THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS
EVIDENCE
OTTAWA, Tuesday, September 20, 2022
The Standing Senate Committee on Transport and Communications met with videoconference this day at 9 a.m. [ET] to examine the subject matter of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts.
Senator Leo Housakos (Chair) in the chair.
[English]
The Chair: I am Senator Leo Housakos from Quebec; I am the chair of this committee, and I would like my colleagues to briefly introduce themselves.
Senator Dawson: Senator Dennis Dawson, Quebec.
Senator Miville-Dechêne: Senator Julie Miville-Dechêne, Quebec.
Senator Loffreda: Senator Tony Loffreda, Quebec.
Senator Cormier: Senator René Cormier, New Brunswick.
Senator Simons: Senator Paula Simons, Alberta, Treaty 6 territory.
Senator Quinn: Senator Jim Quinn, New Brunswick.
Senator Clement: Senator Bernadette Clement, Ontario.
Senator Wells: Senator David Wells, Newfoundland and Labrador.
Senator Klyne: Good morning, Senator Marty Klyne, Saskatchewan.
Senator Dasko: Senator Donna Dasko, representing Ontario.
The Chair: Colleagues, we are meeting to continue our examination of the subject matter of Bill C-11, An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts.
[Translation]
For our first panel of witnesses, we are pleased to have with us Ms. Monika Ille, Chief Executive Officer of the Aboriginal Peoples Television Network. We also have with us Ms. Nancy Juneau, Chairman of the Board, and Ms. Marie-Christine Morin, Director General, from the Fédération culturelle canadienne‑française.
[English]
We also have with us Brad Danks, Chief Executive Officer from OUTtv, who is with us via teleconference.
We will accord five minutes to each of the groups that are with us. I turn the floor over to Ms. Ille.
[Translation]
Ms. Ille, the floor is yours.
[English]
Monika Ille, Chief Executive Officer, Aboriginal Peoples Television Network: Mr. Chair and honourable senators, [Indigenous language spoken].
Hello, my name is Monika Ille. I am an Abenaki from the community of Odanak. I am the Chief Executive Officer of the Aboriginal Peoples Television Network, or APTN, and I want to thank you for giving me the opportunity to appear before you today. I would like to begin by acknowledging that the land on which we are gathered is the traditional, unceded territory of the Anishinaabe Algonquin Nation, and we thank them for their hospitality.
APTN is a national Indigenous-owned-and-operated television network. We provide Canadians with a full range of programming in English, in French and, regularly, in more than 15 different Indigenous languages. APTN was the world’s first national Indigenous television network, and we are now in our twenty-third year of operations. APTN has transformed how Indigenous peoples in Canada are seen on television and how we engage with the entire broadcasting sector. APTN is our own service by and for our peoples, and we reach out to all Canadians in our authentic voices.
[Translation]
Without the Broadcasting Act, and if the CRTC did not exercise its power under paragraph 9(1)(h), APTN would not exist. Our objective is to ensure that Bill C-11 continues to give the CRTC the authority it will need to support the ambition of Indigenous peoples and our right to operate our own services.
We support Bill C-11. We must update the Broadcasting Act to reflect modern technology and take advantage of the opportunities of the Internet era.
[English]
The Broadcasting Act also needs to better reflect Indigenous peoples in Canada today. A lot has changed since 1991, including the adoption of the United Nations Declaration on the Rights of Indigenous Peoples. Proposed new section 3(1)(o) of the Broadcasting Act recognizes for the first time that Indigenous programming reflecting Indigenous cultures and languages should be provided by broadcasting undertakings carried on by Indigenous persons. This is a key change to the act that was inspired by Article 16 of the United Nations Declaration on the Rights of Indigenous Peoples.
There are also additional references in the bill to support Indigenous language programming. The regulatory policy section in paragraph 5(2)(a) of the Broadcasting Act will require the CRTC to take into account the different characteristics of French, English and Indigenous language broadcasting as well as the needs and interests of Indigenous peoples. This is the first time Indigenous language content has been placed on an equal footing with English and French language content in the act.
However, there is a serious and harmful gap in Bill C-11 as it relates to online distribution of APTN and some other important services. The most notable objectives and policies don’t mean much if they cannot be implemented.
[Translation]
In 1999, when APTN obtained its first licence, the CRTC required that the network be distributed by cable and satellite companies and set a reasonable overall price. Under Bill C-11, the CRTC could, in theory, order certain online distributors that offer programming services from other entities to distribute APTN, but the CRTC could not set the distribution conditions.
These conditions would instead be subject to good-faith negotiations with digital platforms. What would those digital platforms be? They could be digital players you already know, and even include cable and television over internet protocol, or IPTV, broadcasting distribution undertakings, BDUs, in Canada that have now moved to online distribution.
[English]
We’re deeply concerned that the good-faith negotiation requirement will not result in meaningful support for APTN in the future and is for sure a path to the decline of our network. APTN lacks market power to conduct meaningful negotiations with powerful online distributors, and APTN’s mandate is not market driven. Ultimately, if a distributor fails to act in good faith, what would be the remedy? As it stands now, the CRTC could still not set terms for the distribution of APTN. This gap must be filled.
[Translation]
APTN is a member of the Independent Broadcast Group. That group has proposed amendments to Bill C-11 to address this gap. Those amendments are similar to what was proposed by the Chair of the CRTC when he appeared before you in June.
[English]
Thank you. I will now be pleased to answer your questions.
[Translation]
The Chair: Thank you very much.
Ms. Juneau, you have the floor.
Nancy Juneau, Chairman of the Board, Fédération culturelle canadienne-française: Mr. Chair and members of the committee, good morning. I thank you for your invitation to appear to discuss Bill C-11 and its importance for Canada’s francophones and Acadians.
My name is Nancy Juneau, Chairman of the Board of the Fédération culturelle canadienne-française, and I’m accompanied by our Director General, Marie-Christine Morin.
This is a pivotal time for the Canadian broadcasting system, when all of its components must more fully embody the fundamental principle at its core. The airwaves, whether Hertzian or digital, are a public asset. The access that Parliament grants to creators, producers, broadcasters and distributors is a privilege. In return, they must contribute to Canada by giving back some of the revenues they receive from it.
With the increasing control of online giants, that fundamental principle is at risk of being eroded. That erosion is even more troubling with respect to the francophone community, for whom access to all screens is a challenge, a struggle, while being a fundamental condition of its existence and development.
Knowing that nothing is really guaranteed for the francophone community in Canada, the Fédération culturelle canadienne-française submits that major public policies, including the Broadcasting Act, are the threads of our social fabric. As such, they must give effect to Canada’s fundamental principles and constitutional guarantees of linguistic equality, respect for minorities, cultural diversity and the Official Languages Act.
In this respect, Bill C-11 is an important step, and we strongly support it as it stands. I’ll now give the floor to Marie-Christine Morin.
Marie-Christine Morin, Director General, Fédération culturelle canadienne-française: It is important to reiterate the need to preserve what’s been gained from the work to date in reviewing this act, particularly to protect and maintain the amendment set out in subsection 5.2(1) of Bill C-11 concerning the obligation to consult with official language minority communities, or OLMCs.
We are disappointed and very concerned about the unilateral request by the CRTC to strike section 5.2. That amendment was adopted by the Standing Committee on Canadian Heritage in both bills C-10 and C-11. However, it’s essential to the equal participation of OLMCs in the Canadian broadcasting system.
To date, official language minority communities have not been satisfied with their experience of the CRTC’s consultation and decision-making process. Our small organizations face significant resource and capacity limitations. Section 5.2, which sets out the obligation to consult and how to do so, is, in our view, essential.
The CRTC is a federal institution governed by the Official Languages Act, specifically Part VII of the act. As such, it must take appropriate measures in its public consultation processes to ensure that it engages with and protects OLMCs. For example, the CRTC must take care to mitigate the asymmetry between groups representing our French-language minority communities and the industry giants, not to mention online giants.
We are appealing directly to you, as senators, given your specific mandate to protect minorities, and we ask you to ensure that section 5.2 is maintained in its current form. That amendment protects OLMCs, particularly in dealing with potential issues related to policy and organizational changes at the CRTC.
The wording of section 5.2 is based directly on jurisprudence from the Supreme Court that defines what constitutes a significant consultation.
The need for genuine consultation with our communities must also be included in Bill C-13, which seeks to modernize the Official Languages Act. I can confirm the FCFA’s firm intention, and that of our francophone networks in Canada, to ensure this.
Thank you for this opportunity, and I am happy to answer any questions.
[English]
Brad Danks, Chief Executive Officer, OUTtv: Good morning, senators. Thank you for letting me appear today. My name is Brad Danks and I am CEO of OUTtv, which is both a regulated linear TV channel in Canada and an online streaming platform in Canada and around the world. I have worked in the entertainment industry in Canada for almost 30 years, first as an entertainment lawyer, and later as a broadcasting executive. As an executive, I have negotiated many online streaming distribution deals in Canada and around the world, including with Amazon, Apple, Roku, Comcast and others.
