prove” the alleged bias of professional journalists.
Global News’ Rachel Gilmour, a frequent target of the populist troll army’s ugliest harassment, retweeted a couple of these counterfeit posts aimed at her:
The Senate hearings on Bill C-11 the Online Streaming Act continue.
Senators are giving critics lots of air time to dwell on the controversy over user generated content and platform algorithms. Commentators like myself accommodate this oxygen-sucking debate by writing about it.
In my latest post, I suggested that the competing claims about the need for, or danger of, discoverability tools to promote Canadian content mostly concern the music industry and ought to be meticulously examined by the CRTC after C-11 passes into law.
Not getting enough public attention are the provisions of Bill C-11 weakening the CRTC’s ability to ensure that Canadian programming services get carried on foreign-owned online platforms operating in Canada. Senators do appear to be paying attention.
…consider how toensure that, as the national public broadcaster, the Canadian Broadcasting Corporation continue to make asignificant contribution to the creation, presentation, and dissemination of local news, children’s programming,original French-language programming, and programming produced by independent producers.
Those instructions explicitly reference some of the worst of the CRTC’s ruling but are less clear about others such as scheduling of Canadian programs during evening prime time hours and the relationship between digital and linear television programming expenditures.
In a previous post I suggested the petition gave cabinet an opportunity to signal a broader consideration of the CBC, slated for review by the Minister’s 2021 Mandate Letter. There’s no sign of that yet, although there is an appetite for it.
The House of Commons Heritage Committee (CHPC) began its examination of Bill C-18 the Online News Act. The legislation is intended to rebalance the bargaining power between Canadian news organizations and digital platforms Google and Facebook over the value of the media’s intellectual property (I hesitate to use the loaded term “copyright.”). I previously wrote about C-18 here.
There’s a Globe and Mail report on the first day of Committee hearings here. There is also a helpful account on Cartt.ca.
In US Congress, a slightly different version of C-18 emerged from the Senate Judiciary Committee’s “mark-up” hearing and will go forward to the full Senate after sponsor Amy Klubachar (D-Minnesota) struck a deal with Ted Cruz (R-Texas) over the issue of platform content moderation.
I may have already spilled too much ink over the BeerGate controversy involving CRTC Chair Ian Scott, Bell CEO Mirko Bibic, and Tek Savvy’s appeal of the Commission’s Wholesale Internet Broadband pricing decision.
This summer Scott was cleared by federal Ethics Commissioner Mario Dion of any violation of the Conflict of Interest Act.
In reviewing the legal filings on the Tek Savvy appeal to Federal Court I noticed a reference to the CRTC’s internal Code of Conduct which, the Bell factum correctly points out, contemplates Commissioners engaging with stakeholders at social events.
That got me interested in reading the CRTC Code for myself. When I couldn’t find it online I requested it from the Commission. The Commission responded that it was confidential and refused to release it.
With the assistance of a couple of colleagues I discovered the Code had in fact been posted on the Commission website as late as June. Thanks to the Wayback tool, I got a copy and indeed it verifies what Bell is telling the Federal Court:
If you are interested in the ongoing debate about the wholesale pricing of Internet and mobility services, or the dynamics behind the Rogers-Shaw merger, there is a series of articles in the Globe and Mail that focuses on the capital commitments to building fibre networks.
The articles are based on interviews of the CEOs of Shaw, Bell and Telus.
Google isn’t having it. They sent YouTube Canada lawyer Jeanette Patell to tell a Senate Committee reviewing Bill C-11 to draw a line in the sand on algorithms.
No CRTC-dictated “corrupting signals”. Period.
No CRTC “picking winners and losers” on YouTube’s hosting platform. Ever.
YouTube’s algorithm is 100% based on user consumption, said Patell, and it must stay that way. When pressed by Senators to explain the manner in which YouTube would be willing to promote Canadian content she responded in an elevated voice, “it’s all in the name, YouTube.”
No doubt Senators found that helpful.
