Honourable senators, I am pleased to stand today to speak at second reading to Bill C-11, which is called “An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts,” otherwise called the “Online Streaming Act.”

This bill has been in the works for some time. Introduced in the Forty-third Parliament as Bill C-10, it’s now back as Bill C-11, with significant changes. Our Standing Senate Committee on Transport and Communications began pre-study work in June, and we returned to this work last week.

One of government’s most important roles is to respond appropriately to technological change. For much of our history, when it came to television and radio broadcasting, entry into the system was guided by something called “spectrum scarcity,” where consumer choices were limited by the technology of the day. The regulator would set conditions, including Canadian content requirements, in return for a broadcasting licence and the ability for a broadcaster to reap advertising revenues. That was and still is the business model of traditional broadcasting.

Does anybody remember the phrase, “a licence to print money”? That phrase was made famous not by the owner of a sports franchise but by the owner of a television broadcasting licence. That person was a Canadian — Roy Thomson, Baron Thomson of Fleet — who famously and notoriously described his new licence to run a television network in Scotland as his licence to print money. That was in 1956. But those profitable enterprises have seen their revenues decline with the rise of the internet, as advertisers flee to the internet platforms, and consumers flee to the vast array of choices available on streaming services and social media.

In its recent report documenting broadcast revenues and viewership in 2021, the Canadian Radio-television and Telecommunications Commission, or CRTC, said that revenues from commercial radio have declined by 31% from 2016 to 2021, and those from conventional television have declined by 15% over the same period.

While television shows a one-year increase from 2020, the long-term trend is downward. Since Canadian content expenditures are tied to broadcast revenues from the Canadian broadcasters, so Canadian production as well has declined from this source.

The government has positioned Bill C-11 as a response to this changing technological and market landscape. And just as governments regulated the cable and satellite technologies in the past — and, remember, in those days, that represented an increase in consumer choice — so now government intends to regulate the new internet services.

The main goal of Bill C-11 is simple: to bring online streaming services, like Netflix, Amazon Prime Video and Spotify, which are now unregulated, under the Broadcasting Act and under CRTC regulation to create a so-called level playing field. These streaming services will be required to contribute to the production of Canadian content and to showcase and exhibit Canadian content. A whole new word, “discoverability,” has been invented to describe this showcasing aspect.

Bill C-11 will require contributions for official language and Indigenous programming, and there is mention of serving the needs and interests of diverse ethnocultural and racialized communities and those from other diverse backgrounds. Indeed, Canadian culture, Canadian expressions and diversity themes are very prominent in the government’s messaging around this bill.

Above all, the CRTC is charged with determining all these requirements and how they will be carried out in a way that is flexible yet predictable, fair, information-based, equitable and informed by consultation. It will be given the tools to collect information from broadcasters, to audit them and to administer penalties.

Now, some critics of the bill argue that the internet itself cannot be regulated, but the internet is already regulated all over the place. In fact, some people claim it’s always been regulated. The real question we have here is whether this is the best way or even a good way to achieve desired goals and not diminish or discourage the great offerings of the new technologies.

Over the past several months, I have observed widespread criticism of Bill C-11 focused on three major themes. The first theme involves the threat to Canadian freedoms from Bill C-11. In hundreds and hundreds of letters I have received — and I’m sure other honourable senators have also received — since the beginning this year, Bill C-11 is seen to be the end of freedom in Canada. Here is one example of a letter:

Dear senator, I am terrified that our wonderful democratic nation is at the brink of banning free speech. I implore you to vote against Bill C-11. It must be defeated if we hope to keep our country democratic.

This was a letter to me from a woman in British Columbia just a few weeks ago.

So many letters and calls have the same message, yet the vast majority of these folks do not articulate how this bill is actually supposed to end democracy. I, for one, do not think the end of Canadian democracy is at hand, at least not from Bill C-11.

A second theme that has gained widespread attention and criticism is focused more specifically on the potential intrusion into viewer or listener choices by direction that will be given to firms to alter their algorithms for the purpose of making Canadian content more visible on platforms.