Even though we are a small, niche service focused on the LGBTQ2+ community, OUTtv is one of Canada’s leaders in online streaming. The arrival of the studio streaming platforms in Canada like Disney+ and the growth of channel aggregators like Amazon, Roku, and Apple TV has changed the content business in Canada forever. We are adapting to this reality. Canadian companies need to invest heavily in original programming to remain competitive. This is expensive and risky. However, it also opens up global export opportunities. Five years ago, roughly 35% of OUTtv’s content was original programming; next year, it will be close to 90%.
To justify these investments in original programming, we must have the distribution in place to sell it to audiences. By “distribution,” I mean actual access to viewers through channel aggregating platforms, like Amazon, Apple TV and Roku, and through Canada’s domestic video platforms, which are also moving to streaming. However, premium content platforms like these do not just allow you to upload your service; you need to negotiate your distribution contracts. They are the new gatekeepers in the system.
Online distribution markets are maturing quickly in the United States, where large companies, including studios like Disney and Netflix and tech giants like Amazon, Apple and Google, along with equipment manufacturers like Huawei, Samsung and LG, fight for market share. There are clear signs that the U.S. market is tightening. It is becoming harder for new services to launch. Some platforms have even been cutting services and then capping the number of services on their platform. With no requirement for any of these platforms to offer Canadian services in Canada, there is a real fear that many Canadian services will be locked out of our own market. It is especially a concern in the longer term as the U.S. market is so much larger and more developed than in Canada.
Anyone who has experience with broadcasting distribution knows there are many reasons why a platform may not choose to carry a service. hOne is content. Online platforms may object to or not care about Canadian diversity. As an LGBTQ2+ service, we have already been denied access on platforms outside of Canada more than once simply because of our content focus.
Another reason is competition. Online platforms may not want Canadian services they consider competitive to their own. Another sad but common practice is pay for play. Carriage contracts will be negotiated not only in the U.S. now, but in Seoul, Beijing and other capitals. Many services such as Russia’s RT are paid-for carriage deals. These deals skew the market and often attempt to block other services by requiring exclusivity. While Canada can’t control these global partnerships, by ensuring our services have access and fair market terms in Canada, we can at least prevent some of the impact of these abuses in our own country.
Finally, there are partnerships, or what we call “horse-trading deals,” where different platforms trade content and preferred deals so each has distribution on the other’s platform. This has happened routinely in the Canadian system over the past decade. All of these, and more attempts to prefer some content over others, happen as a matter of routine in the traditional system. Online distribution is becoming more like traditional television every day.
The CRTC should have the ability to ensure Canadian services are offered in Canada and treated fairly. This is a straightforward requirement to ensure our cultural autonomy and Canadian ownership and control of the broadcasting system, the first policy objective of the Broadcasting Act. Unfortunately, Bill C-11 guts the CRTC’s authority in this area. A small number of targeted changes will go a long way to address the problem.
OUTtv is a member of the Independent Broadcast Group, or IBG. We agree with IBG’s submissions to the committee and those made by my colleague Ms. Ille from APTN today, and support the amendments it suggests, including changes to support the distribution of Canadian services and the ability of the CRTC to settle disputes. This is what the CRTC has done for years, and they have expertise at it and, yes, they can do this. Thank you for letting me appear today. I am happy to answer any questions you may have.
[Translation]
The Chair: I have a question for Ms. Juneau or Ms. Morin. Your organization argued to have players in the cultural industry participate in the funding and discoverability of what you refer to as high-quality Canadian content. Let me say that, in reality, in this digital era, Canadian creators of YouTube content are among the largest exporters of cultural content in the world. Approximately 90% of their audience is abroad. Last week, representatives from Spotify told us that they had a pool of 2 million listeners of francophone music.
However, no other country imposes obligations related to discoverability or source. What will happen, then, if Bill C-11 is passed as is and if other countries respond? For example, how will Canadian creators react if France imposes the same requirements for discoverability and local content, and Canadian creators suddenly become invisible? Is that not a danger related to the relatively small size of the Canadian market, particularly the francophone market? What’s your view on that?
Ms. Juneau: I’ll let Ms. Morin answer the question.
Ms. Morin: Ms. Juneau can add to my response. Clearly, we fully support the comments by our member from the Alliance des producteurs francophones du Canada, who appeared before you last week and spoke about independent francophone production and discoverability. We support the comments by our member.
As for discoverability, there are clearly issues. The discoverability of such content must be ensured, and the concept and definition of Canadian content must be addressed. Clearly, that part of the bill is of particular concern to us. This definition must set the stage so that available content not only is discoverable, but also sustains and grows our audiences and creators as well as artists in the community.
Ms. Juneau: I believe that Ms. Morin answered your question very well, senator.
The Chair: I have a follow-up question. Do you not agree that such a bill would diminish the ability of platforms like YouTube to give our artists opportunities to promote their work internationally? Isn’t there a risk that other countries will respond?
Let’s say that France closes off because of the effect of this bill on Canadian markets. Do you not think there would be a negative impact on our artists who are trying to tap the international market, which they are able to do now using the new platforms that are available?
Ms. Morin: I think work needs to be done in terms of algorithms. We must impose certain algorithms that would ensure the discoverability of francophone content, here and abroad.
I think the bill must include provisions that allow us to address those algorithms, which as we know, steer us to certain content, sometimes unwittingly.
The Chair: Thank you.
[English]
Senator Simons: Mr. Danks, you have raised a really interesting new facet of distribution that I don’t think we have talked about yet in this committee. I think it is a mark of how quickly the ecosystem is changing because I think when Bill C-10 was first drafted, the kind of channel aggregators that you are describing didn’t actually exist. I am wondering if you and Ms. Ille could both speak to this issue because it affects both of your systems of programming. Would you be looking for the CRTC to negotiate something like mandatory carriage of your whole network or would you be looking for something more like deals with Amazon or Disney to buy some of your individual programming?
Mr. Danks: Thank you, senator. What we’re looking for is for them to carry our entire service, and they do now. We have a deal with Amazon; they take everything. We have a deal with Apple TV in Canada; they take everything. We have deals with both Amazon and Apple TV outside of Canada as well.
I think one of the important things to remember here is that there is almost unlimited capacity for these companies to carry. Carriage of channels is really based on bandwidth and bandwidth has not been a problem in the industry for almost 15 years. So it is really not a problem. On the SVOD side — or subscription video on demand — they’ve actually been looking for more subscription services in Canada. They would like to add more. The real key is getting on them in Canada and then getting outside around the world as well.
The one area of services that is very new is what are known as fast channel services. I call them 1980s television back again because it is a free, linear service that is supported only by advertising. These have taken off very rapidly in the United States. The market leaders there are Roku, Samsung and Pluto TV, all three of which are now coming into Canada. That market in the United States is maturing very quickly. One of my fears is long term. Right now, Pluto TV is looking for channels and Canadian services on a linear basis to add. They have said they are probably going to launch, I believe, in December or January; they are very open about wanting to add both our channel and APTN.
My real concern is the longer term. Watching the markets mature over the last number of years, what you see is that, over time, you get bullied out of the system and you end up not being able to gain access; or even if you get access, you don’t get access to fair terms.
In my view, we should simply say, “Look, platform, you want to come into Canada? Carry the Canadian services. Put them up.” The deals are revenue share, so it is not like they lose money. They have unlimited capacity. We won’t worry about what is going on in the rest of the world, but in Canada, we want to make sure that we get our services up, period. My view is that’s not hard for them to do and it doesn’t really cost them anything, so I don’t understand why everybody thinks it is a big ask.
[Translation]
Senator Miville-Dechêne: My question is for Ms. Morin and is similar to the chair’s question about algorithms. You said that the government should do something about that. What’s clear in this bill is that the government will not intervene directly concerning algorithms, given the controversy that it has caused.
I want to ask you a very specific question because we’re dealing with a paradox. Take the example of a French-language work — in Quebec or outside Quebec, it’s not important. Let’s say the work is an algorithm-based recommendation but many users disregard the content because they live in X, Y or Z and are not at all interested in French-language content. That would lower the work in the algorithm rankings and could therefore have a paradoxical effect: the measure could work to some extent in Canada but lead to a smaller audience. There is no simple way to make platforms like YouTube or Spotify support that content, particularly when it’s not Charlotte Cardin. I’m talking about people who are not as well-known.
How do you reconcile your position that the government needs to address algorithms, given the risks associated with a voice that has never been heard on those platforms? You know, it’s unprecedented.
Ms. Morin: That’s an excellent question. There’s certainly a paradox, as you just said. Can it really be ignored? Is it really something that can be overlooked? I understand that the bill cannot address it directly or impose algorithms. Can parameters be put in place so this content can be disseminated?
I heard my colleagues speak about mandatory distribution of Canadian content. Is that not something that should be covered by parameters? That may not be included in the bill; maybe it will be in the order put in place by the CRTC.
