Day 3 of Heritage MP hearings on C-11 brings renewed threat of Tory filibuster

June 1, 2022

Witness testimony and Parliamentary debate at the Heritage Committee (CHPC) hearings on C-11 continued May 31st with competing narratives from the Conservatives and the other parties.

The Tories maintain a laser focus on whether C-11 will “regulate” user generated content and the digital creators who create and upload to hosting platforms like YouTube, Facebook and TikTok.

On the flip side of the debate, the Liberals, Bloc and NDP want to talk about the core objective of C-11 to integrate foreign online players into a broadcasting system where domestic and foreign media companies finance, create and distribute Canadian content.

Most of the testimony and debating points revisited issues raised in previous sessions:

Discoverability and algorithms: This issue creates most of the political theatre at these hearings. MPs and witnesses opposed to C-11 want a hands-off approach to any government influence on the hosting platforms’ proprietary algorithms.

Section 9(1)(e) of C-11 empowers the CRTC to make orders regarding a variety of matters including:

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 French language original programs;

but also:

Restriction — computer algorithm or source code

9(8) The Commission shall not make an order under paragraph (1)‍(e) that would require the use of a specific computer algorithm or source code.

As FRPC’s Monica Auer points out on Twitter, C-11 gives the CRTC some regulatory authority over algorithms in the name of discoverability of Canadian content, but stops short of authorizing the CRTC to order a particular modification.

McMaster University academic Sara Bannerman told MPs there are plenty of good policy reasons reflecting the statute’s cultural objectives for the CRTC to review the outcomes of YouTube’s algorithm-driven choices of which content to recommend.

But when CRTC Chair Ian Scott took the stand he downplayed the CRTC’s interest in managing algorithms. While Scott will no longer be Chair of the Commission when the discoverability regulations are designed by the CRTC, he foresaw a regulatory approach which assumed that algorithms might only need a tweaking or small improvement based on regulatory “incentives” rather than “proscriptions.” He appeared to describe his assessment of YouTube compliance as how well their keyword search for “Canadian content” works (note: try, it’s pathetic).

CanCon certification and copyright: Witnesses appearing on behalf of Netflix and the Hollywood studios (Motion Picture Association of Canada) sent MPs the same message as Disney had on the prior day of hearings. The studios want to revisit the central pillar of CanCon certification requiring a Canadian to be the sole producer and owner of copyright.

IATSE’s John Lewis—- the Canadian VP of the US-based film production workers’ union— gave that an amen, adding that the governing “points system” formula for CanCon certification should be expanded to include a “Canadian-ness” assessment of film content as well as a broader recognition of the work performed by Canadian IATSE members.

Today we will likely hear a different view of copyright from the Canadian Media Producers Association, representing independent Canadian film makers.

Part II Fees: Day Three was the first time this issue has arisen. The 1991 Act requires Canadian media companies to pay $120 million annually to the federal treasury in Broadcasting Act “Part II” fees.

The historical origin of Part II fees seems obscure but in modern day terms they appear to operate like a surcharge on broadcasters’ corporate tax obligations (broadcasters pay the CRTC’s cost of regulating them through Part I license fees). Broadcasters say the Part II fees don’t make sense in a squeezed revenue environment.

Québecor CEO P.K. Pélédeau told MPs that Part II fees are just another example of “onerous regulation” of Canadian media companies and queried how the Minister’s stated goal of a level playing field between domestic and foreign companies could be achieved while exempting foreign companies from these fees.

Canadian Association of Broadcasters President Kevin Desjardins made the same point, although his claim that if Part II fees were abolished Canadian broadcasters would reinvest the $120M might have planted a few tongues in cheek around the Committee table.

Ordinarily you wouldn’t give the broadcasters much chance of an amendment to eliminate these fees, but the Conservatives campaigned on it in the last election so a horse-trade on competing amendments is not out of the question.

The Happiest Warrior Title Changes Hands Again: Heritage hearings on C-11 are all about political theatre.

I posted on May 30th that Liberal Chris Bittle had wrestled away bragging rights as the Happiest Warrior MP from Conservative Rachael Thomas with his ruthless cross examination of CPC witness Scott Benzie from Digital First Canada. Thomas lead last year’s Conservative party filibuster of C-10 and has achieved some notoriety with her sandpaper style.

But the pendulum may have swung back to Thomas: on May 31st as she interrupted the order of witnesses with a motion that seemed designed to relaunch the filibuster.

On its face her motion is designed to keep the focus of public debate on user generated content and to exploit messaging gaps between what CRTC Chair Ian Scott had to say —that C-11 includes the general power to regulate hosting platforms, but not the content or the creators themselves— and Heritage Minister Pablo Rodriguez’s public comments suggesting the government doesn’t want to regulate YouTube creators.

Again, a nuanced discussion of “regulation” is what is missing in this tempest, I have posted about this previously.

As of last night it was unclear when Thomas’ motion will be debated.

*****

Here’s the witness line-up for Day Four, today at 3:30 pm on ParlVu:

As an individual

• J.J. McCullough

Association québécoise de la production médiatique

• Hélène Messier, President and Chief Executive Officer

BCE Inc.

• Jonathan Daniels, Vice-President, Regulatory Law

• Karine Moses, Vice-Chair Québec and Senior Vice-President, Content Development & News

Black Screen Office

• Joan Jenkinson, Executive Director

Canadian Media Producers Association

• Reynolds Mastin, President and Chief Executive Officer

• Catherine Winder, Chief Executive Officer, Wind Sun Sky Entertainment Inc.

FRIENDS

• Marla Boltman, Executive Director

Public Interest Advocacy Centre

• John Lawford, Executive Director and General Counsel