I would like to make two points here. Bill C-11 states that the CRTC cannot make orders that would require the use of specific algorithms. However, we do need more clarity on this, especially in light of the contradictory comments made to our committee by the CRTC last June. In fact, the CRTC chair, when he came to our committee, very much muddied the waters on this issue of algorithms, unfortunately, for many people. He had many very valuable things to say, but he most certainly muddied the waters on this issue of algorithms.

My second point is that we also need to focus on alternative methods to achieve visibility of Canadian content — that is, methods that are alternatives to algorithms. There has been a lot of time spent on this topic of algorithms; in fact, I think maybe too much time has been spent. Nevertheless, I’m hopeful that our committee can shed some light on this complex issue.

A third theme that is still getting the lion’s share of attention and criticism is the regulation of user content. Now, the minister has repeatedly said that platforms are subject to regulation and that individuals or users themselves are excluded. Bill C-11 does state this. But the bill also includes the so-called exceptions to the exclusions, which allow the regulation of user content in certain situations. Therefore, colleagues, we are back to the same conundrum as when we started, and this vexing and important issue remains on the table.

Other questions have received less attention but are still important. Should the CRTC have so much more power? Can the CRTC successfully carry out all the new responsibilities and tasks assigned to it? Should the CRTC have more direction from Parliament than Bill C-11 now provides? What will be the bill’s impact? What will happen to Canadian content in production into the future? Will the existing broadcasters really be helped by any of this? After all, that is supposed to be one of the main goals. Will creators from diverse backgrounds benefit from this bill? Will new technologies and innovation actually thrive into the future?

There is much for our Senate committee to examine. However, I want to speak very briefly about the process that has accompanied deliberations on Bill C-11 to date.

Let’s look back over a year ago to June 2021 and Bill C-10. That process was a mess. That bill spent four months in committee at the other place, which met 30 times — 12 times with witnesses and 18 times for clause-by-clause consideration, followed by filibustering and a rare imposition of time allocation at committee. So that was a disaster.

With Bill C-11 this year, I consider that the process was actually rather similar, only this time it happened within four weeks instead of four months at the House committee. Meetings with over 50 witnesses were followed by filibustering, closure motions and over 50 amendments passed in one evening on June 15 of this year. Does this sound to you like a thoughtful process? Does this give you confidence in the bill before us?

Clearly, sober second thought is greatly needed. Now, there are many good elements to this bill. In a Nanos Research national poll conducted for The Globe and Mail in May, two thirds of the public said they support the idea that streaming services should financially contribute to creating Canadian content just as Canadian broadcasters do. So we do see that high-level support for the idea of Bill C-11.

Also, Bill C-11 enjoys the support of stakeholders across the arts and culture and broadcasting communities, including many people in the Toronto community where I live. I have to say that a couple of weeks ago, one of the stakeholders told me that he really doesn’t like to mention Toronto very much. But I have no hesitation in talking about my city. My city is a vast, creative community of tremendously successful and creative people, and there are many, many people in my community who support Bill C-11 — organizations like the Society of Composers, Authors and Music Publishers of Canada, the Canadian Independent Music Association, the Directors Guild of Canada, Friends of Canadian Broadcasting, the Canadian Ethnocultural Media Coalition and many of Canada’s major television broadcasters.

But there are many outstanding issues, which I mentioned earlier, and the process in the other place, in my view, was fraught. Colleagues, I look forward to the next several weeks of Senate study and debate, for Bill C-11 will receive the sober second thought it so clearly needs. Thank you.

I rise at second reading of Bill C-11, the Online Streaming Act, which the Standing Senate Committee on Transport and Communications is currently studying. Some 30 witnesses have already been heard.

In the time that I have been a senator, I have never seen a bill elicit such passionate reactions and divergent views.

On the one hand, many representatives of the cultural sector are urging us to pass the bill as written or to strengthen it. On the other, as my colleague Donna Dasko stated, our inboxes are full of form letters from citizens who fear for their freedom of expression and their freedom to listen to and watch whatever they want on the internet.

As for me, I do not believe that Canadians’ rights and freedoms are threatened by this bill. However, I do recognize that in a polarized social and political context, where some people do not hesitate to demonize their opponents and twist their words to whip up their supporters, some words have become radioactive. The word “algorithm” is one of them.

There are also concerns about some grey areas in the bill and the regulations that are to follow.