I agree with you. It’s a major paradox that needs to be addressed, and it presents a definite risk.
Maybe I could get back to you with a more in-depth analysis, because it really is a problematic situation. It’s important.
Senator Miville-Dechêne: It’s complicated, that’s true. I have a brief follow-up question for Ms. Ille. We’ve met before.
You’re asking that the conditions for distribution be imposed and negotiated by the CRTC. However, it’s been said that that could cause problems with respect to the Canada-United States-Mexico Agreement, known as CUSMA. What about a fund that would provide you with financial support, although I’m not sure who would fund it? Is there an alternative to your idea of imposing distribution conditions on foreign giants so you have enough money to survive?
Ms. Ille: That’s an excellent question. I prefer that the CRTC be able to establish the conditions. I think that’s the easiest. The CRTC does that now, and it works very well.
As for the fund, I would need more information. How much would be invested in it? Who would have access to it? How would the money be distributed and under what conditions? It adds another extremely demanding layer of administration and planning.
Without more information, I prefer what we have, a mechanism that is working very well right now. The CRTC doesn’t go too far; it makes good decisions. Also, as I was saying, we’re here today thanks to the CRTC. What would the percentage of the fund be? Would there be enough funds for APTN to survive? I have doubts because I don’t have enough information.
Senator Miville-Dechêne: Thank you.
Senator Cormier: My question is for the Fédération culturelle canadienne-française.
First, I’d like to congratulate you on the work you do for arts and culture in francophone and Acadian Canada.
I’d like to come back to the issue of section 5.2. You talked about the importance of maintaining that section. I’d like to better understand the current consultation relationship between the FCCF and its member organizations and the CRTC. What’s problematic, and why do we need section 5.2?
Ms. Morin: Thank you for your question, senator.
First, I think it must be stressed that taking part in the CRTC process is a burden for our organizations. In terms of human resources, our organizations don’t have in-house legal experts they can rely on. Financially, significant amounts need to be invested to access the services of broadcasting specialists, so we can fully understand the issues and assess their impact on the industry.
Then, everything we hear on the ground must be translated into licence conditions. The concept of “licence conditions” is not language that we’re very familiar with, so we need to find specialized support in that area.
I can give you a recent example. The FCCF took part in the renewal of Radio-Canada’s licences. It’s a very time-consuming process. Endless hours are needed to carry out the work at every stage of the process. Reports provided by the broadcaster must be studied, possible gaps must be analyzed, ground-level data must be compiled, and data and research must be generated in areas where evidence is lacking; so it’s hard from that standpoint.
If you multiply that effort by the number of licences that need to be renewed and that could have an impact on us, the work required is practically impossible for us. Under the current process, it’s assumed that the necessary resources are there, that the risks and the effects on our communities can be anticipated and that research can be conducted — as I said earlier — to actively and equitably take part in the process.
Section 5.2 would specify how we must be consulted. Between us, that would really make a difference.
Senator Cormier: I have a question for Mr. Danks.
You said that OUTtv faces obstacles with some foreign distributors because of the community it focuses on, namely all the work done around the LGBT community.
Could you give us more specific examples of the obstacles you encounter so we can better understand the importance of the CRTC in supporting you in that work?
[English]
Mr. Danks: I am sorry. I don’t have a translation coming in to me and my French is not good enough to follow your entire question.
Senator Cormier: You mentioned that you had obstacles with certain distributors because of the LGBTQ content. Can you give us some concrete examples so we can better understand what role the CRTC could play to help you with that?
Mr. Danks: I’m not sure I want to name names publicly, but one large service in the U.S. — not a tech platform — simply denied us and said they don’t want that. Two others were out of Asia. I would call them equipment manufacturing-level companies. You can guess who those might be, but they just said they won’t take that kind of content at all, period. They don’t care if there’s an audience for it. It’s just not something that they want. I would provide that to you in confidence, but I don’t want to give that publicly.
Senator Cormier: Thank you.
Senator Loffreda: My question concerns the APTN. You addressed concerns regarding the current state of Bill C-11. Could you expand on those concerns and the corrective measures? How critical is it to address those concerns, and what would be the impact of not addressing them or of correctly addressing them?
Ms. Ille: Linear television is slowly fading away and people are migrating to online. It’s important for APTN to have that presence online, so it’s important for the CRTC to regulate APTN’s service on online distributors. The fact that they can set conditions and resolve the dispute means that we have to negotiate with those big online distributors. Since we’re not market driven, we service a public that is underserved. We have a mandate not to have ratings and sell advertising. It’s part of our operations, but that’s not what we do. We are there to support Indigenous voices and get our stories out there. The Canadian Indigenous population is a small population but it needs to be serviced. Last year, we commissioned more than 450 hours of original programming. Of that, 147 were in different Indigenous languages. About 90% were produced by independent producers, mostly Indigenous.
APTN is part of this thriving Indigenous production community. What is going to happen in the future if everything is going online? The CRTC cannot help to resolve a dispute or set terms. We’re going to negotiate, maybe have a few pennies here and there, if we’re lucky, but that’s going to bite into our operations and we will have to cut all our storytelling. From an Indigenous point of view here, an Indigenous broadcaster is fully going to fade away, so everything we’ve built for the past 23 years is going to slowly go away. I think that’s unacceptable.
I think the CRTC truly believed in the importance of what APTN is doing, and I think they still do today. They have not abused their power in the way the Broadcasting Act is written right now, so why can’t we give them the authority to be able to resolve a dispute and set the terms in the years to come? I’m not only thinking in the short term but in the medium and long term. Hopefully, we won’t review this Broadcasting Act in another 30 years. We’ll review it before, as things are changing, but we need to give flexibility to the CRTC to be able to do that.
Senator Dasko: As Senator Simons said, we’re drilling down more and more and learning more and more about this incredible ecosystem that is developing in this marketplace, so I want to ask you, Mr. Danks and Ms. Ille, if you could drill down a bit on what you’re expecting and asking the CRTC to do.
Mr. Danks, when you started, you said you wanted the CRTC to be able to negotiate. However, it sounds like you’re asking the CRTC to set conditions for the terms that you’re going to have with potential online streamers.
Could you clarify exactly what you are asking, what you are hoping the CRTC will do and what kind of language you’re looking for in Bill C-11? I want to drill a little further down into what you want them to do. Maybe you could even illustrate with an example. That would be really helpful. Thank you.
Mr. Danks: I think it’s fairly straightforward, senator. We’re not asking the CRTC to negotiate the deals for us. We want to know that they’ve got our back. We want the platforms to know that if they come into Canada and there aren’t fair terms and there aren’t carriage deals there, the CRTC could step in and set those terms. We want them as a backstop. That’s what they do right now in the broadcasting system.
A good example would be let’s say we went to a service and they said, “We don’t want to carry you.” I would say, “Well, the CRTC may order our carriage.” They then said, “Oh, good point. We’ll carry you, but we don’t want to pay you anything.” So we’d go to the CRTC and say, for example, that revenue-share deals on these platforms are roughly 50-50 or better for the content provider. Maybe the CRTC sets a rule and says no revenue shares worse than 50-50 between the parties, which right now is pretty much industry standard. I would love to see a rule like that in the long term from the CRTC. Sometimes what happens now is that if you go to a platform and say you’d like them to carry you, they say, “We’ll carry you, but we don’t want to pay you. We’ll put you on, and you can figure it out from there.”
Those are the sorts of things we want. First and foremost, it’s knowing that they can set reasonable rules within the system, and, second, that they’ve got our back. If there’s a problem, they’ll step in, and we’ll have a dispute.
To Ms. Ille’s point, they can settle that dispute by issuing an order, whereas in the current environment they can’t. Other than using harsh language, there’s not much we’re able to do if they decide not to work with us.
Senator Dasko: Would this occur on an ad hoc basis, or would they set a rule that would cover a whole set of firms? Would they come in when you are making deals? Would you be asking them to come in at that level, or are you asking them to set rules that would affect an entire set of firms?
Mr. Danks: We certainly wouldn’t be asking them to come in on a negotiated basis. What I believe will happen is they’ll set basic rules within the system. They do that now. They have terms and trade rules, and they have wholesale code rules, which require the parties to work together. They create a structure around which the parties can negotiate themselves, and, should those negotiations fail, they have a series of mediations and arbitration systems that they set in. This is what they do, day in and day out.
I think these platforms in many ways are much easier to regulate than the current broadcasting system because the deals are really very straightforward: We will carry you, we’ll take your content and we will pay you a revenue share. I think in some ways it’s much easier, whereas in the current system there’s a lot of bickering about packaging and issues like that, which are a lot more complicated to resolve.
The future, in my view, is going to be easier to regulate in many ways. There are more new complicated issues such as algorithms and so forth, but generally the new platforms are very straightforward in how they function.
