Senators back YouTubers in C-11; Heritage MPs amend and pass C-18

Alberta Senator and former Edmonton Journal columnist Paula Simons navigated a key amendment to Bill C-11 through the Senate Transportation and Communications Committee.

December 10, 2022

It was a busy Ottawa week in Canadian media policy. Parliamentary committees wrapped up amendments to the Online Streaming Act C-11 in the Senate and the Online News Act C-18 in the House.

On C-11, Senators approved 25 out of 100 proposed amendments after logging 65 meeting hours and hearing from 135 witnesses, stretching from June to December.

The headline news is an amendment to the Bill’s controversial regulatory power over video and music “programs” uploaded to social media services like YouTube.

The rewrite of article 4.2(2) was authored by Alberta Senator Paula Simons and Québec’s Julie Miville-Dechêne. Former journalists, both were appointed to the Senate by Justin Trudeau and both joined the dominant Independent Senators Group made up of former Liberal senators who more often than not can be counted upon to support government bills.

Their keystone amendment was neither endorsed nor opposed by the official Government Representative in the Senate, Marc Gold. This suggests the two Senators were able to round up enough votes to overcome the wishes of the governing party. Senators skipped a roll call vote on the amendment. For now, the federal Liberals’ view of the amendment —-whether it will be adopted when C-11 returns to the House of Commons in the new year—- remains unclear.

Simons told Senators the amendment had been put together with input from YouTube, TikTok, and Québec music producers, all of whom have been quiet since the amendment passed.

The amendment restricts the CRTC’s regulatory authority over programs uploaded to social media platforms to content either posted by the platforms themselves (for example, YouTube’s proprietary music service); songs uploaded by music companies; or videos uploaded by licensed broadcasters or streaming services. That means CRTC regulation of user-generated content uploaded by YouTubers or anyone else would stay forever out of bounds.

Here’s the text describing how the CRTC could “scope in” certain programs to be subject to regulation:

4.2 (2) In making regulations under subsection (1), the Commission shall consider the following matters:

(a) the extent to which a program contains a sound recording that has been assigned a unique identifier under an international standards system;

(b) the fact that the program has been uploaded to an online undertaking that provides a social media service by the owner or the exclusive licensee of the copyright in the sound recording, or an agent of the owner;

(c) the fact that the program or a significant part of it has been broadcast by a broadcasting undertaking that

(i) is required to be carried on under a licence, or

(ii) is required to be registered with the Commission but does not provide a social media service.

No doubt, the amendment will be parsed for legal nuances or loopholes in the coming weeks.

An important caveat is that Senators did not vote down C-11’s obligations on broadcasting undertakings to promote Canadian videos and music, otherwise known as “discoverability.”

Nonetheless if the Simons/Miville-Dechêne amendment is accepted by the government, YouTuber fears of algorithmic “backfiring” or international retaliation will have been addressed.

What will happen when this amendment goes back to the House of Commons in the new year?

The political momentum behind C-11’s discoverability powers has been driven by the Québec music industry and like-minded cultural nationalists. That brings Bloc support for any changes to C-11 into the equation.

The leadership shown by the two Senators can only attract admiration. The symbolism of a compromise amendment brokered by an Albertan and a Québecoise is unmissable. But as intriguing as it is, the amendment could flicker out or it could serve as the template for a rethink by Heritage Minister Pablo Rodriguez.

As for other amendments, three weeks ago MediaPolicy.ca recommended six “must haves” to Senators.

Here is how they fared:

No Internet Czars: Senators voted down section 7(7) of the Bill which expands the federal cabinet’s s.7(1) powers to give “policy direction” to the CRTC on subject matters listed in the CRTC’s general regulatory power in section 5(2). The new 7(7) power allows cabinet to write detailed terms and conditions for the activities of online undertakings, the very kind of authority that section 7(2) forbids to cabinet in the case of licensed broadcasters. Despite the government gamely defending 7(7) as legislative housekeeping, it is anything but.

Cabinet appeals quashed. Senator René Cormier failed to sway a majority of Senators to mirror the existing s.28(1) rights of Canadians to petition federal cabinet over CRTC policy errors when licensing broadcasters for similar mistakes in regulating online undertakings (i.e. Netflix or Disney). The government wants rid of these troublesome appeals and minced no words on the topic. That is ironic since cabinet just approved one such appeal in the case of the CRTC’s hash-up of the CBC licence renewal.

