C-11 Amendments: will they find favour with Heritage MPs?

June 6, 2022

As a public service to our community of Bill C-11 watchers, I have collected proposed amendments from as many sources as I could. The following is a curated short list.

These organizations or individuals posted their amendments online or were kind enough to send them to me:

• ACTRA
• Professor Sara Bannerman
• BCE (Bell)
• Coalition for Diversity of Cultural Expressions (CDCE)
• Canadian Media Producers Association (CMPA)
• Canadian Association of Broadcasters (CAB)
• Forum for Research and Policy in Communications
• Independent Broadcasters Group (IBG)
• Public Interest Advocacy Centre (PIAC)
• Unifor
• YouTube
• I also include proposed amendments from Len St. Aubin published in an article in Cartt.ca
• Amendments from former CRTC Chair Konrad Von Finkenstein

All of the political parties except the Conservatives committed to submitting their C-11 amendments to the Clerk of the Heritage Committee on June 3rd, so not all of these amendments will necessarily go forward (unless adopted by the Conservatives who are not submitting amendments at this time).

1. Broadcasting Economics:

• BCE: Authorize the CRTC to devise regulations incentivizing the sharing of content distribution between foreign and Canadian broadcast undertakings.

3(1)(s.1) foreign broadcasting undertakings should

(i) make their programming available to Canadian programming undertakings pursuant to contractual arrangements on reasonable terms; and

(ii) be encouraged to partner with Canadian undertakings in the distribution of their programming throughout the Canadian broadcasting system

5 (2) The Canadian broadcasting system should be regulated and supervised in a flexible manner that

(i.1) Ensures foreign broadcasting undertakings make their content available on reasonable terms to Canadian broadcasting undertakings; and

(i.2) Foreign broadcasting undertakings are incented to partner with Canadian broadcasting undertakings in the distribution of foreign programming in Canada.

• Leonard St. Aubin: An amendment following after paragraph 5(2)(h) to ensure that CRTC regulation.

(i) recognizes that market forces, competition, and the increased choice of programming made available over the internet, contribute to achieving the broadcasting policy objectives in subsection 3 of this Act, and therefore ensures that regulation is demonstrably required, efficient and proportionate to its purpose.

• Canadian Association of Broadcasters: Abolish Part II Broadcaster Fees, not just for Online Undertakings.

11(3.1) The only fees that may be established with respect to a broadcasting undertaking [delete: that may be carried on without a licence] shall be fees that relate to the recovery of the costs of the Commission’s activities under this Act.

• Friends/CMPA: As recommended by the Broadcasting and Telecommunications Review Report, restore the CRTC’s pre-2016 Terms of Trade policy regulating commercial relationships between Independent Producers and Broadcasters.

9 (1) Subject to this Part, the Commission may, in furtherance of its objects,

(i) require any broadcasting undertaking entering into commercial arrangements with independent Canadian producers or independent Canadian broadcasting undertakings to enter into and adhere to collective terms of trade…

2. Scope of regulation over online undertakings (Streaming Services and Hosting Platforms):

• St. Aubin (and others: Peter Menzies and Konrad Von Finkenstein):  Consistent with the government’s repeated mantra, amend Bill C-11 so that it applies only to online streaming services with a significant presence in the Canadian market — more than $150 million in Canadian revenues.

• Von Finkenstein: A variant on the proposal above, limiting the regulation of online streaming services based on the number of Canadian subscribers.

10 (2) The Commission may exercise its powers requiring registration of online undertakings under s.10(1) and its powers to impose conditions under s.9.1 only in respect of online undertakings that

a) in the Commission’s demonstrable opinion compete with licenced broadcasters

b) charge a subscription fee or offer their programs for free but with embedded advertising, and

c) have in excess of 400,000 subscribers.

• St. Aubin:  Unequivocally exclude user-generated content, and restrict CRTC regulation of social media (hosting platforms) to imposing a reasonable financial contribution to support CanCon, and gathering information and data necessary for that purpose.