Ms. Ille: If I may add to that, APTN has mandatory carriage in Canada, so we have 35 cents per subscriber per month, and that’s about 90% of our revenues. As things are migrating online, we hope the CRTC would be able to set terms like that, coming with a fixed rate, in the case of section 9(1)(h) of the Broadcasting Act and mandatory carriage.
[Translation]
Senator Clement: Good morning and thank you to the witnesses. My first question is for the witnesses from the Fédération culturelle canadienne-française. We’re in a difficult context, given the results of the latest census, particularly as minority francophones. Apart from section 5.2, are you happy with Bill C-11 as it stands to resolve that difficulty?
[English]
The second question is for Ms. Ille. Unlike some stakeholders, you express confidence in the CRTC. Could you drill a little deeper into why you have that feeling around the CRTC and maybe whether the CRTC would require additional capacity to address some of the issues you raise?
[Translation]
Ms. Morin: I’ll let my colleague answer the first question.
Ms. Juneau: Thank you, senator. As I said in my opening remarks, the Fédération culturelle canadienne-française is very pleased with Bill C-11 as it stands. We feel that it’s an important step in addressing the issues facing the Canadian system, so that it reflects the reality of Canada today much better and allows online giants to begin contributing much more actively to the production and dissemination of Canadian content.
Our only concern is to ensure that the amendment requiring that the CRTC consult our communities be maintained. As my colleague Ms. Morin said, taking part in hearings for the organizations we represent is time-consuming, and we don’t always have the means to make as active and as strong of a contribution as we’d like. So, yes, we’re pleased. Obviously, all this will include ministerial orders, particularly concerning the narrower definition of Canadian content or the steps to take to ensure discoverability. That hasn’t come yet, but we hope that, with that foundation, we will have what we need to address these issues.
Senator Clement: Thank you, Ms. Juneau.
[English]
Ms. Ille: The CRTC has been instrumental to APTN’s existence. APTN is the first national Indigenous broadcaster in the world. APTN has become a role model for other Indigenous broadcasters internationally. The CRTC believes in what we do, supports our mission and they have an ear. They know that the industry is market driven, but sometimes you have services that are needed. There are voices that need to be said, voices that need to be heard and have a dedicated place, and they support all those voices.
Diversity is part of the industry, and if we weren’t there and neither were OUTtv, AMI-tv and others, it would be quite bland. We’re movers and shakers in the industry. We might be small, but we’re mighty.
To your question about whether the CRTC has the resources, I think they have the expertise and the knowledge, and they have been doing this for years. Regulating the Canadian industry is not an easy feat, and they are doing it wonderfully. They’re probably going to need more resources, but I think that’s something that has to be looked into further. I’m not a specialist in that case, but I’m sure they have what it takes. As I said, they have the expertise and knowledge to do so.
Senator Simons: I’m hearing very much what the representatives of OUTtv and APTN are saying about not wanting to be shut out of Canadian markets. I’m a little bit concerned, though. You are two established, well-regarded and proven services. If the CRTC were to require all of the big streaming aggregators to carry every Canadian network, at what point are they able to say, “No, I’m sorry. That’s an inappropriate choice for our market. The content is not good enough?” It doesn’t apply to you guys, but it might apply to somebody else in the future. How would you say the gatekeeping should function so that those companies are perhaps not forced to carry something that they don’t want to and that doesn’t match with their market?
Mr. Danks: It’s an excellent question, senator. It’s something I think about too. There have been very few, if any, new services launched in Canada over the last decade. I would simply say that the CRTC at some point will have to make sensible decisions around these things. We’re an important diversity brand, so we’re the ones that get the nod, but there will be other commercial brands looking for carriage out there. There are ways they can get started. They can get up onto YouTube and other services to demonstrate that they have audience potential.
It’s a good question. At some point in time, services in Canada will just not do as well, and that will be an issue. We’re going to have to decide how far we go.
I don’t know that there’s anything more to say about that. There may be a point where the CRTC says, “Okay, well, these 25 services or these 30 services are critical. As far as we’re concerned, all the others can negotiate their way on.” I could certainly see that happening down the road.
Ms. Ille: When you think of section 9(1)(h), mandatory carriage does not apply to all networks. They can choose the ones that should be mandatory. I think that thoughtfulness should transition to online as well.
Senator Simons: This is an excellent point. The section 9(1)(h) stations are APTN, OMNI, the weather channel, CPAC — the things that someone has decided are good for the Canadian cultural body writ large.
Ms. Ille: Yes, exactly.
Senator Simons: But it surely doesn’t make sense to demand that an American aggregator carry the Canadian weather — well, maybe it does make sense to carry the Canadian weather channel, because Canadians would like to know what the weather is. But there are other things where it may be a rather odd fit.
Ms. Ille: But they’re carrying channels, and you talked about brand and their market. If they’re serving the Canadian market, I should assume that Canadian channels should be available on their offerings. That’s a question where we go beyond just what they offer to see ourselves, our culture and hear our different languages. It’s a question of identity and reference. I think it goes beyond just the brand of the American distributor. I think they need to be respectful and to consider the market they’re serving.
Senator Simons: I guess that could include French-language services.
Ms. Ille: Definitely, they would have to.
Mr. Danks: Senator, it’s interesting. Last week, Sony announced they had carried 1,600 different services in different countries, so there’s a lot of capacity there. You’re right: At some point in time, it’s too many. You can’t carry a million; it doesn’t make sense. But if the service is to be supported by Canadians, then we can decide that; if the service doesn’t support itself commercially and it’s not supported similarly to mandatory carriage or some other requirement, then it just has to get by on commercial terms, and that’s it.
[Translation]
Senator Cormier: My question is for Mr. Danks and Ms. Ille. I’d like to come back to the terms of distribution for programming services. Does the amendment adopted by the House of Commons, at subsection 9.1(1), address the concerns about distribution issues in relation to foreign online platforms?
[English]
Ms. Ille: Yes, the CRTC could require an online distributor to carry programming services. That’s fantastic and wonderful; we’re happy for that. But once again, after that, what happens? Like Mr. Danks was saying, the problem lies with setting terms or to resolve a dispute, and that’s the gap that needs to be filled. As small independent broadcasters, we don’t have that market power to do so. That’s why we need CRTC intervention to support our asks.
Mr. Danks: I would echo that and add that all Canadian services are now independent. There isn’t a Canadian service — it doesn’t matter if it’s owned by Bell or Rogers — that is big enough to negotiate their way against the larger tech companies. These are the biggest companies in the world that we’re negotiating with, and it’s important we recognize that without having the leverage of the regulator there to assist us, it’s going to be very difficult for us to maintain a broadcasting system if we don’t have a backstop in place.
Senator Cormier: Thank you to both of you.
[Translation]
Senator Miville-Dechêne: I understand, Mr. Danks. However, asking that the CRTC negotiate agreements is ultimately a very major change to Bill C-11. That means a regulatory body becoming involved in negotiations. It’s true that that’s the case in Canada, but we’re talking about foreign companies. That’s my first point.
Ms. Ille, I find it hard to see how we could put into practice the idea of requiring that foreign distribution platforms and the Rokus of the world distribute 25 public service channels. I’m not saying that I disagree with it, but I’m trying to understand how they’ll be chosen. In two years, will it be important to include in that lineup of channels one that offers weather forecasts, for instance, even though people can find weather information just about anywhere? That information is not hard to find.
I get the impression that all this needs to and will evolve. The difficulty is the risk of including all these issues in a very cumbersome reform that, ultimately, won’t work. Listening to you, someone might question whether people will be interested in these platforms. I don’t want to play devil’s advocate, but I’m trying to see how all this will work and I’m having some difficulty.
Ms. Ille: That’s an excellent question, and, as Mr. Danks said, we’re also thinking about it. However, it’s important to ensure that small independent broadcasters have a place, regardless of their mission or mandate. We’re all different, and we complement each other.
There will likely be new players in the future, and I hope so. We’ll see what they offer. Will they meet a national need or will they operate on a more local or regional scale? Will they merit being on a digital platform? The CRTC must still be able to make these decisions. In theory, it can now require availability.
Indeed, I think more research is needed, but there must be that flexibility. The CRTC must have that authority and that flexibility.
Senator Miville-Dechêne: Thank you.
[English]
Senator Dasko: My question is for Ms. Morin and is about the topic of algorithms. In your comments, you spoke strongly in support of the ability to change and affect algorithms with respect to the topic of discoverability and how that might be achieved, but there’s tremendous pushback against using algorithms. The bill itself says the CRTC cannot require that, although I do agree that the chair of the CRTC muddied the waters a little bit when he came to our committee a few weeks ago when we started in June. The bill says that it cannot be done.
So I wanted to ask you about the possibility of using non-algorithmic solutions to deal with discoverability. Do you feel that discoverability can be achieved through that means rather than through affecting algorithms?
Ms. Morin: I would have to come back to you with a deeper understanding of what kinds of non-algorithmic solutions could be put forward.
[Translation]
I can commit to getting back to you with a more informed response on this issue.
[English]
Senator Dasko: Thank you.