When Senator Donna Dasko finally insisted she sketch out what YouTube will eventually tell the CRTC it is willing to deliver on discoverability, Patell said Google would consider non-algorithmic marketing tools in collaboration with “the industry,” as if appearing in front of Canada’s national broadcasting regulator was too distasteful to contemplate.
And that, was that. Good Parliamentary television but not illuminating.
The illumination came from others appearing before the Senate Committee on Wednesday night.
But first a recap is in order.
I posted last week that the Bill C-11’s discoverability controversy is a more focussed issue than most assumed.
That is, the French-language music associations in Quebec are the main drivers of the issue. Jérôme Payette, Director-General of the Association des Professionnels de l’Edition Musicale (APEM) was also in front of Senators last night to speak about the dramatic drop-off in the consumption and revenues of French language music since streaming platforms surpassed radio as the dominant music platform:
“Since 2016, the revenues paid by SOCAN to Quebec music publishers have fallen by 24%. Revenues from traditional sources such as radio and TV are decreasing, and Canadian music is unable to achieve a significant share of revenues from online businesses, which are nevertheless growing.
“Only 10% of the sums collected in Canada by SOCAN from digital broadcasters are paid to Canadian authors and composers, the rest goes abroad. The decline is dramatic compared to traditional broadcasters, and it is explained by the lack of regulation.
“Online, Quebec music struggles to reach its audience. According to the Observatoire de la culture et des communications du Québec, our market share is only 8% on online music services, while it is 50% for record sales.”
Payette views the Internet-driven changes in the music industry as an existential threat to French language culture. Quebec’s cultural sovereignty is at stake and Google, he said, is playing dirty pool on C-11, funding domestic critics like Digital First Canada and Open Media, and fear-mongering about C-11’s impact on consumer choice.
Here’s how the dispute relates to the Bill itself:
The major music streaming platforms appearing before the Senate —-YouTube, Spotify, and TikTok —-all agree to write big cheques to fund the development of Canadian music talent based on the commercial value of their own curated music services of “full length songs.” They hasten to point out they already contribute to some of this development on a voluntary basis.
YouTube and TikTok represent a special sub-set of funding obligations because Bill C-11’s article 4.2 —-the controversial provision stating that user-generated content (e.g. user-curated playlists and videos) can be commercially regulated in certain circumstances—- means YouTube and TikTok will also be tithed on the commercial value of that business.
It also means that user generated content will be governed by whatever CanCon marketing outcomes (“discoverability”) are required by the CRTC under section 9 of Bill C-11, and it’s not ruled out by the Bill that the CRTC may order platforms to figure out a suitable tweak to their algorithms.
Those same CRTC-mandated discoverability outcomes will apply to the platforms’ own curated music services.
The music services all agree on this second point: they are adamantly opposed to discoverability that might impact their algorithms.
What they haven’t done is say what discoverability they are for.
That was why it was disappointing that, despite the best efforts of several Senators to pin down YouTube’s Patell or TikTok spokesperson Steve de Eyre on this point, none of the Senators asked what they thought of the compromise floated by PIAC spokesperson John Lawford last week: increasing the discoverability of Canadian artists through the use of banner ads and hyperlinks.
I promised illumination however.
The first interesting point was the deference shown by Music Canada’s Patrick Rogers to YouTube and TikTok. Music Canada is the alliance of major music labels, foreign owned but in the business of developing Canadian artists. Rogers told Senators he accepted “at face value” claims by Patell and de Eyre that tampering with their algorithms will backfire and harm Canadian artists.
An even more interesting intervention came from the English Canadian musicians’ association CIMA, represented by former punk rock artist and ex-MP Andrew Cash.
While choosing his words carefully, Cash came down squarely on TikTok and YouTube’s side of the argument. The “demand-side” regulation of distribution won’t work in an Internet environment, he said.
In the past radio CanCon regulations helped to build a strong domestic music industry, he said, but radio no longer drives exposure and commercial success. The way to help Canadian artists now is to contribute financially to their development, a “supply side” strategy endorsed by TikTok’s de Eyre.
