Therefore, honourable senators, in amendment, I move:

That Bill C-11, as amended, be not now read a third time, but that it be further amended in clause 4 (as amended by the decision of the Senate on December 14, 2022), on page 10, by adding the following after line 32:

“(4) The regulations shall not prescribe a program of a broadcasting undertaking that generates annual revenues of less than $10 million.”.

Would Senator Manning accept a question?

Yes.

I am a bit surprised by your proposal because the reason Bill C-11 is so vague on some very specific issues is that the internet is constantly changing. The $10-million threshold is not particularly low, but we have no way of knowing how the internet will change in the future and who will become a major broadcaster in the Canadian context.

How did you come up with this $10-million threshold? Is it really a good idea to include this factor in the bill rather than allow the market to determine it? Again, you will say this is a matter for the CRTC, which already has a lot to rule on.

Thank you very much.

I don’t pretend to be an expert in all of this, senator, but I am an avid listener, and I listened to many people who came before the committee.

You’re a bit surprised that I came forward with this; I’m a bit surprised that we’re not talking about any threshold. To go back to Oorbee Roy, the single mom who was facing all kinds of financial issues, found a home on the internet through skateboarding videos and took herself out of poverty, she told us. She established a home for her two children — I believe it was two children, if memory serves me correctly — thanks to the opportunities she had through that process.

I don’t think for a moment that Oorbee Roy is going to become a national broadcaster. I don’t think for a moment that the CBC or CTV are going to have to worry about Oorbee Roy.

What I do worry about is people such as Oorbee Roy who found a way to take herself out of poverty through the internet. She is in great fear now; not only her, but several others came forward to our committee and expressed great fear over the fact that, through the regulatory process, now they are going to have an immense amount of — trying to create that Canadian content, what meets Canadian content, what the final decision of the CRTC is going to be on what is Canadian content, as well as that she will be driven away from that opportunity.

When I looked at Bill C-11 in the beginning, and read through it first — before any amendments were made — I believed then that the purpose of the bill was to create an environment where people such as Oorbee Roy could thrive any place in this world. I come from a community in southern Newfoundland of 300 people. Somebody could make a living in that community through this process.

What I’m concerned about is that the last thing you want in anybody’s face is too much government. I believe that, unless we put a threshold in place, we are putting a roadblock up to people like Oorbee Roy, and many others, who would have the opportunity to not only create something, but to make a living for themselves and their families.

We need to have a threshold; is it $10 million? The question mark is we started at $150 million. We went to 100, 50, 25 — now we are down to 10. Now do we go down to a $20 bill before we agree on something? No; I don’t know. The bottom line is, without any threshold, there is no limit. Oorbee Roy is going to be on the same level as a national broadcaster. To me, that doesn’t make sense.

Senator Manning, you are out of time. Are you requesting an additional five minutes?

If the Senate gives me the opportunity, I have all the time in the world, Your Honour.

Is it agreed, honourable senators?

Thank you for your answer, Senator Manning. I am trying to reconcile your amendment with the fact that Senator Simons and I removed anything to do with revenue from the amendment that we proposed and that was adopted.

When one reads the amendment, it is very clear that this woman, Ms. Roy, who roller skates and supports her family with her content, will not be affected in any way by Bill C-11. This amendment already guarantees that small content creators will be protected.

I am trying to understand how your amendment would be useful. Basically, what you are saying is that there is a chance that our amendment will be rejected by the government and so yours should be adopted.

I would like to know why your amendment is more likely to be accepted by the government than ours.

Of all the things I will try to do in my lifetime, especially on this side, I’m not going to try to answer for what the government is going to do. I am afraid to do that half of the time, but I will leave that for another day.

What I’m concerned about is that, as I said in my remarks, your amendment may not be adopted. Yes, with all good intentions, you and Senator Simons put it forward. Certainly, it was a good amendment at the time — but, the fact is, it may not be adopted.

I am not saying that the government would adopt my amendment. We don’t know if the government will accept any amendment. We have sent back legislation from this chamber to the government, and they have not accepted any amendments that we have put forward at any time. The bottom line is that if we have one amendment, or ten, they may not accept any. The more that we have — at least that gives them some thought to put some thought into it.