Mr. Danks: Senator, I can speak to this a little bit.
I’ll say two things very quickly. Yes, discoverability is about a whole lot more than algorithms. In fact, I think the entire algorithm discussion has hijacked this whole proceeding in a way that makes no sense.
Senator Dasko: Yes, it has.
Mr. Danks: Discoverability is about being treated fairly; what I believe in are net-neutrality principles. When we deliver to those platforms, we provide them with a huge amount of metadata that describe our programs that they use and link other programs to. I am against preferences of content that are provided through algorithms.
I think the attempt to say that this is all about algorithms or that they’re important is just wrong. If you serve up consumers’ recommendations, they’re just not going to click on the links. I honestly think this whole discussion is such a waste of time, because even if it’s tried, I don’t believe it would work. I’ve said the following to the CRTC people and others: Stop talking about that, because it’s never going to work.
By the way, the YouTubers are not going to be crushed. People will just not click on those links. It’s not even as intrusive as putting an ad in front of somebody.
I think we have to be careful that the algorithms and the platforms don’t show preference for their own content or other people’s content. That’s always something we’ve seen of abuse with the broadcasting system where people pay to put their stuff in front of other people.
We should have a fair net-neutrality system in terms of what people want to watch on the platforms.
I simply think it won’t work, and it’s taken up way too much time. That’s my comment for the day.
Senator Dasko: I agree.
The Chair: We only really have a minute left, colleagues, and I want to get a quick question in before we wrap up.
To the CEO of APTN, we all clearly agree that your organization is an important one and that Indigenous voices and cultures have to be promoted and protected. Did the government consult your organization on Bill C-11 before they went forward?
Ms. Ille: They consulted with us. When it was Bill C-10, we were consulted. We’ve been having a lot of meetings with Canadian Heritage with our concerns and comments. We weren’t, unfortunately, invited to the Bill C-11 hearing at the House of Commons’ Canadian Heritage Committee, but we’re happy to be here today.
The Chair: Thank you for being with us. Colleagues, thank you all for being succinct in your questions. I want to thank all of the panellists who were also succinct and clear in their responses; we got a lot of questions and answers taken care of in a short 45 minutes. Thank you very much for being with us.
Honourable senators, for our second panel, we have before us, from the Canadian Ethnocultural Media Coalition, Aldo Di Felice, Co-Founder and President, TLN Media Group Inc., who is with us by video conference; and Madeline Ziniak, Co-Founder and Chair, Canadian Ethnic Media Association, also with us by video conference. We also have before us the Black Screen Office, represented by their Executive Director Joan Jenkinson; and from the Racial Equity Media Collective, Lisa Valencia-Svensson, Managing Director.
Welcome, and thank you for joining us virtually this morning. We will begin with opening remarks from Ms. Ziniak, followed by Ms. Jenkinson, and then from the Racial Equity Media Collective.
Madeline Ziniak, Co-Founder and Chair, Canadian Ethnic Media Association, Canadian Ethnocultural Media Coalition: [Belorussian and Russian spoken]. Good morning. That was hello and good morning in my native language and mother tongue, which is Belorussian and Russian.
Good morning, senators. Thank you very much for hearing us today. Beside me is my colleague Aldo Di Felice, President and Managing Partner of TLN Media Group. We are co-founders of the Canadian Ethnocultural Media Coalition, or CEMC.
The CEMC was formed early last year in response to the previous version of Bill C-11. Our initial group has expanded and now includes organizations with membership and activity across the country — the most active independent ethnic media content producers and publishers, including broadcasters.
Aldo Di Felice, Co-Founder and President, TLN Media Group Inc., Canadian Ethnocultural Media Coalition: We came together as CEMC specifically to advocate for better inclusion of diverse communities and ethnic programming in our laws and industry support programs. We have sought full membership in our broadcast system because we believe that all four pillars of Canadian society should be recognized, reflected, supported and fully participate in our broadcasting system. That includes Canada’s French and English founding cultures; Indigenous communities; and the diverse ethnic minority communities of Canada, including racialized communities.
Ms. Ziniak: Until now, multicultural content creation and Canadian ethnic-owned broadcast media have been marginalized and under-supported by both regulators and cultural institutions such as the Canada Media Fund and Telefilm Canada. But we are happy to report today that the current version of the bill now includes specific new provisions in section 3(3) which have the potential to finally welcome Canadian multicultural content creation and broadcasting from the fringes and into the mainstream of Canadian society.
Mr. Di Felice: As the first nation in the world to adopt an official multiculturalism policy a half-century ago, this is long overdue, and this is a country with a tremendous appetite for Canadian multicultural content. Our nation has never been more ethnoculturally and multilingually diverse. More than 11 million Canadians — that’s 1 in 3 — report themselves to be ethnic Canadians. And 1 in 4 Canadians, or 9.4 million Canadians in total, speak at least one language besides English or French.
Ms. Ziniak: Multicultural Canada’s appetite for information, opinion and entertainment of all kinds cannot be satisfied only by foreign channels. Foreign channels and content are not focused on Canada; and when they are, they invariably serve their own cultural, political and economic interests in diasporas living in this country. We must as a nation ensure that Canadian information, opportunities, values and our immigrant stories are made available in our broadcasting system. Nation building can only happen if our own voices are heard.
Mr. Di Felice: Finally, we wish to underline that while the language contained in these clauses promises real possibilities for improvement and expansion of Canadian-made ethnic content creation and distribution, that promise will need to be fulfilled. So when the bill becomes law, the implementation of the priorities embodied in these clauses should not be delayed. Specifically, we hope that the initial written direction from Canadian Heritage to the CRTC fast-tracks a review and update of the now 24-year-old CRTC ethnic broadcasting policy.
Furthermore, Canadian Heritage, in its oversight of industry support institutions such as Telefilm Canada and the CMF, should ensure these organizations similarly address these legislative priorities in their programs and services. In closing, we should point out that, like OUTtv and APTN, who just appeared before you, several of our members are also members of the Independent Broadcast Group, or IBG. We agree with the IBG’s submission to this committee and support the amendments it has tabled to grant the CRTC the ability to ensure the distribution of Canadian services in an online world.
Ms. Ziniak: Thank you for allowing us to appear today. We welcome your questions.
The Chair: Thank you.
Joan Jenkinson, Executive Director, Black Screen Office: Good morning. I am the executive director of the Black Screen Office, or BSO, a non-partisan advocacy association whose mission is to make Canada’s screen industries equitable and free of anti-Black racism and to empower Black Canadians working within the screen industries to thrive and share their stories.
The Black Screen Office was founded in the fall of 2020 in response to the growing awareness by Canadians of the need to take action to fight anti-Black racism wherever it exists. We agree with many of our colleagues in the industry that it is past time to modernize the Broadcasting Act and to ensure that all players who work within the Canadian broadcasting system, who compete for Canadian audiences and earn revenues from it should also contribute to it. A level playing field ensures that as audiences migrate to new platforms, their ability to choose well-funded and high-quality Canadian content is maintained.
The Broadcasting Act has always included language that referenced the need for the Canadian broadcasting system to reflect the “multicultural and multiracial nature of Canadian society.” However, that was not enough to ensure that Black Canadians, Indigenous people and people of colour have equitable access to programming that reflects their lives and the ability to create that programming.
The amendments in Bill C-11 that refer to the Canadian broadcasting system reflecting racialized Canadians will go further to prioritize greater equity and inclusion in the Canadian broadcasting system.
We welcome these references in Bill C-11 to serve the needs and interests of racialized Canadians. But wherever the word “racialized” is used, we ask that it be replaced with the phrase “Black and other racialized.” We request this amendment as a recognition that there has historically been greater oppression of Black Canadians and greater barriers to inclusion than with other racialized Canadians.
For example, in a 2019 Statistics Canada survey, 45% of Black Canadians expressed that they had experienced discrimination in the past five years compared to 27% for other visible minorities. This discrimination can play itself out in education, healthcare, employment, housing and, yes, the Canadian screen industries.
Lumping Black Canadians in with all other racialized Canadians poses the risk that policy and regulation will not consider the specific needs and challenges of Black communities. Consequently, at the Canadian Heritage Committee, the BSO proposed that all 10 references to “racialized” be amended to read, “Black and other racialized.” For reasons unknown, the Canadian Heritage Committee chose to amend 4 of the 10 references. Unfortunately, this random approach to improving the legislation leaves it open to challenges in interpretation should it be passed in this way.
There may not be a clear direction to the CRTC to enact policy and regulation that would target Canadian content for Black audiences and made by Black talent. This, in turn, could lead to legal challenges as stakeholders argue whether particular circumstances lead to addressing the specific needs of Black Canadians or whether they are to be combined with all other racialized Canadians. Black Canadians have access to content coming from the U.S. and the U.K. that is created by Black screenwriters, directors and producers, but that content does not reflect the Canadian Black experience. This is important.
