Scoping in user generated content has long been the biggest problem of Bill C-11. The Canadian Senate appears to have fixed this.
For the last two years, Bill C-11 (formerly Bill C-10 in the last government) has a myriad of problems associated. The legislation manipulates outcomes of algorithms, it represents a massive international trade dispute magnet, and it compels platforms to pay into a system that digital first creators can never benefit from.
The biggest problem, however, is, of course, the fact that the legislation scopes in user generated content via Section 4.2. While there are small variances in the perspective of why it this is a bad idea, a vast majority basically come to the same conclusions about it – that is this bill does regulate user generated content. Some, such as Dwayne Winseck, point out that the definition of a broadcast would encapsulate a huge swath of human expression that has become a prominent aspect of the internet we know today. Others, such as myself and many other creators, point out the section represents a significant constitutional problem in the area of freedom of expression thanks to the idea that this downranks content produced by Canadian digital first creators in favour of content produced by those in or blessed by the establishment.
Indeed, throughout the hearings at the Senate, the theme of what Section 4.2 does kept cropping up as a major source of anxiety for digital first creators. The situation for people like us was looking so dire, I personally offered a prediction that said that I didn’t honestly think the Senate would end up fixing this legislation. Simply put, I looked at the makeup of the Senate and concluded that, although I could very easily see fixes being proposed, the Liberal Party supporting Senators would come together and vote them all down.
The above scenario wouldn’t be unprecedented. In fact, it would simply repeat what happened at the House of Commons level no less than three times where proposals to fix the legislation and scope out user generated content was continually voted down. So, what I was actually anticipating was history repeating itself at the Canadian Senate. These thoughts, as you can imagine, was hugely unpleasant for myself and was a huge source of stress. It was all so very clear that regulating user generated content was no accident and was, at a very sinister level, entirely the point of the legislation. It would, after all, explain why the government was not budging on this aspect of the bill.
To my overall pleasant surprise, my prediction that the bill won’t be fixed might actually be on the ropes. To be clear, I’m actually thrilled I might be wrong on something. If this holds, it would be the first time I recall being wrong on something since the early days of YouTube where I figured that the bandwidth costs in those days would eventually drive that site into bankruptcy back in the mid to late 2000’s. It came pretty darn close to coming true, but thanks to the acquisition by Google, YouTube would ultimately be saved from such a disastrous fate. As I’ve always said, I am always open to being wrong on something and, in this case, I truly hoped I was wrong on this.
Hope of this is certainly alive. It appears that Section 4.2 of Bill C-11 has not only had a proposed amendment put forward, but it also appears as though it has been passed – something I didn’t think that the vote numbers would ever get. From Michael Geist:
The Senate Standing Committee on Transport and Communications, which has conducted months of hearings on Bill C-11, was clearly convinced that the user content issue needed to be addressed. Last night (hours after the ill-advised addition of age verification to the bill), it agreed on an amendment that, with two key caveats, goes a long way to scoping out user content regulation. The new Section 4.2.2, proposed by Senators Miville-Duchêne and Simons, removes the revenue generation test. Instead, the provision now states:
(2) In making regulations under subsection (1), the Commission shall consider the following matters:
(a) the extent to which a program contains a sound recording that has been assigned a unique identifier under an international standards system;
(b) the fact that the program has been uploaded to an online undertaking that provides a social media service by the owner or the exclusive licensee of the copyright in the sound recording, or an agent of the owner
(c) the fact that the program or a significant part of it has been broadcast by a broadcasting undertaking that
(i) is required to be carried on under a licence, or
(ii) is required to be registered with the Commission but does not provide a social media service.
If you’ll notice, the provision of ‘directly or indirectly generates revenue’ is now gone. What’s more is what is now there actually does target sound recordings – the very thing the government claimed to be after in the first place. After reading this section several times, trying to see how I could possibly misread it, I can’t see how this new version regulates user generated content. Obviously, if someone else reading this can somehow find a way to reasonably interpret this as somehow regulating user generated content, I’m certainly open to finding out. In the absence of hearing about how I somehow missed something, this appears to actually fix the bills biggest problem.
Geist, of course, mentions two caveats here:
This is an elegant solution that appears to meet the government’s goal of maintaining regulatory powers over sound recordings uploaded to Youtube in Bill C-11 with its stated intent of excluding users. If the CRTC were to limit its regulations to these conditions, the provision would appear to address many of the regulatory concerns. This is unquestionably good news, but comes with two caveats.
First, as currently structured, the CRTC is not strictly bound by these conditions. Rather, it is required to “consider” each of these requirements, but it could choose to consider other criteria as well. A better approach would have been to establish an exclusion provision that excluded all content unless the specific criteria are met. That would appear to be the intent of the amendment, but the Commission retains flexibility to say that it “considered” the criteria and chooses to establish new regulations. Another potential safeguard against such an outcome proposed some senators was to limit the provisions on discoverability so that even if the CRTC asserted the power to regulate, the scope of regulation would be limited. The government indicated its opposition to such proposals, which were rejected at committee.
Second, it is by no means certain that the government will support this change. While it passed on division in committee and was the obvious choice of senators seeking a compromise, Senator Dawson, who has been a lead backer of the bill in the Senate, indicated he remained opposed, stating:
The proposed amendment would create loopholes. I’m repeating what Senator Gold said on earlier amendments today, that the amendment would create loopholes for social media platforms to avoid contributing to Canadian culture, which, as you know, is the objective of the bill.