The bottom line is that we’re — “protecting” may not be the right word to use — giving those people that we have called, in our discussions, “small players in the field” — giving them an opportunity to, at least, be able to stand on their own two feet, and be able to do what they are doing without interference. I believe the whole purpose of Bill C-11 was to create an avenue to do that.

The reason I put forward the amendment is because I believe that some type of threshold is needed. If we talk about no revenues, as I said, the government may not accept that, but they might be open to accepting a threshold; I don’t know.

I can guarantee you my amendment was put forward with the best intentions to protect those that we have brought before us. In my comments, I mentioned half a dozen of those who came before us and expressed this major valid concern they all have. I’m trying to find a way to address that concern. This is my way. I hope my colleagues support my amendment.

Senator Manning, one of the concerns I have with our regulatory burden in Canada — there is so much that has been embedded in legislation that, absolutely, we know how slowly we get new legislation through this chamber.

When you embed something like that into legislation, like a certain threshold — whether or not this is needed or required in any way; I can’t speak to that — but, certainly, I’m trying to move away from that.

Have you considered options as it relates to having this threshold that you think is so important given as advice to government in regulations? The reality is, if we put a specific number into the legislation, that’s almost impossible to change. This is 30 years in the making — this change that we are seeing right now. Is that something you have considered? Is that something you have worked on and considered — any alternatives other than embedding in legislation?

I understand the concern you have. My concern is the absence of anything there to protect those people.

Having it embedded in legislation — yes, I know it takes 30 years to change something; but the fact is that, without something there, the people are not protected on the other end, in my view and in my humble opinion.

I would be more comfortable having something in legislation that people can refer to that becomes the law of the land than the fact that we have nothing there to show any protection to them.

Thank you, Senator Manning, for another attempt to bring some sanity to a very insane piece of legislation.

Honourable colleagues, how many times have we heard — time and time again, when concerns have been raised by digital content creators, by digital-first creators, in this country — “Trust us”? Trust us. User-generated content is not included in this bill.

How many times have we heard the minister, officials, government officials and sponsors of the bill come and say, “Trust us”?

“Absolutely. Platforms are in; users are out.”

At every turn, government MPs in the House, the government in the Senate committee, they have done everything they can to not allow for any thresholds, to not allow crystal black and white statements that clarify for the hundreds of thousands — if not millions — of Canadians who, today, are using the digital web as an opportunity to promote Canadian culture, and who have created outstanding businesses; they are looking at this, and they are saying that what we have created is at the fate — right now — of the CRTC without any clarity in the bill.

Senator Deacon, you are absolutely right: We need to get rid of red tape in this country. We need to make things less complicated. The best way to do that is to entrench those protections in the bill before it gets to the regulatory stage.

You think we are cutting through regulations by sending this problem to the CRTC, and letting them consult for a year and come back to us with a list of regulations — without guidelines being clarified here and now in order to alleviate the concerns of generated content producers in this country? I’m sorry. I’m not going to leave it to a bunch of appointed individuals who, at the end of the day — as you’ll read in the Broadcasting Act — take their guidelines, ultimately, from the government. They have complete power. We have heard at our committee, over many months, the concerns of stakeholders — both from those in favour of and those against the bill — that the Canadian Radio‑television and Telecommunications Commission, or CRTC, has an atrocious record when it comes to consultation and transparency. We also heard from many stakeholders, including large broadcasters, that in order to navigate through the bureaucracy of the CRTC, you need deep pockets and a lot of lawyers on your payroll.

So, yes, Senator Dawson, I am very excited and very stressed about this bill, more than I have been in the past, because I’m concerned about the hundreds of thousands of Canadians and digital first creators in this country who came and pleaded with us for some sanity in the legislation, and they have asked to be excluded. At the end of the day, I don’t believe Canadian culture is in peril nor at risk. I think our committee has seen in their study over the last few months that Canadian culture is booming like never before. Actors are busier than ever before. Producers are busier than ever before, as are directors, singers, songwriters and extras. Every region of the country is benefiting over the last decade; we have seen it. Movie production companies and documentary producers are coming in and using Canada as a place and using Canada’s talent and art to propel their work around the world.