Canadian Black communities are incredibly more diverse than American Black communities. With limited exceptions — such as the sitcom “’Da Kink in My Hair,” which is about a Caribbean-Canadian hair salon, and the drama “Diggstown,” about Black Nova Scotian lawyers — the many stories of these various communities are not being told.
Where are the stories about Haitians in Quebec, the Africans in Lethbridge, Alberta — one of the fastest-growing Black communities in Canada, by the way — or just everyday Black Canadians living their lives in romantic comedies, sitcoms, sci-fi shows, kids’ shows and documentaries? Arguments have been made that YouTube and TikTok offer greater opportunities and fewer barriers for Black and other racialized talent.
Many talented Black and other racialized creators will tell you that these platforms are their training grounds, and often they develop their skills and prove their talents on these platforms, but many seek to migrate to streamers and broadcasters, where they can reach more mainstream audiences with predictable revenues.
Appropriate CRTC regulation can ensure that Black Canadians and Canadians of all backgrounds have the choice to watch Canadian content that reflects Black Canadian experiences, and Black talent can have the opportunities to create that content.
We, therefore, respectfully request that the Senate propose to the House of Commons that the balance of six references to “racialized” in Bill C-11 be amended to read, “Black and racialized.” We will be pleased to provide a detailed list of these sections that require amendments in our written submission.
Thank you for your time. I look forward to your questions.
The Chair: Thank you.
Lisa Valencia-Svensson, Managing Director, Racial Equity Media Collective: Thank you. Good morning, chair, deputy chair and members of the committee. My name is Lisa Valencia-Svensson. I am the managing director of the Racial Equity Media Collective, or REMC. Founded in 2019, we are a national, not-for-profit organization committed to equity for BIPOC — Black, Indigenous and people of colour — creators in Canada’s film, television and digital media industries.
Our mission is to remove barriers to access and increase the production, export and sustainability of BIPOC content and BIPOC-led production companies. We are very grateful for the invitation to present to you today on Bill C-11.
The REMC welcomes the government’s efforts to place a priority on equity and inclusion in the updated Broadcasting Act. We made a submission in spring 2022 to the House of Commons Standing Committee on Canadian Heritage on Bill C-11, which was co-signed by 18 other organizations working in our sector, including the Indigenous Screen Office, and the Black Screen Office, from whom you have just heard. Our submission was later made to this committee as well.
We were particularly pleased to see two of our own proposed language amendments to Bill C-11 adopted unanimously in June 2022 by the House of Commons standing committee. These language amendments clarify the policy intent to provide employment and programming opportunities for Black and racialized communities in Canada.
Yet the REMC remains concerned that good intentions are not enough. Our other proposed amendments that would have put in place key markers for a system of accountability to ensure the government’s equity and inclusion objectives are met were, unfortunately, not included in the bill.
We would, therefore, appreciate this Senate committee making the clear recommendation that the act be accompanied by strong government directives from the Department of Canadian Heritage that will accomplish four specific goals: one, to ensure the collection of race-based data in consultation with BIPOC communities; two, to require that the commission regularly report to ministers on progress towards meeting the equity and inclusion objectives of the act; three, that senior equity officers are installed in major institutions — such as the Department of Canadian Heritage and the CRTC — who are responsible for the monitoring and evaluation of the data; and, four, that there are regular consultations with Black and racialized communities on the creation of equity and inclusion targets and benchmarks in order to mark progress.
In addition to our request for a strong direction for government directives, there are many other organizations and associations in Canada in our sector for which programming diversity is thankfully also an important policy objective. It is the participation of many as opposed to very few in our Canadian content creation that more effectively provides a framework for inclusion and representation in Canadian programming, specifically for Black, Indigenous and racialized voices, along with all other under-represented voices.
Canadian independent producers reflect who we are as Canadians. They broadcast the diversity of voices and increase the number of under-represented voices in our system as companies — both large and small — from communities across the country are involved in the creative production process; their contributions must be identified and upheld. Programming diversity is best served by a Broadcasting Act that specifically emphasizes the significant contribution, therefore, of Canadian independent producers.
The REMC would also like to draw your attention to a persistent imbalance in the bill, which concerns the requirement to use Canadian creative talent and Canadian independent producers. Like other organizations who have already made submissions to you, including the Directors Guild of Canada, ACTRA, Canadian Media Producers Association, the L’Association québécoise de la production médiatique, along with the Coalition for the Diversity of Cultural Expressions, we cannot see a valid reason to establish different requirements for domestic broadcasters and foreign streamers in subsections 3(1)(f) and 3(1)(f.1). REMC, therefore, urges this Senate committee to adopt a joint amendment to 3(1)(f), and to strike subsection 3(1)(f.1), which runs contrary to the spirit of the act.
The REMC also supports the Black Screen Office’s proposal that all uses of the term “racialized” in the act should, indeed, be amended to “Black and racialized” for the very important reasons that Ms. Jenkinson provided in her presentation right before ours.
To reiterate, the REMC urges this Senate committee to make a strong recommendation to the government that the act be accompanied by clear government directives that focus on putting in place a system of accountability which will then ensure the full implementation of the equity and inclusion objectives of the act.
I thank you for your time and am happy to answer any questions you may have.
The Chair: Thank you.
Senator Wells: Thank you to our witnesses for giving us this information today. I appreciate the work that you do and the work that’s gone into the preparation for this committee.
I have a question for Ms. Valencia-Svensson. In your brief to the House of Commons Canadian Heritage Committee on Bill C-11 you made a number of recommendations, including the mandatory collection of race-based data by broadcasters and funders that is accessible by the BIPOC community and all Canadians to ensure that equity in this sector is measurable. You will recall that.
Are you concerned about the privacy implications of such mandatory data collection, and how confident are you that the broadcasters can manage responsibly that information and still maintain privacy?
Ms. Valencia-Svensson: Absolutely. I am a private individual as well, so I would be as concerned as anybody about the privacy implications of data collection. I think we are all across the board. But I think that even if we are worried about those privacy concerns, we don’t not collect data. We try to figure out how to collect data very effectively, with adequate measures put in place, both technologically and in terms of system design, so that data can remain private.
There are other jurisdictions in the world, namely in Australia and in the U.K., where robust data collection systems are already up and running in the screen sectors of those respective countries, but privacy has really been built into the very design of the system so that there are no issues any more. Certainly, our organization is currently involved in doing research into what it would take to really have a robust national data collection system in our sector that would be collecting race-based and other data, and we will be thinking through, together with partners and advisers, how to make sure that the Privacy Act requirements in this country are upheld in the design of such a system. Thank you very much. It is a very important question on all of our minds.
Senator Wells: Thank you.
[Translation]
Senator Cormier: Last week, in their appearance before our committee, three associations of independent producers argued in favour of bringing back subparagraph 3(1)(i)(v) as it was before the amendment adopted by the House of Commons. That section read as follows, and I quote:
(i) the programming provided by the Canadian broadcasting system should
(v) include a significant contribution from the Canadian independent production sector;
Given that several independent production companies provide a voice to Black and racialized communities, how do you feel about that amendment? I’d like to note that the amendment adopted by the House of Commons states the following, and I quote:
(v) include the greatest possible contribution from the Canadian production sector, whether it is independent or affiliated with or owned by a broadcasting undertaking;
My question is for our three witnesses.
[English]
Ms. Valencia-Svensson: I know that the AQPM spoke on that. We have been in touch with them to understand their concerns around that section. It is a section that we are less familiar with ourselves, but we understand the concerns of the AQPM and I’m sure the other organizations. Anything that will reduce the possibility that the Canadian independent production sector will be able to play an important role and continue to be funded and commissioned and have their programs acquired by the Canadian screen sector will be harmful, not only to the Canadian independent production sector as whole, but certainly to all of the groups that each of our specific organizations is representing.
So there is a great danger. To my understanding, the entire purpose of having the CRTC and having legislation like the Broadcasting Act in the first place is to protect Canadian cultural identity, including all the myriad identities within that. The best way to do that is to have a robust, independent production sector that is making its own decisions and is best able to harness all the broad range of voices in our country. The more that we whittle away at the ability of the Canadian independent production sector as a whole to be strong and to grow, the more we whittle away at the ability for under-represented voices, such as those that all of us today are representing, to grow our own voices within that production sector, the more that our entire country is at risk of losing our cultural identities. I think that’s a huge, core thing to be very concerned about with this bill.
Anything in this bill that will help strengthen the Canadian independent production community is something that we should all be pushing for very hard. I hope that wasn’t too long.
Mr. Di Felice: If I may, senator, I would add to Ms. Valencia-Svensson’s answer. When it comes to ethnic content production and broadcasting, independent producers and independent broadcasters face much the same challenges. We live in a highly consolidated broadcast industry. In many ways, this bill is seen by some as protecting Canada’s biggest media players from the world’s biggest media players. And there is, I think, a focus on not forgetting about the independent sectors, whether it is independent content producers in the mainstream, or in ethnic media; whether it is independent broadcasters, mainstream independent broadcasters, ethnic independent broadcasters — they are all feeling the squeeze as a result of consolidation, both globally and nationally.