As for his French language counterparts, Cash recommended they get their day in the CRTC’s court to make their case for stronger discoverability tools under C-11. To tack on the obvious addendum to that recommendation, that CRTC hearing is also the place and time where YouTube and TikTok get to argue that user generated content and algorithms are best left alone.
By the end of the Senate hearing, it became reasonable to conclude that the crux of the discoverability problem is how Bill C-11 and the CRTC can meet the cultural goals of the French language music industry.
But as I observed at the outset, Google isn’t having it.
They insist that all user generated content or algorithms be permanently walled off from any future regulation by exclusion from the Act and French language music does not get its day in court.
And I am going to predict that Liberal, Bloc and NDP MPs are not having that.
Brad Danks is the CEO of one of Canada’s niche broadcasters OutTV and he never claimed to be Wayne Gretzky.
But when talking to Senators about Bill C-11 today, he was not thinking about linear TV and where the puck has been. He was thinking about where the puck is going to be in a future where linear TV has been fully eclipsed by online distribution.
Apart from Bell, Rogers, and perhaps Videotron, the future of Canadian broadcasters is not their own destination streaming apps competing against global broadcasters Netflix or Disney Plus.
Their future is securing distribution deals from online channel aggregators Roku, AppleTV, or any number of foreign platforms around the world. Or perhaps free advertising-supported TV (FAST) like Pluto TV. That’s not just an export strategy aimed at expanding audiences, it’s a domestic strategy for reaching Canadian cord-nevers and cord-cutters.
That’s why Danks, joined by Monika Ille of the Aboriginal Peoples Television Network (APTN), implored Senators to pass C-11 amendments that would empower the CRTC to order both domestic and foreign online distributors to accept Canadian channels that the CRTC routinely orders Canadian cable companies to carry under the current legislation.
In addition, these amendments would backstop commercial negotiations between Canadian channels and online distributors if platforms are tempted to be unreasonable about revenue splits that are more or less standard in the industry. The backstopping is the Commission’s power to fix reasonable terms.
It’s not clear why the drafters of C-11 didn’t just map over the CRTC’s full authority on these matters from linear broadcasting to the world of online distribution.
Minister Pablo Rodriguez made a cryptic comment to the Commons Heritage Committee that there might be international trade repercussions to giving the Commission such powers over foreign distributors operating in Canada. But we have heard nothing since.
It’s possible that the pressure point is how foreign distributors will react to the CRTC ordering them to carry the so-called “section 9(1)(h)” channels APTN, the Weather Channel, the French-language news consortium TV5, AMI-TV for disabled viewers, CPAC, the multi-ethnic channel OMNI, etc.
These channels have the CRTC to thank for their mandatory inclusion in the basic cable package, but also for funding that the Commission orders the Canadian cable companies to pay to these broadcasters based on so many cents per month for each cable customer (for APTN it is set at 35 cents, for AMI-TV at 20 cents, etc.).
As APTN’s Ille told Senators, it has taken 20 years to build up an indigenous broadcasting presence on Canadian cable TV thanks to its “section 9(1)(h)” status.
Are we going to leave its survival in the hands of American distribution companies?
The media event of the week was the combustible encounter between Opposition Leader Pierre Poilievre and Global News reporter David Akin at a Parliament Hill press conference, followed by Poilievre fundraising off the incident and doxing Akin.
There’s no need to put in my two cents, Karen Pugliese’s account of what occurred and what it means for Canadian media and politics covers it.
One of Poilievre’s least favourite Liberal bills is C-11, the Online Streaming Act.
The controversial “Netflix Bill” broke through the Tory filibuster in June and has now moved on to the Senate Transportation and Communications Committee. As the Orcs of Middle Earth would say, “meat’s back on the menu.”
Except that Senators are taking a different approach than their House colleagues: less partisanship and a real curiosity about the policy issues. The Senators spent two days studying the Bill in June and two more this week, I posted an update that attempts to get at what is feeding the heated “discoverability” debate.