The digital web has given us a market that we never dreamed of 30 or 40 years ago when we were looking at this archaic Broadcasting Act and protecting the broadcasting industry. Billions of people around the world are jumping onto YouTube, Twitter, Facebook and TikTok to look at our Indigenous talent, to look at our francophone talent and they are thriving like never before. With all due respect, I don’t buy the argument that we need to protect them.

Do you know who this bill is protecting? It’s only protecting one group of individuals, and that is the group involved in the old broadcasting model, which we all know has failed. In 2023, they are bankrupt. Bell Media is bankrupt. CBC is bankrupt. They are not making money because they are outdated. Canadians are not going to those platforms for their information anymore. Only old guys like me — old boomers — are sitting there watching the news on TV at night. My 26- and 23-year-old children walk by and laugh at me because they are streaming. Yes, they are on their iPads and their phones. I’m starting to realize they are getting information quicker than I am. That’s who I relied on in order to draw my conclusions in regard to this bill.

The traditional broadcasters can do somersaults and try to convince the government to throw more money into the Canada Media Fund and into Telefilm Canada. Change your model because, clearly, I don’t see any streamers rushing to become broadcasters, but we see every broadcasting platform going digital over the last 10 years. The CBC has spent millions trying to go digital — CTV and all of them — because that’s the way of the future.

We need to encourage Canadians and young Canadians to take advantage of that opportunity and to continue to grow, not to hinder them by basically saying to the CRTC, “Create an even playing field.” I use this analogy. We have right now the digital world — a Lamborghini — and we have the traditional broadcasting world — a horse and cart. We want to create an equal race. Well, unless you’re going to give the horse and cart a 5-mile lead in a 5.1-mile race, I’m still betting on the Lamborghini.

We have to start being realistic when we say it’s time to start reviewing our Broadcasting Act. We must understand the realities that we face today.

Senator Deacon mentioned that we must protect our industry and make sure that foreign investors don’t come in and somehow hinder the marketplace. It’s because of Netflix, Disney Plus and those foreign investors that we’ve had billions of dollars coming into Canada and that our industry artists are busier than ever before. They are working. There is a shortage. They are making money. They are paying taxes to the Canada Revenue Agency. By the way, all of these streamers, bloggers and independent content producers are paying a ton of taxes to the Canada Media Fund. Under Bill C-11, who will benefit from that? Even to this day, who benefits? The traditional broadcasters dive into that money, continuing to produce shows at taxpayers’ expense — shows that no one is watching. Do I need to pull out the ratings to let you know that, for example, no one is watching CBC anymore? Yet, the whole point of this bill is that someone is making money and someone isn’t, and for the guys who are not, there is a reason for it. Someone decided they need to be propped up. Well, prop them up all you want, but if the problem is your business model, you will die a slow, painful death.

In our committee, thanks to Senator Klyne, we heard from Indigenous witnesses. He fought hard right to the end to make sure they were heard, and they said it best. Under these new platforms, Indigenous culture from our country is being spread to places like France and South America — to all corners of the world, like never before. They pleaded to make sure that the CRTC and any element of Bill C-11 — or whatever it morphs into, because we don’t know what those regulations will be like — not stop them. They said, word for word, “Please, stay out of our way because we are being very successful.”

Why would we put in peril every Canadian who is on these platforms right now, enjoying the liberty to express themselves? By the way, we are dominating. We’re punching above our weight. Every single witness who came before our committee made it evidently clear that Canada is punching above its weight when you look at our footprint in terms of arts and culture around the world.

We are a small market. We need the world. We are not a trading country only in lumber, in agricultural goods and in energy. We are a trading country in culture as well. As Senator Richards appropriately said, there are so many people who can buy books in Canada, but there are billions of people around the world who can buy the works of Canadian authors that they like.