There must be room in the system for a diversity of voices, which means that they can’t all be owned by the same three or four players either nationally or globally. Any provisions that ensure that level of diversity by including independent invoices — including Black, racialized, BIPOC and ethnocultural minorities — in a country where one in three Canadians do not identify as coming from anglo or francophone cultures — one in three Canadians identifies as ethnic — are important so that independent voices can be heard. We agree completely with the concept of promoting independent voices whether as broadcasters or producers.
Senator Simons: My first question is for Mr. Di Felice and Ms. Ziniak. Just before you spoke, we heard from Brad Danks from OUTtv who spoke very eloquently about the issue of convincing the CRTC to negotiate, if not mandatory carriage, then carriage agreements with the online stations that curate channels, rather than showing their own content. This would be something, I guess, akin to the carriage deal that OMNI has now through subsection 9(1)(h) of the Broadcasting Act. Is that something that you would support over or instead of the kind of algorithmic twiddling that has been suggested by the CRTC?
Mr. Di Felice: If I may, I wouldn’t characterize what Mr. Danks was saying as saying that the CRTC should impose 9(1)(h) obligations —
Senator Simons: No, no, I didn’t mean to say that.
Mr. Di Felice: I think the basic concept is pretty simple. It is to give the CRTC the same authority over online aggregators as over traditional BDUs — broadcast distribution undertakings — basically, the platforms that carry channels and content.
It’s a simple concept of ensuring that they at least have the authority to ensure that channels and content are carried on fair terms. How they exercise that authority will be up to them, based on a track record of having exercised it fairly responsibly over the decades.
When it comes to ethnic content, they would have the same authority. That’s why we’re totally supportive of the Independent Broadcast Group — APTN and OUTtv are members; TLN Media Group is a member of the Independent Broadcast Group; Ethnic Channels Group, which is a member of our coalition, is also a member of the Independent Broadcast Group. There are a number of independent broadcasters, ethnic and non-ethnic, who are supporting that same simple concept: to give the CRTC authority in the online world that they have in the traditional broadcast world.
As Mr. Danks so clearly described, it’s with respect to online aggregators of channels. Those online aggregators might be global companies. They are also Canadian-based companies that are aggregating channels in an online environment. It’s a critical missing link, and how that authority is exercised will depend primarily on the CRTC making those decisions.
Ms. Ziniak: It would be a useful tool to ensure a level playing field for the independent producer base, both multilingually, ethically and otherwise.
Senator Simons: I want to turn things around. I’ve heard from people who are concerned that if Bill C-11 is passed, it will inhibit smaller international streaming services that serve ethnocultural communities from entering the Canadian market. If you’re a small Punjabi or Tagalog or other streaming service, you might not be able to meet the standards that Bill C-11 sets for international streamers to contribute to Canadian programming.
Are you concerned, as people who also serve that market, that ethnocultural groups in Canada could be prejudiced by Bill C-11 if streaming services that cater to that audience are inhibited from coming into this marketplace?
Mr. Di Felice: First of all, streaming services that come into this country that are pirate services is one of the issues.
Senator Simons: I’m not talking about pirate services. Obviously, pirate services are, by their nature, not regulated.
I’m talking about a company that might want to serve a Canadian market. If the CRTC says, “If you’re an international streamer, you have to do this, this, this and this,” they’re going to say, “Never mind. We’ll take our services elsewhere.”
Ms. Ziniak: Of utmost importance is to be able to have a vehicle for Canadian reflection. I think that’s more important — having the reality and the values sent forward with Canadian multicultural services and channels.
To flip that, I would say that what we’re looking at historically is a wonderful opportunity to emancipate the voices in Canada, which is even more necessary now than it ever has been, for communities to be reflected, represented and their leadership platformed.
Senator Dasko: My question is to Mr. Di Felice and Ms. Ziniak. The amendments you were seeking you were actually able to achieve over in the House of Commons, which is terrific. Congratulations for that. I want to explore with you what you think the impact will be of the Bill C-11 amendments that you achieved on multicultural and multilingual programming. Do you expect an increase in production for multilingual and multicultural programming? How is that going to happen? Where is it going to come from? How did the changes to the bill facilitate that?
Mr. Di Felice: Maybe we’ll share this answer. It’s important, as far as we’re concerned, for creators, broadcasters and consumers of ethnic media that these provisions have been included in the current version of the bill. Under the current act, there are limited references to Canada’s multicultural and multiracial nature, and the emphasis under the current act is on ensuring programming serves the needs of those Canadians, and that the Canadian broadcasting system provides employment opportunities for them. It does not specify that Canadians from those communities should be the ones producing the programs or operating the broadcasting services that deliver those programs.
The language in subsections 3(1)(d)(iii.6) and (iii.7) specifically addresses this issue. It’s full participation in the Canadian broadcast system, both as creators of relevant programs in all languages and as the owner of broadcasting services. That’s a win not only for producers and broadcasters, but for all Canadians who consume ethnic media.
We’ve talked about the importance of Canadian-based ethnic media. For too long — over the last 15 years — the focus of regulatory policies in the ethnic media space has been to increase the number of foreign services available. That’s generally come at the expense of Canadian-based services.
We think that this sets the proper redirection and an emphasis on Canadian-made ethnic content. In the same way that we don’t say to English-speaking or French-speaking audiences, “Hey, there’s plenty of programming coming from the States or from the U.K. or other English-speaking countries,” or, “There is plenty of French programming coming from foreign French-speaking countries. You should be happy with that,” we shouldn’t be saying that to multilingual audiences in Canada.
Senator Dasko: I wonder if you could tell me where the money is going to come from for production. I’d be very interested in that.
Mr. Di Felice: First of all, I think the Online Streaming Act has promised there will be a levelling of the playing field in terms of contributions of online services to Canadian production funds, so the funds themselves will grow. Then the question becomes: How are those funds allocated?
Traditionally, there is zero or a completely symbolic allocation to diverse language programming in Canada. For example, the Canada Media Fund, which is the only program that I know of that has a specific program to invest in third-language programs, only devotes about 1.5% of all Canada Media Fund funding to those programs. It’s a competitive process that covers all languages in Canada, and by necessity, the programs that get produced are low-budget programs. It just contributes to the systemic ghettoization of this kind of programming.
So the money will come from the contributions of the participants in the system. That system has been enlarged from the traditional broadcast system to include the online system. The participants contribute in the same way that broadcasters contribute to the system, by virtue of their investments in Canadian content programming.
Ms. Ziniak: We’re hopeful that this kind of new-source funding will be commensurate to the ethnic population in Canada. I think this is certainly a tool that would be helpful in enhancing, developing and evolving the many voices in this country.
Senator Dasko: Thank you.
Senator Miville-Dechêne: This is a question for the three of you, and it comes out of listening to many actors who are asking for what you are asking.
I’m wondering if you see any difficulty with what is on the table, which is, first, to grant the CRTC the power to force carriage terms and impose, in a way, listening quotas for Canadian content. Not only listening quotas, but imposing maybe sub-quotas for every ethnic group and for the BIPOC community. I realize that is very important content, but it becomes a very complicated system, and I’m wondering if that’s what Canadians want.
I realize this is a difficult question. I’m just trying to see, further down, how we can implement what you’re asking for.
Ms. Jenkinson: Canadians want to see themselves reflected for who they are, and whether they’re a small community or a large community, Canadians should have the right to see themselves reflected. There are many ways that can happen. It can happen with small services like TikTok and YouTube where content creators can have a place to hone their skills and to develop their craft in making content. But we don’t want to be relegated to those platforms. We want to be able to create mainstream content and to be able to generate content from those sources.
So it shouldn’t be a sense that we are the problem that has to be fixed. We are very much a part of the fabric of Canadian society, and we need to work together to ensure that all our voices are heard.
Ms. Valencia-Svensson: Since the CRTC was founded in 1968, I think Canada has decided for ourselves that we want to put priorities other than financial and profit into our screen sector, and that’s why the CRTC was established to create rules and regulations for what content is shared with ourselves, and why. And I think the sheer reality is that the streamers, no matter where they’re based, are motivated by profit, and some of our own broadcasters are as well. So how do we combine the profit motive with our other desires as Canadians to strengthen our own voices, strengthen our own storytelling to each other and also to share that with audiences outside of our country?
We’re going to need the CRTC to continue to play its role in the marketplace. Otherwise, our voices will be drowned. Our organization itself doesn’t know the details of these specific parts of the bill, but I think the overall focus or concern that we’re going to lose our ability to make sure Canadian voices and all the diversity within stays strong in the face of tremendous international marketplace and for-profit pressure is crucial.
I think this bill provides us a crucial opportunity to keep Canadian culture and Canadian cultural systems and structures strong and also nimble in the face of all these threats, because ultimately, Bill C-11 is trying to protect us as people, not just protect bottom lines.