You can get more detailed reports from Cartt.ca here ,here and here.
Also, Marie Woolf of the Globe and Mail writes this morning about the role of “intellectual property” (ownership of exploitation rights) in making Canadian content film and TV. American streamers Disney and Netflix are currently barred from retaining these commercial rights for certified CanCon, so their movies don’t qualify. You will hear a lot more about this issue in the weeks and months to come.
There’s a recently published reflection on Canadian journalism provocatively entitled “Objectivity: What Journalists Hate but the Public Still Craves.”
Former Calgary Herald Editor Peter Menzies is looking at audience data from the American Press Institute suggesting readers are disappointed in how much opinion they believe they are getting in news stories instead of facts and analysis.
Menzies delivers quite a scolding to his fellow journalists. While some of his comments might be considered polemic, the data that he’s looking at is thought provoking.
I’ve been following the American version of our Bill C-18, the Online News Act. Democratic Senator Amy Klubachar’sJournalism Competition and Protection Act(JCPA) ran into a major snag in “mark-up” debate at the Senate Judiciary Committee, despite having bipartisan support lined up.
Senator Ted Cruz (R-Tex) tossed in an amendment on platform content moderation that Democrats wouldn’t accept and it was approved in the absence of a Democrat sick with Covid. Klobuchar had to withdraw the Bill and will resubmit it.
The California program will fund 40 local newsroom interns in three consecutive annual cohorts, each internship lasting three years. The program will be administered by Berkeley’s School of Journalism.
Minister Pablo Rodriguez has tabled his response to the May report of the Commons Heritage Committee on the Rogers-Shaw merger.
Another CRTC file I am following is the complaint filed by One Soccer (on the CRTC website under its corporate name Timeless Inc.) against Rogers for refusing to put the independent soccer channel into its cable package, even on a pick-and-pay basis.
Rogers has now filed its response, as has Telus as an intervenor. Telus is the only Canadian cable provider that carries One Soccer, which holds programming rights for the Canadian Premier League and several game broadcasts of our national teams.
Based on the filings, One Soccer is a long shot to win cable access under the long standing CRTC rules. Whether those rules are still “in the public interest” may be something to comment upon after we get the Commission’s ruling.
Bill C-11 is back under the microscope this Fall for several days of hearings in the Senate Transportation and Communications committee, with Senators picking up where they left off in June.
Where the debate on the Bill in the Commons Heritage Committee was rife with political theatre and a Conservative filibuster of half its 20 days of hearings, the Senators are exhibiting less partisanship and more curiosity about the policy issues.
Having said that, the discussion is very much a recycling of the Commons debate with mostly the same witnesses from government, industry and advocacy groups.
Supporting the Bill, spokespersons for the large Canadian media companies just want to “get on with it” even if the Bill “isn’t perfect” or doesn’t provide a policy solution for every issue. Smaller stakeholders are asking the Senate to pass amendments the Heritage Committee overlooked, to fix the imperfections which loom large in their futures.
Opposing the Bill, critics still hotly dispute any regulation of broadcasting over the Internet.
Most of that is aimed at the Bill’s business regulation of video and audio content uploaded to YouTube.
The Internet Society’s Tim Denton characterized the Bill’s “discoverability” proposal requiring YouTube to give Canadian content a boost in its recommendation algorithm as feeding Canadians broccoli when they are looking for steak. (To the extent that the best metaphor wins the debate, I would suggest discoverability is more like adding Albertan steak to the recommendations generated by a search enquiry for “steak”).
The critics are driven by the worst-case scenario: an oppressive CRTC that dreams up perverse regulations for what posts get algorithmic priority on hosting platforms like YouTube. As Open Media’s Matt Hatfield summarized, it’s not that C-11 is a Censorship Bill but it provides future governments with censorship tools.