The more I hear the objections of stakeholders regarding Bill C-11, the more I realize that there are several interrelated debates. It is not just about being for or against the bill, as is the case with simpler legislation.

Bill C-11 is basically an adjustment exercise. It adjusts Canada’s broadcasting policy to bring it in line with the new technological environment.

In the past, music and audiovisual programs were broadcast via radio and traditional television networks that held licences and were subject to many rules, including the well-known quotas. The government was thus able to ensure that our country’s artists and cultural diversity were supported and showcased.

As we know, today, a significant portion of Canadians access music and programs via online platforms, often foreign platforms, that are not subject to any regulations. For the first time last year in Quebec, subscriptions to online platforms exceeded traditional cable subscriptions, with 71% of adult Quebecers having paid subscriptions to online streaming sites. That is a lot. We are seeing the same trend with music, where people are increasingly turning toward streaming platforms on which only 8% of the music listened to by Quebecers is French music.

The result is that our artists are losing visibility and the government no longer has the means of showcasing Canadian culture and content, including that of French and Indigenous people and other minority groups. In the wild west of digital platforms, the biggest players make the rules and, as we know, the biggest players are American companies.

There are two possible ways to deal with this new reality. The first is to do nothing and pretend that, in the internet era, the government has no role to play. The government could stop regulating altogether. The regulatory framework would have to be phased out gradually as the public moves to digital platforms. In the end, within a few years, all programs and music consumed by Canadians would be determined solely by market forces. The problem with this approach is that it means giving up on defending the values of Canada’s cultural identity, to the benefit of the web giants.

Officials from YouTube and TikTok appeared before the committee to reaffirm that the business model that has made them successful is working just fine. Their message was simple. What they call their secret recipe works, as evidenced by the success of Canadian YouTubers and singers.

Beyond these generalities, however, there is little information. What percentage of audiences do these Canadian artists get? How is this distributed between artists, content types and across the country? YouTube doesn’t have any precise statistics to share. In fact, YouTube officials don’t really care where the creators are from, because according to them, we live in a global world, so we should take their word for it and hope for the best.

However, the survival of our francophone culture cannot depend on only one or two successful artists like Charlotte Cardin and Coeur de pirate, whose names we hear over and over. People need to be able to discover and listen to others.

The second option proposed in Bill C-11 is a compromise. It involves bringing new platforms into the Canadian regulatory framework, but not in the same way as traditional broadcasters. The platforms will have to help fund production of Canadian content and will have to showcase Canadian content while continuing to offer a rich and diverse menu of program options. The CRTC will have the complex task of tailoring the rules to each foreign player. At least, that is the promise. I’ll be frank; it will be a mammoth undertaking, and I fear the CRTC will be overwhelmed.

I personally support the broad strokes of Bill C-11. Canadians will retain the best of digital platforms, that is, the freedom to listen to and watch what they want, based on their preferences, while giving our artists a chance to carve out a place for themselves and find their audience in this new broadcasting ecosystem.

However, as is often the case, the devil is in the details. Here are some of the main issues. The bill delegates a lot of power to the CRTC to make the rules for online platforms and implement Canada’s broadcasting and cultural policy. Many of us think it would have been better for the government to give the CRTC its instructions right now. This kind of feels like handing over a blank cheque.

One of the central issues the CRTC will have to consider is Canadian content. How should we define it now? Are some criteria more important than others? Should the focus be on subject matter, artists or intellectual property in productions? It will be up to the CRTC to review this crucial definition.

Much ink has been spilled about discoverability; it has taken up a lot of bandwidth. The term “discoverability” appears only twice in the legislation, which does not provide further details.

How will discoverability work for Canadian content on digital platforms? Is promoting that content without influencing algorithms and viewers’ or listeners’ choices enough? How will new content requirements differ from the old quota system? A lot of questions remain.

For example, at our brief hearings in June, I asked the chair of the CRTC how he would ensure the discoverability of Canadian content without involving the algorithms. He answered that the platforms themselves would have to change their algorithms to achieve the desired result of having Canadian users consume more Canadian music and shows.

As you can imagine, this answer shocked those who were closely following the hearings. For them, it was proof that algorithms must be changed even if the bill states that the CRTC does not have that authority. Under Bill C-11, the CRTC, and I quote, “shall not make an order . . . that would require the use of a specific computer algorithm.”