Mr. Di Felice: The CRTC has never imposed quotas on consumers, so I think the idea that the CRTC is creating compulsory listening or compulsory viewing is a non-starter. That’s not what is happening, and that’s not what is being asked for. What the CRTC is able to do is to support content and services by making them available, by making them discoverable and by making them affordable. And I think that’s what consumers want. They want choice in high-quality services that are easily available at favourable prices.
That’s all we’re talking about — giving the CRTC the authority to do that on new platforms in the same way they do it already on traditional broadcasting systems, as opposed to any kind of imposition on consumers to actually consume any content. Consumers want choice, and unfortunately, choice is being limited right now.
Senator Loffreda: Thank you to all our panellists for being here. My question is for Mr. Aldo Di Felice and Ms. Ziniak of the Canadian Ethnocultural Media Coalition. As mentioned, the CRTC’s ethnic broadcasting policy is now 24 years old. How critical is it, what would updating that policy involve and how can it become a benefit to Canadians? Can you expand on that?
Ms. Ziniak: I think it will certainly ensure, structurally and in policy, the opportunity for multilingual media to evolve and develop in this country. The ethnic policy review happened in 1999. People continued immigrating to Canada based on the world environment. And I think having information in one’s language of comfort is crucial in building a healthy Canadian citizenry in this country. So the ethnic policy review will be a tool that will enshrine the opportunities for Canadians of multicultural, multilingual and ethnocultural backgrounds, and it will serve to emancipate and be able to provide information and reflection for new Canadians and second- and third-generation Canadians.
Mr. Di Felice: If I can step back for a moment, we talk about this 1999 ethnic broadcasting policy as if it’s actually in place and meaningful. It’s completely irrelevant. In 1999, there were no online services, and the policy itself only dealt with the idea of putting ethnic programs on conventional television and radio stations. It didn’t even talk about the specific ethnic services that are dedicated to specific ethnic communities in Canada. It didn’t talk about digital media, because the first wave of digital services didn’t happen until two years later, in 2001. So there is no ethnic policy in Canada, which is so strange for a country that has a multiculturalism policy, officially, that is past the half-century mark.
Instead, what we have is a history, because I’ve been there since 1998, so I saw the ethnic broadcasting policy get tabled and issued. We have a patchwork of decisions since 1999 by the CRTC reacting ad hoc to various crises in ethnic broadcasting, and as a tagalong to various general mainstream policies regarding broadcasting in Canada.
What has happened is those successive series of ad hoc decisions by the CRTC, none of which involved a real public process to step back and take a look at how this country should actually serve its multilingual and ethnic audiences, is that patchwork of decisions has resulted in a diminishment of ethnic programming in Canada.
The CRTC, on its website, touts the fact that they have licensed more than 100 — I think maybe closer to 200 — ethnic services in Canada. But licensing a service does not create that service. The operators of these licensed services in many cases don’t even get off the ground because the critical portion of a service is carriage and distribution, and the CRTC’s current policy really does not guarantee a single ethnic service, except one that is owned by a major telecom, with carriage on the system.
So even the services that we run are by no means guaranteed to be carried. You may have heard of situations where services, whether ethnic or not, complain to the CRTC because carriers often threaten to simply drop a service if the terms of carriage aren’t to their liking — even services that are already carried.
So expanding the availability of services, expanding their discoverability so that people are not necessarily forced to buy a big package in order to get the service they really want and expanding the affordability of those services are all concepts that would be explored in a review of the 1999 ethnic broadcasting policy, which, unfortunately, the CRTC has not put on the front burner for one reason or another, usually because they’re dealing with other crises. Ethnic broadcasting and ethnic content creation — that entire sector has been generally ignored.
We hope, now, with this new language, and we encourage the Senate to encourage the government to make as part of that initial direction to the CRTC the implementation of the priorities embodied in the clauses we’re talking about — essentially, reviewing their ethnic broadcasting policy, allowing all of the players, the consumers, content creators and broadcasters alike to make submissions in order to create a new ethnic broadcasting policy that is actually effective going forward.
The Chair: Thank you. I can assure you, we’re always trying to encourage the government in one way or another.
I have a question for anyone on the panel who wants to tackle it. Canadian creators are among the world’s top exporters of culture content, particularly on YouTube. This includes Indigenous, BIPOC and other marginalized Canadians, and all artists across the country. These voices aren’t being silenced by the internet, they’re actually being exposed to tens of millions of people around the world.
Aren’t you concerned that the efforts of Bill C-11 to protect legacy broadcasters and to actually limit the audience of these voices is not helpful? What would happen if other jurisdictions in the world followed the lead of Bill C-11 and tried to regulate in the same sort of way that we’re regulating? What would happen in terms of the potential audience exposure that our Canadian artists currently have at their fingertips?
Ms. Jenkinson: When it comes to exporting content, yes, we do export a lot of content on small digital platforms. But one thing to keep in mind is that the percentage of those who generate large audiences is very small, and most of the content creators on these smaller platforms are making less than $10,000. What we want is that those should not be considered the only sources of content, but that we look at the shows that people want to watch: crime dramas, love stories and a range of higher-budget content.
Most countries, I think probably all countries, have some kind of limitation on what comes into their country. Canada is not unique in that respect. Yes, we are a great exporter of content. I don’t think anyone is looking at making any limits on that. I think what we’re concerned about is making sure that the system is set up so that we have an equal opportunity to make that content, and that people from racialized and Black communities have the opportunity to have the funding access so we can make content from our communities that will have the opportunity to travel internationally.
Ms. Valencia-Svensson: The REMC supports everything that Ms. Jenkinson just said, absolutely. I don’t mean to add a note of cynicism here, but if I may, I’ve heard a lot of the streamers speak with concern about Bill C-11 for many months now, and I find it interesting that these very large corporations, not based in Canada for the most part, are suddenly professing a great concern for the elevation of under-represented voices. Normally they’re not out there professing any concern for the elevation of our voices and our opportunities at all. I observe their messaging where they’re saying that all these under-represented voices are going to lose opportunities. They’re using that messaging because they know that, in this day and age, that message will get everyone’s attention. Is it really a true message?
We at the REMC don’t think so for reasons Ms. Jenkinson has just explained. We want all the under-represented voices to have access to all parts of the system. We don’t think Bill C-11 is going to have such a detrimental effect. We think streamers have whipped up that message to senators, MPs and members of the public because what they really want is to protect their bottom line, and they don’t want to have to contribute financially and monetarily into our system. They don’t want to say that outright, so they’re saying this instead. That’s my response that does have some cynicism to it, but it makes sense if you analyze what their core motivation might be.
The Chair: We haven’t been hearing from streamers who are talking about losing the grand audience for the artists; it’s the artists themselves who want to make sure they have the independent capacity to put their productions out there through the various new platforms that are out there.
Ms. Valencia-Svensson: And they will. I think what has been happening is that a lot of streamers have been lining those artists up to speak as well, if you look at what is going on. But there are many other creators, like Black Screen Office and the Racial Equity Media Collective, and all the organizations that presented to you today could also line up.
The Chair: Thank you.
Senator Clement: Thank you to all the witnesses for your comments about updating policy. Creating directives and race-based data collection are all very relevant.
My question is for Ms. Jenkinson. It’s good to see you. I have to tell you, for most of my professional career, I have felt lonely, alone in all spaces, and sadly, that continues for me. However, my nieces, thankfully, wear the kink in their hair much more confidently than I ever did, so things are better.
I want you to lean into the comments you made about not lumping in Black Canadians and recognizing that this is not a monolith. The reaction of Black Canadians to the death of Her Majesty is very interesting and also represents some of that diversity. I wonder if you could lean into why you think the government agreed on 6 of the 10 amendments. How would we move forward around that?
Ms. Jenkinson: The simple thing first: We just want 10 out of 10 instead of 6 out of 10, because it doesn’t make any sense. What we’re concerned with is, in the history of Canadian television before 2020, there had only been four Black series made by and about Black people on mainstream Canadian television. That just says there is a massive problem and a huge gap. When it comes to feature films, it’s taken between 9 and 13 years for a Black filmmaker to make a second film. There’s so much to be done and so little content.
Again, we can’t rely on American programming to fill the gap. The Canadian experience is very different from the American experience, and we want to ensure that our voices are heard and our stories are told from a Canadian perspective.
Senator Clement: Why do you think that 10 of 10 would mean a better interpretation? You talked about interpreting, and how that might weaken interpretation of the act.
Ms. Jenkinson: It just simply doesn’t make any sense to only have the references in some places and not in other places. We want to make sure that there’s no ambiguity when it comes to setting regulations and policies where you can fall back on the fact that it doesn’t say Black and racialized in every place, so in this instance, we’re going to lump them together, and in another instance, if your argument is strong enough, we may not.
Senator Clement: Thank you, Ms. Jenkinson.
The Chair: Thank you to our panel for being with us today and sharing their views. It’s appreciated, and we look forward to continuing our deliberations on this study.
(The committee adjourned.)