• YouTube: Restrict section 4.2 (the CRTC’s authority to regulate user generated programming) to full-length commercial music.

• FRPC: Eliminate all regulation of user-generated programming unless it is uploaded by a broadcaster:

2) Despite subsection (1), this Act applies in respect of a program that is uploaded as described in that subsection if the program is uploaded to the social media service by a broadcaster.

3. Access of Canadian Programming Services to Foreign Online Distribution Platforms.

• IBG/Friends: Eliminate the exemption of online undertakings from a variety of statutory provisions dealing with programming services’ access to and mandatory carriage on online distribution platforms (the online equivalent of cable and satellite), wholesale code rules regulating commercial negotiations between programming services and broadcasting distributors, and the availability of dispute resolution through binding arbitration.

From the IBG backgrounder:

Currently, the Commission has the authority to regulate the “carriage of any foreign or other programming services by distribution undertakings”. But, this authority is limited to established “distribution undertakings” – i.e. cable and satellite not online distributors to cover activities such as ensuring local television services are distributed locally; providing access to distribution platforms for multicultural Canadian programming services; providing access to distribution platforms for independent programming services; ensuring fair treatment of services and subscribers during disputes (e.g. the “standstill rule”); and providing for consumer protections… 

The dispute resolution tool is essential to resolving gatekeeping issues in the broadcasting distribution environment – whether it is a programming service seeking to access a key platform on fair terms; or a distributor seeking access to key programming content. These issues are endemic in any network environment including the Internet. The CRTC should have the same authority to resolve disputes in an online environment as it does currently for distribution undertakings. 

1.                     Changes to proposed section 9.1 regarding the distribution of specified services:

9.1(1)(h)          a requirement for a person carrying on a distribution undertaking or an online undertaking that provides the programming services of other broadcasting undertakings to carry, on the terms and conditions that the Commission considers appropriate, programming services specified by the Commission;

                        Purpose:  To enable the CRTC to ensure that specified Canadian apps and services are offered on online platforms. With this change, new section 9.1(1)(i), 9.1(9) and 9.1(10) could be removed or modified.

                        As an alternative, the existing provisions could be retained, and the Commission provided with explicit authority to set terms for online distribution where good faith negotiations have failed (as follows)

9.1(10)            The Commission may facilitate those negotiations at the request of either party to the negotiations and, notwithstanding paragraph (1)(i), if no agreement is reached determine terms and conditions for carriage that the Commission considers appropriate.

2.                     Changes to proposed section 9.1 regarding the general oversight of online distributors:

9.1(1)(l.1)        the carriage of any foreign or other programming services;

                        Purpose: To enable the CRTC to establish carriage conditions that apply to types of programming services in an online distribution environment (e.g. local services, multicultural services, independently owned services, minority language services) and to provide for other general regulatory oversight of online distribution.

3.                     Changes to the CRTC’s existing dispute resolution authority to reflect online distributors:

10(1)(h)           for resolving, by way of mediation or otherwise, any disputes arising between programming undertakings and distribution undertakings broadcasting undertakings concerning the carriage of programming services originated by the programming undertaking; 

                        Purpose: To ensure that the CRTC has authority to intervene in disputes regarding the carriage of programming services in an online environment.

4. Discoverability of User-Generated Content.

• YouTube: Amend article 9.1 to exclude regulation of recommendation algorithms.

• PIAC: Amend section 3(1)(r) authorizing the CRTC to require discoverability of Canadian content by online undertakings to exclude “dynamic discoverability,” i.e. recommendations. Just provide a banner space or portal designated as Canadian content:

s. 3(1)(r), which states: “online undertakings shall clearly promote and recommend Canadian programming, in both official languages as well as in Indigenous languages, [delete following text] and ensure that any means of control of the programming generates results allowing its discovery.” 