I believe that the debate on this specific point is so polarized that it is difficult to come to a conclusion. For example, YouTube and TikTok state that, without changing their algorithms, they go to great lengths to promote Canadian creators, whether through subsidies, programs or revenue sharing. They boast about their efforts and the success of certain Canadian artists.

Why are they worried about Bill C-11 when they will be able to choose how to get results in terms of the Canadian music that is listened to? Is it because only algorithms really have the power to influence the habits of the users of these platforms?

The logic of algorithms is simple. The only content suggested to the customer is similar to what they have watched before in order to keep them watching. How then can we hope for minority cultural content, whether it be French or Indigenous, to be automatically recommended to customers in a predominantly anglophone North America? How can we trust the mathematical algorithms to point to the exception rather than the rule?

Another distinction needs to be made. For artists from English Canada, the playing field is global, whereas for French-speaking Quebec artists, the main market is Quebec. These artists create in a beautiful language, but it is a minority language.

By making the algorithms off limits, as the platforms want, are we giving in on the main issue and allowing Canadian culture and artists to be steamrolled by American giants? However, if we tinker with the algorithms, we risk harming the lesser-known artists that we want to support, since they could be downgraded by the existing system if customers do not accept the recommendation in question. It is quite the dilemma.

Personally, I am of the opinion that the foreign players in our market should be responsible for finding innovative solutions so that we can see ourselves in this flood of global content. I understand that they feel rushed and that they do not want to lose users, but let’s remember that Canadian broadcasters are subject to much heavier and rigid regulations regarding Canadian content.

We also have to be mindful not to rely on what other countries are doing. This specific aspect of the bill, in other words the idea of requiring platforms such as Spotify, YouTube and others to showcase Canadian works, is a world first; it has never been done anywhere else. Many have thought about it, but Canada is the first to try. This is uncharted territory.

Another issue that raises debate has to do with social media, YouTube in particular, which offers both content for users to download and commercial content. I believe it is possible to further clarify in the text of this legislation what commercial content is in order to reassure content creators.

Obviously, although the purpose of Bill C-11 is to develop Canadian culture and artistic expression, it has several economic dimensions.

At the heart of these debates are Canadian organizations such as producers, broadcasters and unions. There is a mix of corporate, protectionist and other interests behind the requests to amend the bill.

For example, independent producers want to keep the advantage they’ve had for the past 30 years under the Broadcasting Act. They want to be given priority. On the other hand, broadcasters want their own production companies to be treated as independent businesses.

It’s not necessarily a matter of promoting more or less Canadian content; it’s a matter of promoting certain players and changing the power dynamic. This bickering among the players in Canada ultimately undermines efforts to come together.

Beyond these more specific issues, Bill C-11 also brings out different political, cultural and economic views and sometimes pits them against one another.

As I look at my colleague, Senator Housakos, I can see that division here.

In this new global cultural market in which Canadian creators have access to the entire world but are also competing with the entire world, should we be trying to protect our creators from this competition or finding ways to help them stand out? Is it possible to give our creators, artists and tradespeople a chance without needlessly restricting the Canadian public’s options and preferences?

Clearly, I don’t have all the answers. While I agree that Canada must protect its cultural sovereignty, including francophone culture, my duty is to assess whether this bill can be improved and, if so, how.

My personal belief is still that culture is not just another commodity. It deserves substantial support from governments, particularly in cases of a minority culture, such as French in North America.

I’m extremely concerned about the underlying trends in Quebec, particularly in terms of the music people listen to. We can’t surrender all of our cultural sovereignty and national identity to algorithms and market forces. It would be akin to cultural suicide in the medium term, the result of a voluntary blindness to the reality of the power imbalance that is at play. In that regard, I believe that Bill C-11 has a legitimate political objective.

That said, we need to find compromises and modern solutions that also respond to the desire of Canadians and Quebecers to participate in and consume cultural products from around the world, without unduly limiting their choices. Defending and promoting our distinct identity is more valid and timely than ever, but we can’t expect a return to the past, to a time when the availability of cultural content was strictly controlled.

Our challenge is to strike the right balance.

Thank you.