Public Service Channels on foreign platforms. Senators turned down another Cormier amendment to extend existing CRTC powers compelling cable companies to carry and pay fairly for Canadian “9(1)(h)” public service channels to foreign online platforms operating in Canada, like Amazon Prime or PlutoTV. However Cormier had a back-up plan and it worked: Senators accepted his amendment authorizing the CRTC to replace the revenue that public service channels will lose with a levy on Canadian media companies, perhaps something analogous to the Canada Media Fund or the Independent Local News Fund. Government Senate Representative Marc Gold spoke in favour of the amendment.

Not saving local news. No amendment was tabled to provide the CRTC with a more ambitious mandate to fund local news. (Regrettably MediaPolicy.ca is filing that one in the “told you so” folder).

• The Bill’s union-busting changes to the federal Status of the Artist Act were repealed with the endorsement of the Government.

California or Canada? Lastly and certainly not least, Senators rejected an amendment to overturn the Bill’s section 3(1)(f.1) exemption of foreign online undertakings from domestic laws on hiring Canadian writers, directors and actors when making Canadian content.

Among other amendments that passed Committee, one surprise was the Conservatives’ narrowly approved motion to amend section 10 (1.1) which sets out, in general terms, the well known CRTC definition of Canadian content.

The amendment appears to water down the requirement that Canadian content be solely produced by Canadians retaining ownership of global distribution and other re-sale opportunities.

The Government Representative neither endorsed nor opposed the amendment. That will put the Canadian film production community on full alert.

One last point of interest on C-11: several amendments seeking to shoehorn changes to the CBC into the Bill were defeated (except for an amendment commanding the public broadcaster to exit its ‘Tandem’ advertorial business, which the government opposed). In speaking against them, Government Representatives promised that Heritage Minister Rodriguez intends to deliver on his Mandate Letter to review the CBC.

***

In the “other place,” as Senators like to describe the House of Commons, MPs on the Heritage Committee finished clause-by-clause review of C-18.

Here are a few highlights:

• Bloc MP Martin Champoux won approval of a critical amendment to the definition of ‘eligible news business.’ Membership in a Press Council or adherence to an Editorial Code of Conduct will be mandatory.

• Conservatives are not accepting victory despite scoping in small publishers that employ no independent journalists, only proprietors and family members. The Tories were holding out for covering self-employed freelancers under the Bill which was not agreed by the other parties.

• Conservatives tried but failed to exclude the CBC from C-18’s bargaining scheme. This forms the basis of their political narrative that the Bill denies aid to small publishers (almost entirely untrue) in order to funnel compensation to CBC, Bell Media and Rogers (but omitting any reference to the right-leaning Postmedia and Québecor).

  • A series of motions from NDP MP Peter Julian designed to give small and independent news organizations access to the details of voluntary agreements reached between the platforms and other news organizations were defeated. The purpose of Julian’s amendments was to give these news organizations the ability to benchmark their bargaining expectations against other negotiated outcomes. The amendments were defeated without support from any of the other three parties.

• The Liberals scaled back the Bill’s ‘undue preference’ regulation of algorithmic news rankings which had drawn the ire of Google. The legislation is better for it.

An updated MediaPolicy.ca review of C-18 amendments is posted here.

Also, I posted a summary of the Australian Finance Minister’s report on the forerunner of Canada’s C-18, the News Media Bargaining Code, following its first 18 months of operation.

***

The American equivalent of Bill C-18, the Journalism Competition and Preservation Act (JCPA) has stalled in US Congress.

The week had started off with speculation the legislation would be earmarked into the lame duck Congressional bill on defence spending. The Bill is sponsored by Democratic Senator Amy Klobuchar and has support (but also opposition) among Democrats and Republicans. Notably, Senate Minority Leader Mitch McConnell (R-Kentucky) backs it.

Adding to the drama, the New Zealand government announced its intention to follow Australia and Canada with a similar bill.

Then Facebook re-issued its now standard threat to walk away from news content if Congress passes the JCPA in a carbon copy statement made previously to Canadian MPs.

By the end of the week, the JCPA did not make it into the defence omnibus bill and its fate remains unclear.

***

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Howard Law

I am retired staff of Unifor, the union representing 300,000 Canadians in twenty different sectors of the economy, including 10,000 journalists and media workers. As the former Director of the Media Sector and as an unapologetic cultural nationalist, I have an abiding passion for public policy in Canadian media.

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