• Bannerman: We need provisions expressly authorizing CRTC to demand platforms collect (not just provide) data, so they can’t deflect requests for relevant data on discoverability:

9 (1) (n) the collection and provision to the Commission […] 

9 (1) (o) the collection and provision to the Commission […] 

9 (1) (o) (v) information related to discoverability; and [NEW] 

• ACTRA: C-11 introduces a restriction on the ability of the CRTC to regulate discoverability in subsection 9.1(8). Restricting the ability of the CRTC to require the use of a specific algorithm or source code raises the spectre of opposition by online undertakings to reasonable measures proposed by the CRTC on the grounds that the outcome sought by the CRTC can only be accomplished by way of a specific algorithm or source code change. This could defeat the fundamental objective of the section. Given the CRTC would have no access to a platform’s source code, it would be in no position to contest such an argument. To avoid such a scenario, ACTRA would prefer to see this limitation removed.  In the alternative, ACTRA suggests amending the language of subsection 9.1(8) to stipulate that CRTC orders must be outcomes-based, rather than algorithm-based. 

5. Canadian Ownership and Control.

• ACTRA/Friends/CDCE/IBG/FRPC: Tighten up Canadian ownership language which is still loose because it exempts foreign broadcasting undertakings from Canadian ownership without the previous requirement that our broadcasting system, overall, is predominantly Canadian. This could be loose enough for a major expansion of American broadcasting in Canada, possibly by purchasing one of our major networks (Fox North).

 FRPC:

Bill C-11	FRPC Proposed amendment
3(1)(a) the Canadian broadcasting system shall, with the exception of foreign broadcasting undertakings providing programming to Canadians, be effectively owned and controlled by Canadians;	3(1)(a) the Canadian broadcasting system shall be effectively owned and controlled by Canadians,  (a.01) foreign undertakings may provide programming to Canadians but shall at no time be permitted to own and/or control a majority of the broadcast undertakings in Canada

ACTRA:

3(1)(a) the Canadian broadcasting system shall be effectively owned and controlled by Canadians; 

(NEW) (b) where a foreign broadcasting undertaking provides programming to Canadians, the Commission may establish such rules and regulations, and issue such orders, as necessary to ensure it contributes appropriately to the achievement of the objectives of this Act; 

Friends/IBG:

3(1)(a)             the Canadian broadcasting system shall be effectively owned and controlled by Canadians, recognizing that the Canadian broadcasting system includes foreign broadcasting undertakings that also provide programming to Canadians; shall, with the exception of foreign broadcasting undertakings providing programming to Canadians, be effectively owned and controlled by Canadians;

CDCE:

(a) the Canadian broadcasting system, with the exception of foreign broadcasting undertakings providing programming to Canadians, shall be effectively owned and controlled by Canadians, recognizing that the Canadian broadcasting system includes foreign broadcasting undertakings that also provide programming to Canadians; 

6. Making Use of Canadian talent and resources.

• ACTRA/Friends/CDCE/FRPC: Eliminate the two-tier obligations created for domestic versus foreign undertakings with respect to employment of Canadian talent and media workers. Restore the existing language requiring predominant use of Canadian talent and resources. (C-11 provides a lower standard for foreign undertakings with other provisions indicating they can make up for it with cash contributions).

ACTRA/Friends/CDCE:

3(1)(f) each broadcasting undertaking shall make maximum use, and in no case less than predominant use, of Canadian creative and other resources in the creation, production and presentation of Canadian programming, and shall contribute significantly to the creation, production and presentation of Canadian programming to the greatest extent that is appropriate for the nature of the undertaking; 

FRPC:

3(1)(a.1) each broadcasting undertaking shall contribute to the implementation of the objectives of the broadcasting policy set out in this subsection.