Senator Simons strongly objected to that characterization:
I just wanted to say briefly in response to Senator Dawson’s concern that if you read our amendment, it specifically includes exactly what you were worried about. We have been very surgical with this amendment. This does not eliminate all of 4.2. It scopes it so that it actually does what the government has told us it wants to do. It makes it very clear that social media users are not included. I know, Senator Dawson, you would like us to take the government at its word, but it is that clause about “directly or indirectly generates revenues” that has concerned so many people. Further, the issue is not that we think individual TikTok makers or YouTube makers are going to be asked to contribute to the system. The question was one of whether they would be captured by discoverability, and this amendment, I believe, limits the degree to which those kinds of users are going to be captured by a discoverability paradigm.
Simons is absolutely right and the “surgical” amendment takes everyone’s position at face value: that the government does not want to target users, that creators support a bill that excludes users but includes platforms, and platforms that they are willing to contribute to the Canadian system. It now falls to the government to live up to its word and accept the amendment.
Senator Dawson’s remarks may very well be a sign of things to come. Specifically, the government is very likely to be furious that the legislation was fixed. While they may try to pretend that this fix somehow represents a loophole for platforms, that supposed loophole seems to be based around the false idea that platforms upload the content you see on Youtube when it is, in fact, uploaded by digital first creators.
Indeed, people like Darcy Michael, BrittleStar, Jennifer Valentyne, or Resilient Inuk are not employees of TikTok, YouTube, or any other platform, but rather, independent creators using platforms as a tool to grow their businesses or reach. This has been repeatedly explained to Senators including by Digital First Canada. Of course, it’s a detail that the government is unlikely to care to understand because it complicates some of their talking points about the bill.
Of course, this opens up a rather interesting scenario that I admittedly know very little about. What would happen if the Senate and the House disagree on an amendment in a bill? What happens at that point? For that, I decided to look through some government pages talking about parliamentary procedures (Yes, this is something I haven’t done in years) and I found this page. Under Consideration and Passage by the Senate, I found this:
The Senate follows a legislative process that is very similar, although not the same, to the one in the House of Commons.
In cases where the Senate adopts a Commons bill without amendment, a message is sent to the House of Commons to inform it that the bill has been passed, and royal assent is normally granted shortly thereafter.
If, however, the Senate makes amendments to a bill, it sends a message to the House with the text of the amendments. If the House does not agree with the Senate amendments, it adopts a motion stating the reasons for its disagreement, which it communicates in a message to the Senate. If the Senate wishes the amendments to stand nonetheless, it sends a message back to the House, which then accepts or rejects the proposed changes (in practice, most times the Senate will accept the decision of the House). If an agreement cannot be reached by exchanging messages, the House that has possession of the bill may ask that a conference be held, although this practice has fallen into disuse.
So, that would probably explain why I know so little about the idea of what happens when the House and the Senate disagree on an amendment to a bill. This not only rarely happens, but the idea of an agreement not being reached is pretty much unheard of if this snippet is anything to go by. I personally haven’t heard of both houses coming to an impasse on something before, though I’m not exactly a historian on Canadian government procedures in general.
A supplemental question is whether or not it would actually come to something like that? Honestly, it’s really hard to say either way.
Arguments for all of this coming to a head is that the government on the House of Commons side is very adamant that user generated content should remain in the bill for reasons of, uh, flexibility, and, uh, look over there! (runs out of the room) Obviously, we saw a taste of that with Senator Dawson’s reaction insisting that this whole thing is somehow a loophole for platforms that this is a bad thing for reasons that only really makes sense to him. Further, the government has been fast tracking this bill for the better part of two years. They’ve been shoulder to the wheel trying to ram this bill through at all costs, practically clearing the schedule of everything else at one point to make it happen.
Arguments against this is that between the war on Ukraine, the supply chain shortages, inflation, rising interest rates, and a pile of other issues, the question really is, is this the hill the government really wants to die on? What’s more is that the government has been doing pretty much anything and everything to make sure this massive issue remains as under wraps as possible. For the government on the House of Commons side of things, the fewer people that know about this bill, the better. Having a massive impasse between the House of Commons level and the Senate level would do nothing to keep this more under wraps while the risk of this blowing up even further in the public eye would be very real – depending on where this goes. It’s ultimately all risk and no reward to have these two houses butt heads over this legislation.
The real question is, how far will the Trudeau Liberal government take things now that the core issue of this bill has been, much to their dismay? Honestly, that’s a hard question to answer at this point because we are wandering in uncharted territory from our perspective. At this point, after basically finding out the Senate fixed the biggest problem with the bill, my raw reaction was to say “Holy ****! They fixed the bill!” before grabbing a bucket of popcorn and getting ready for a show. I have no idea where things are going to go, but things are going to get interesting.
While others might have different takes on this, the practical change this means for Freezenet from what we can tell at this stage is that this will allow us to continue to grow our YouTube and expand into social video sharing sites beyond YouTube. If the other bills rain down their own respective pain as expected, the website might be lost in the end, but I can still survive on sites like YouTube and direct even more attention on that side of the operation. Simply put, we might actually survive after the three waves of the governments war on the internet after all! So, excellent stuff there considering how badly everything has been looking for so long.
Obviously, the fight against this bill is far from over. There are still plenty of problems with it, but to the pleasant surprise of myself, the biggest issue was, in fact, fixed. This is, by all accounts I’ve seen, a good news story and it was all made possible thanks to Senator Paula Simons collaborating Senator Julie Meville-Duchene (yes, weirdly enough, the latter is the same senator that added an age verification provision in the bill – something that no one asked for during the Senate hearings on this bill.)
Where do thing head to from here? I honestly don’t know. Might as well strap in and see what happens next at this point because even I’m not sure where things are going to go from here. Hopefully, I remain being wrong on this bill and everyone can continue building up their careers online just like what already happens today.
Drew Wilson on Twitter: @icecube85 and Facebook.