The proponents of the Bill are also driven by their worst fears: that unregulated Internet broadcasting dominated by foreign companies is slowly displacing the regulated legacy system that enables Canadian media companies and Canadian content to succeed. The difference is that their fears reflect ten years of cord-cutting, cord-shaving, and cord-nevering.
Daring to get in between the two sides on the thorny issue of “discoverability” is John Lawford of the Public Interest Advocacy Centre (PIAC).
Lawford suggested to Senators they amend the Bill to restrict regulation of YouTube recommendations to banner ads and links, “static” as opposed to “dynamic” discoverability.
That compromise may satisfy neither the critics’ principled objection to regulating the Internet nor those in the music industry, especially from Québec, who want Canadian radio airplay quotas replicated as far as possible on music streaming platforms.
The reason this is relevant to regulating user-generated uploads is that music streaming giants Spotify and Apple, and conventional radio too, will compete in the same regulatory basket against YouTube which in addition to its own streaming service offers free playlists uploaded by thousands of YouTubers.
There are all sorts of sensible regulatory outcomes that the CRTC could, and probably will, come up with once the Bill passes. But critics are not in the mood to put their trust in the Commission.
With two more days of hearings this week under its belt, the Senate Committee will continue next week on September 20-21.
Last week I posted about something missing in online commentary about Bill C-11 and that is more discussion about what is meant by “telling Canadian stories” as a good reason for passing the Bill.
And then for something completely different…I also posted about a telecom issue. I don’t offer much expertise in this area, but I note that media and telecom policy have some important things in common: the large “vertically integrated (VI)” media companies that dominate the market, the CRTC as their much-maligned regulator, and the same critics and consumer advocates.
If the VIs dominate markets, the critics dominate the public messaging, making their voices heard by politicians, journalists, the Competition Bureau, and the public at large. That messaging, reduced to its essence, is that big is always bad and the CRTC is always wrong. The VIs’ counter-messaging doesn’t get a lot of air play: maybe the 900 pound gorilla doesn’t feel the need to explain itself (except when screwing up over network outages and firing TV anchors).
With all of that in mind, I dug a little deeper into a high-profile telecom file, the CRTC’s setting of wholesale broadband prices paid by “service-based” ISP providers (e.g. TekSavvy) to piggy back onto the VIs’ fibre networks.
While we are still on the subject of telecom policy, I updated you last week on Bell’s purchase of Canada’s second-largest re-seller, the Ontario-based Distributel. That follows BCE snapping up a similar company in Quebec, EBOX, only last February.
LaPresse has published a timely survey which says that EBOX’s prices have gone down considerably since Bell bought them.
The impact that Bell’s moves may have on competition has surely attracted the attention of the Competition Bureau and the state of telecom regulation seems to be in flux more than the usual. The Globe and Mail’s Andrew Willis provides a recent overview of what is happening in the industry.
If someone hasn’t already coined the phrase “never send a blogger to do the job of a journalist,” then I claim dibs. I have provided occasional updates on the winding road followed by the federal Liberals in putting forward an Online Harms Bill, promised in their last election platform.
The Senate Judiciary Committee began its first hearings on the Bill this past Thursday. Authored by Democratic Senator Amy Klobuchar, S-673 is co-sponsored by five other Democrats and seven Republicans, including Lindsey Graham (R-SC) and Rand Paul (R-Ky).
Has it really been more than two years since Christie Blatchford left us? A great journalist and a wonderful soul. There is a scholarship fund at OCAD being launched in her memory, you may wish to check it out.
For much of Bill C-11’s journey through Parliament, public comment and press coverage have been dominated by its critics which, in any democracy, is what you want.
I’ve posted previously that much of that criticism is factually inaccurate, leveraged by worst-case scenarios, and at times post-truth.
But what are the good reasons for the Online Streaming Act in the first place?
Heritage Minister Pablo Rodriguez’s messaging has been that C-11, like the Broadcasting Act it will amend, is about “a level playing field” for media companies and “telling Canadian stories.”