3(1)(f) each Canadian broadcasting undertaking shall employ and make maximum use, and in no case less than predominant use, of Canadian creative and other human resources to create, produce and present programming,

3(1)(f.1) each foreign online undertaking shall  (a) make maximum use of Canadian creative and other human resources to create, produce and present Canadian programming, and  (b) take into account the linguistic duality of the market they serve;

• CAB: There must be a single standard for domestic and foreign undertakings at a lower standard (“significant contribution”):

3 (1) It is hereby declared as the broadcasting policy for Canada that  (f) each [Delete:Canadian] broadcasting undertaking, shall [delete: employ and make maximum use, and in no case less than predominant use, of Canadian creative and other human resources] make a significant contribution to the creation, production and presentation of Canadian programming, unless the nature of the service provided by the undertaking, such as specialized content or format or the use of languages other than French and English, renders that contribution impracticable, in which case the undertaking shall make an appropriate contribution;

7. Trade Compliance, Film Production Funds and Copyright

• Von Finkenstein: In order to avoid trade retaliation from the United States, ensure that foreign streaming platforms are able to access any film production fund to which they contribute, which means waiving the “Canadians only” rule for ownership of copyright.

10 (3) Notwithstanding the particular terms of any fund, registered online broadcasting undertakings qualify for all the benefits available from any fund to which they contribute pursuant to a condition imposed by the Commission, regardless of whether they are Canadian or foreign owned or controlled.

8. Local News.

Unifor/Bell: give CRTC the express power to require contributions from all broadcasting undertakings, including online undertakings, to an independent fund for news journalism, taking into account local presence and broadcasting staffing:

Amend section 11.1(1) as follows:

The Commission may make regulations respecting expenditures to be made by persons carrying on broadcasting undertakings for the purposes of

… 

(d) developing, financing, producing or promoting local news and information programming, including through contributions made by distribution undertakings either to a related programming undertaking or by distribution undertakings or online undertakings to an independent fund. In making regulations for the distribution of these contributions, the Commission shall take into account the local presence and broadcast staffing of the programming undertaking.

[BCE amendment adds “regional” and “national” to “local” news]

9. CRTC Administration:

• CDCE: Preserve cabinet appeals and include appeals from CRTC “orders,” not just licensing conditions (foreign undertakings will not be formally licensed under C-11).

28 (1) If the Commission makes a decision [delete: under section 9 to issue, amend or renew a licence], the Governor in Council may, within 180 days after the date of the decision, on petition in writing of any person received within 45 days after that date or on the Governor in Council’s own motion, by order, set aside the decision or refer the decision back to the Commission for reconsideration and hearing of the matter by the Commission, if the Governor in Council is satisfied that the decision derogates from the attainment of the objectives of the broadcasting policy set out in subsection 3(1). 

• FRPC: Expand the definition of a CRTC “decision” to include Commission regulations and policies that make rulings on licenses and orders almost moot.

• FRPC: A “prove it” approach to taking into account the “administrative burdens” (cost) of regulation to broadcasting undertakings.

C:11: (g) is sensitive to the administrative burden that, as a consequence of such regulation and supervision, may be imposed on persons carrying on broadcasting undertakings, and

(g) considers evidence that costs of regulation and supervision of persons carrying on broadcasting undertakings are unreasonable, and

• FRPC: More information should provided by the CRTC in its annual reports.

(vi) notices of violation issued under section 34.8 of the Broadcasting Act in relation to contraventions of any of subsections 42(1) to (4) and (7), 43(1) to (3) and 44(1) to (3) and (6) of the Accessible Canada Act.

(b) the broadcast year, including

(i) statistics describing the implementation of section 3 including but not limited to

1(a) total and first-run hours and numbers of Canadian and non-Canadian programs broadcast by each element of the system during the year

1(b) total and first-run hours and numbers of first run of Canadian programming broadcast in English, in French or in Indigenous languages by each element of the system during the year

1(c) expenditures on Canadian programming broadcast in English, in French or in Indigenous languages by each element of the system during the year

2. total and first-run hours of news, including hours allocated to local news, by each element of the system during the year

3. numbers of Canadian and foreign broadcast undertakings operating in Canada and whether they are licensed, exempted from licensing, registered or other

4. full-time or equivalent employment numbers by each class of broadcasting undertaking including online undertakings and by type of employment (production, technical, sales and promotion and administration)