Now, one of the biggest problems with this bill is the scope. We must broaden our scope. We have to think large as Canadians. I think I heard Senator Miville-Dechêne say, in speaking about her amendment, that it would address thresholds and it would, for example, compel the CRTC — according to her amendment — to consider digital first creators. Correct? And I think one of the words in her amendment is “consider.”

With all due respect, colleagues, if I try to amend the bill and I’m telling the CRTC that we recognize weaknesses that we want them to address in their deliberations and their regulations and the amendment says, “I want the CRTC to consider A, B, C,” well, “consider” is not very prescriptive. We all know how the CRTC works. They’re going to consider it all right. They will hold hearings and they will report as usual. It’s not very binding.

We have fought very hard to put forward amendments with some teeth to protect content producers who are small players, who are living off their small stream of revenue — independent, Canadian content producers. A $10-million threshold is the bare minimum to provide some protection in a concrete way and to entrench it in the bill so that the CRTC has no manoeuvrability to avoid accepting that reality.

My only conclusion on why there’s such pushback from the government is that, at the end of the day and with all due respect, I just don’t believe when government says that, “Platforms are in, and independent digital content producers are out.” I don’t believe them; I’m sorry. If you won’t accept a threshold of $100 million, $50 million, $10 million, why would I believe you are going to accept any threshold on goodwill? How many of you will buy a product and have a contract in which everything is highlighted except the delivery date? How many of you would accept that?

“Can you just put the delivery date?”

“Oh, no, trust us. You will get it by February 1.”

“Well, yes, but can we just put it in the contract?”

“No, no, no. Just trust us.”

Please, colleagues, at a bare minimum, can we please accept this reasonable amendment that will give a little bit of hope to those young Canadians across this country who are looking for some clarity and some security so they can continue to promote their cultures and their businesses in a fair, free market way? Thank you, colleagues.

Honourable senators, I want to thank Senator Manning for the intention behind this amendment. However, I believe, if I may say so, that the senator may be conflating two separate issues with Bill C-11. The first has to do with user-generated content created by small social media producers. I share the concern of Senator Manning and Senator Housakos that clause 4.2.2 of the bill, as originally written, was an exception to the exception that had the potential to scope in small YouTubers and small TikTok artists because the criteria was whether it generated revenues directly or indirectly. It could have been a very small amount of revenue, or it could have been revenue that was created not from advertising or subscription but from sponsorship or from selling products.

Because I very much shared the concern voiced by Senator Housakos and Senator Manning, Senator Miville-Dechêne and I worked very hard to craft an amendment that surgically removed all user-generated content of this type from the bill.

As I explained in my earlier speech, the amended bill you have before you fixes this problem by removing all revenue thresholds or mentions of revenue and scoping the bill specifically to include commercial content that has that unique identifier number that is only given to commercially released music. If I sing a song on YouTube — and I shall spare you an example — that would in no way have a unique identifier number except perhaps a user-content warning. So it would scope in that commercially produced music released by large commercial labels and scope in, for example, a sports specialty channel that rebroadcasts a sports game on Facebook. Those would be the only people who are now covered by the bill before you.

I understand what Senator Housakos is saying. We have no guarantee that the folks in the other place will accept our amended bill. I would say to you that the strongest way to send a message to the government that this amendment is absolutely essential is for us to be united as a chamber in saying that this is the correct surgical solution. There is no political blowback. We are not doing this for partisan reasons. We are not doing this to be obstreperous. We are doing this because we listened to 138 witnesses, and we came up with a workable compromise.

Now we come to the issue of thresholds.

I have been taking the time, while Senator Housakos was speaking, to review the testimony we heard at the Transport Committee. The threshold issue, as I recall and as my quick read through the transcript supports, never had anything to do with social media users. What it did have to do with was small streaming services.

This remains a concern because the question is that it is fine that Netflix, Disney, Amazon Prime and Apple TV have huge revenues, and it is one thing to scope them in. What do you do with a small streaming service from Nigeria that is serving a Nigerian-Canadian diaspora population? What do you do about a small streaming service that is offering audio content in Punjabi? What do you do about a small streaming service serving an ethnocultural community or a community that has very specific interest that does not reach a broad general audience?