I agree with both, especially the latter. But it seems that outside Parliamentary committee rooms nobody is elaborating on why “telling Canadian stories” is a good thing.
I am tempted to say that such elaboration on Canadian content invites a discussion of “cultural nationalism” but allow me to disavow that term even though I call myself cultural nationalist as a kind of obligatory warning label.
A truly satisfying description of “national Canadian culture” is elusive (at least in English Canada) and not especially helpful, if only because Canada doesn’t produce and consume culture, Canadians do, in a rainbow of imaginative visions.
When asked why we value Canadian stories, and what makes them Canadian, our minds turn easily to the enduring riddle of the “Canadian identity” in hopes the answer to our question lies there.
During the 1990s we experienced a burst of English Canadian introspection about “the Canadian identity” in response to watershed changes in trade with the United States, globalization of the economy, changing ethnic demographics across the country, and the near separation of Québec in a cliffhanger referendum.
In the collection of essays Belonging (1993) about the meaning of Canadian citizenship, William Kaplan described something familiar to most Canadians: an unresolved tension between on one hand a post-national Canada populated by multiple nations and self-aware communities and, on the other, a lasting desire to live together in a sovereign community, what’s been described as “a focus of political allegiance and emotional energy on a scale capable of satisfying deep human longings for solidarity, symbolic identification, and community.”
The place that Kaplan lands is the concept of citizenship (and identity?) based on the right to participate in a democracy where we can create good things together that “transcend race, religion, language, ethnicity and region.”
Writing around the same time, Toronto Star columnist Richard Gwyn tried to describe a Canadian identity rooted in something earthier, a political creed he called civic Canadianism.
Publishing Nationalism Without Walls (1995) only months before a second sovereignty referendum in Québec would be narrowly defeated, Gwyn was pessimistic about Canada’s future. He dreaded the growing income inequality he saw resulting from trade deals, but also condemned official multiculturalism, immigration policy and “identity politics” as solvents that would unglue the cohesion of Canadians.
As for public support for “Canadian culture,” Gwyn cited polling by Ekos (see page 89 of its report) that demonstrated a high level of public support for “Canadian culture” without identifying what it was.
English Canadians overwhelmingly agreed “Canadian culture” was “something we can all take pride in” and also stated a high “sense of belonging” to Canada.
By the end of his book, Gwyn identified certain civic values as the sovereignty pact we make with our fellow Canadians: a deeper commitment to “egalitarian” and “collectivist” values than you might find in the United States.
But the trouble with grafting this concept of “identity” onto “culture” is —especially if you are searching for distinctive cultural characteristics based on a common Canadian experience— egalitarian and collectivist values may be majoritarian, but hardly a consensus as we are reminded every day in 2022.
If Canadian culture is regulated and provided with subsidies in servitude to the state, national unity, or a contentious set of civic values, then public support for CanCon will be just as contentious.
Perhaps this is the connection to why many right-wing libertarians are harshly critical of Bill C-11 if the justification offered for subsidizing CanCon is a semi-official “cultural identity” rooted in egalitarian priorities they don’t rank nearly as high as liberty and free markets.
That may be why C-11 critic J.J.McCullough pigeon-holes “Canadian nationalism” as loyalty to “left-wing” federal policies rather than anything recognizably cultural. He believes culture is a commodity best left to the unregulated creative marketplace, something he acknowledges is dominated in the English-speaking world by American media conglomerates.
For similar reasons, the idea of CanCon-as-political-agenda may be why other critics of C-11 gripe that the legislation is driven by Québec MPs (where culture has different historical and linguistic roots with no real affinity for American-dominated media).
The libertarians’ equating of Canadian cultural regulation with political goals or agendas is devilishly clever for it eats away at public support for the Broadcasting Act (polling results notwithstanding).
But it’s a mistake for either supporters or opponents of C-11 to conflate political values with cultural regulation, even though Canadian politics and culture share similar moral values.
While some recognizably Canadian culture is expressly political —consider any number of Canadian historical dramas, documentaries, or hockey summits — most of it isn’t.
But what elseit is often seems elusive.
The late Northrup Frye had something to contribute on this point.
Frye (1912-1991) is Canada’s most famous literary critic and an original mind if ever there was one.
Writing in the 1960s when the Québec Independence movement was on the march, Frye became intrigued with what English-language CanLit had to tell us about our inner imaginative lives. (It seems that deep thoughts about being English Canadian are stirred during crises of national unity).
In The Bush Garden: Essays on the Canadian Imagination, Frye offered a series of insights and pregnant ideas rather than a tidy answer to the question “what is the Canadian identity” or imagination. The first and last of eleven essays are the most directly applicable to the debate about CanCon.
Writing about CanLit as just one medium of cultural expression, Frye was not concerned about whether Canada boasted a renowned literature that held its own against the great classics in western literature, much in the way CanCon is often measured against the best that the UK, France or the US has to offer in popular culture.
Frye saw literature as one door into describing the Canadian imagination: “It is obvious that Canadian literature, whatever its merits, is an indispensable aid to the knowledge of Canada. It records what the Canadian imagination has reacted to, and it tells us things about this environment that nothing else will tell us.”
Frye made a series of observations about Canadian literature (and here we should consider if they also apply to other Canadian imaginative traditions like television) that most Canadians would recognize as true.
Canada did not have much of a youth as a post-Contact nation and, in the history of the European world, arrived rather late. Western mythical traditions in literature were so well established, said Frye, it’s no accident that instead Canadian literature often revolves around grand narratives in our history.
On that point he identified a distinctive feature of CanLit as “the romantic, exploratory and idealistic” that is “emotionally linked with Confederation and Canadianism.”
But he also spotted an “alternating rhythm” in CanLit, the pastoral myth of an idyllic childhood, usually located on the Canadian frontier. He described the act of imagination as “reflective, observant and pastoral” and likely associated with regional and local expressions of culture. That may be why one of his most memorable comments about the Canadian imagination was “don’t ask who are we. Rather ask where is here?”
Frye compared these complimentary literary traditions to a similar polarity between great tales of nationalism versus imaginative expression rooted in regional or local communities.
What he said is worth quoting at length, because it’s insightful:
“The question of identity is primarily a cultural and imaginative question, and there is always something vegetable about the imagination, something sharply limited in range. American writers are, as writers, not American: they are New Englanders, Mississippians, Middle Westerners, expatriates, and the like. Even in the much smaller British Isles we find few writers who are simply British: Hardy belongs to “Wessex,” Dylan Thomas to South Wales, Beckett to the Dublin-Paris axis, and so on…
“Similarly, the question of Canadian identity, so far as it affects the creative imagination, is not a “Canadian” question at all, but a regional question. An environment turned outward to the sea, like so much of Newfoundland, and one turned towards inland seas, like so much of the Maritimes, are an imaginative contrast: anyone who has been conditioned by one in his earliest years can hardly become conditioned by the other in the same way. Anyone brought up on the urban plain of southern Ontario or the gentle pays farmland along the south shore of the St. Lawrence may become fascinated by the great sprawling wilderness of Northern Ontario or Ungava, may move there and live with its people and become accepted as one of them, but if he paints or writes about it he will paint or write as an imaginative foreigner….
“Thus when the CBC is instructed by Parliament to do what it can to promote Canadian unity and identity, it is not always realized that unity and identity are quite different things to be promoting, and that in Canada they are perhaps more different than they are anywhere else. Identity is local and regional, rooted in the imagination and in works of culture; unity is national in reference, international in perspective, and rooted in a political feeling.”