That was the threshold question in debate. It was never about social media users because they would never be captured. Even the most extraordinarily successful YouTube vlogger is not going to be making $150 million or $10 million. In fact, if you think about it logically, this could never have included YouTubers because YouTube makes more than $10 million, makes more than $150 million. This amendment would not protect somebody who is uploading content to a platform like YouTube or TikTok. Our amendment to clause 4.2.2, which is in the bill now, does that. This threshold would do nothing to protect them because they are on YouTube and TikTok, which have revenues well over $10 million in Canada.

The question that remains is what we do about those small niche streaming services. I thought long and hard before bringing a threshold amendment myself. When we spoke to the experts, the challenge was how to create a threshold that can stay static in legislation. What I would hope for is the intention behind Senator Manning’s amendment, which is not a bad intention, should be encapsulated in regulation. I want to say here on the record that I think it would be ludicrous for a small international streaming service that serves a niche language audience in Canada, a diverse and multicultural country, to be accidentally captured by legislation that is clearly meant to target the largest behemoth streaming services.

My final concern about the motion that we have before us is a technical one about the clarity of the language. Now that I have the amendment, it says, “regulations shall not prescribe a program of a broadcasting undertaking that generates annual revenues of less than $10 million.”

I’m not clear whether the $10 million refers to the broadcasting undertaking or to the program. There is a huge difference. Is it the intention of this amendment to scope out a program that generates annual revenues of less than $10 million, or a broadcasting undertaking that generates annual revenues of less than $10 million? If it is the former, almost no program would generate that amount. If it is the latter, a service like YouTube or TikTok would easily be scoped in, and then this amendment would do nothing to help those social media users that Senator Manning is rightly concerned about.

Therefore, I would suggest that this is an unclear amendment that does not do what its avowed intention is. I suggest to you also that we need to have further discussion to make sure that small niche streaming services are indeed exempted in regulation.

I thank Senator Manning for bringing forward this amendment, but I will not be able to support it.

Would Senator Simons take a question?

I will.

I totally agree with you that regulating the World Wide Web is very complicated, and, once you embark upon that, it becomes a runaway train. We know what happens when the CRTC takes what seems to be a complicated matter: They like to add multiple layers and make it complicated.

My understanding is that Senator Manning is trying to carve out broadcasting undertakings here. You are absolutely right that $10 million is a lot for small players. It is minuscule for the big players, and we’re going after the big players. I think this amendment attempts to say that we are all in favour of getting the big giant streamers to pay more, but let’s protect the small independent Canadians.

My question is on your and Senator Miville-Dechêne’s amendments, which I did support and I think they are a good step. The problem is that they are not very rigid or prescriptive. It gives the CRTC full latitude at the end of the day.

How hopeful can we be that the amendments as they currently are, with such wide latitude given to the CRTC, have the desired effect?

With respect, Senator Housakos, I don’t think there is a wide latitude. There was in the bill that came to us, but I think, as amended — and I am grateful that you supported the amendment — it is pretty clear. It includes only, at the discretion of the CRTC, pieces of professionally recorded and released music that have that unique international identifier number and things that have been previously broadcast on conventional broadcasting. It is crystal clear at this point, I think, that it absolutely does not include social media users.

More to this point, this amendment doesn’t speak to social media users. This amendment, as I read it, would in no way capture a mom who puts her skateboarding adventures on TikTok, or a comedian who posts his stuff to Twitter, because those platforms make way more than $10 million. This amendment wouldn’t help the people who you are trying to help, whereas the bill, as currently amended, does.

That said, I think it is important that we say on the record that there is a remaining concern about streaming services, because the thresholds were never supposed to be about people giving cooking tips on YouTube. They were supposed to be about how we deal with ethnocultural streaming services that fall below the threshold of the big companies.

Are senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

All those in favour of the motion will please say “yea.”

All those opposed will please say “nay.”

In my opinion, the “nays” have it.

I see two senators rising. Do we have agreement on a bell?

The vote will take place at 6:02 p.m. Call in the senators.