Frye mistrusted nationalism in culture —he was opposed to Separation— but nevertheless saw national, regional and local expression as all of one Canadian cultural piece:
“The essential element in the national sense of unity is the east-west feeling, developed historically along the St. Lawrence-Great Lakes axis, and expressed in the national motto, a mari usque ad mare. The tension between this political sense of unity and the imaginative sense of locality is the essence of whatever the word “Canadian” means. Once the tension is given up, and the two elements of unity and identity are confused or assimilated to each other, we get the two endemic diseases of Canadian life. Assimilating identity to unity produces the empty gestures of cultural nationalism; assimilating unity to identity produces the kind of provincial isolation which is now called separatism.”
Aside from offering his opinion on what features of CanLit seem authentically Canadian, Frye also had something to say about the impact of our neighbours to the south.
The Canadian compulsion to define our own cultural traditions as distinct within North America, he suggested, is not anti-Americanism but an imaginative reflex to the domineering globalization of modern life:
“The writers of the last decade, at least, have begun to write in a world which is post-Canadian, as it is post-American, post-British, and post everything except the world itself. There are no provinces in the empire of aeroplane and television, and no physical separation from the centres of culture, such as they are. Sensibility is no longer dependent on a specific environment or even on sense experience itself. A remark of one critic about Robert Finch illustrates a tendency which is affecting literature as well as painting: “the interplay of sense impressions is so complicated, and so exhilarating, that the reader receives no sense impression at all.”
“Marshall McLuhan speaks of the world as reduced to a single gigantic primitive village, where everything has the same kind of immediacy. He speaks of the fears that so many intellectuals have of such a world, and remarks amiably: “Terror is the normal state of any oral society, for in it everything affects everything all the time.”
“The Canadian spirit, to personify it as a single being dwelling in the country from the early voyages to the present, might well, reading this sentence, feel that this was where he came in. In other words, new conditions give the old ones a new importance, as what vanishes in one form reappears in another. The moment that the peaceable kingdom has been completely obliterated by its rival is the moment when it comes into the foreground again, as the eternal frontier, the first thing that the writer’s imagination must deal with.”
There is one last pithy thing Frye said that I find myself hanging on to:
“One theme which runs all through this book is the obvious and unquenchable desire of the Canadian cultural public to identify itself through its literature.”
It’s an interesting choice of words, “an unquenchable” desire. The thirst metaphor is compelling. Perhaps what we call Canadian culture, the telling of stories, is less a museum of artifacts than a compulsive introspection into our identity as Canadians.
While I suspect most libertarians are less compulsive about the Canadian imagination than I am, nevertheless the argument they make is that thanks to the miracle of the Internet we don’t need cultural subsidies to tell Canadian stories and should just leave CanCon to make its way in the free market.
Andrew Coyne likes to make the market argument and did so in a recent column:
“In the world of 1950, when there was no internet, no satellite or cable TV, and no means for viewers to pay for content directly, there was a clear case for government intervention. With spectrum in short supply, competition was limited. And when the business model of private broadcasters depended on delivering the largest possible audience to advertisers, much of what they broadcast tended to be the same – usually imported American fare. Some mixture of subsidy and regulation could be defended, precisely to recreate the diversity of offerings a well-functioning market provides.
“But none of those conditions now apply. There is no theoretical limit to the number of services streaming on the internet, nor much in the way of barriers of cost or distance. Consumers can pay directly for content, so providers need not always aim for the broad middle, but can serve niche markets as well. Regulation is unnecessary at best, if not actively harmful; so is subsidy. In particular, there is nothing to prevent Canadians from paying for Canadian content if they choose – and no reason to force them to if they don’t.”
That last sentence echoes McCullough: the sole calculus of culture is the number of paying customers. Point finale.
It is true that “niche content” —Coyne’s category for CanCon— can now find bigger audiences through Internet distribution. For example independent Canadian TV programmers and YouTubers use the Internet platform to expand their discoverability by domestic audiences and, depending upon the niche, draw even larger foreign audiences.
On the other hand, the same technological miracle has robbed Canadian media of much of its advertising revenue.
The Internet hasn’t changed the fundamental challenge to supply enough high-cost national, regional and local content to compete against American content for Canadian eyeballs.
The challenge is scale, scale, and scale, in that order.