Google made an appearance at the Online Streaming Act hearings at the CRTC. They asked for a system that helps the digital ecosystem.
Earlier, we reported on Bells outrageous appearance where they basically demanded that all money must flow to them while also demanding exemptions to regulatory requirements, shirking as much social responsibility as possible in the process. The expectations from them was that the world should bow to their every whim because they should be the ultimate gatekeepers of what content Canadians are allowed to consume. No, that’s not an exaggeration, they really did argue along these lines.
The sad thing is that companies like Bell have a close relationship to the CRTC and the CRTC is really the Canadian poster child for regulatory capture. As a result, the likelihood that they’ll get whatever they want is quite high as well. After all, the system is there to serve corporate interests at the expense of Canadians and it has been this way for a long time.
While the potentially corrupt system stands a good chance at delivering an unfavourable outcome, it doesn’t mean others aren’t there at these hearings. One such entity was YouTube and Google. They also made an appearance and their calls were quite reasonable by comparison. It’s probably why the large media companies simply refused to cover their appearance, but lucky for you, we are actually unbiased and are all too happy to read through what all sides have to say. Their appearance can be found on this transcript, starting at line 1560 (CTRL+F is your friend). Their presentation starts off with this:
1565 YouTube’s mission is to give everyone a voice and show them the world, and we’re incredibly proud that we’ve had the opportunity to connect Canadians to the content they love for over fifteen years, while amplifying diverse voices and perspectives, and exporting Canadian stories to viewers around the globe.
1566 This is a mission that we have never taken lightly. From early on, we saw YouTube become a catalyst for the discovery and growth of many artists, creators, and businesses. With a low barrier to entry, and access to a free‑to‑use platform, Canadian voices like Lilly Singh, Tate McRae, Charlotte Cardin and The Weeknd have gone on to become global superstars.
1567 That’s why we’ve been building the ecosystem for years, in direct and indirect ways. We invest billions of dollars in the platform and underlying infrastructure so that creators can share their content with over two billion viewers in over 100 countries. This comes at no cost to the creator. And with our revenue share and monetization model, creators, artists and music labels can monetize their content, while always maintaining ownership of their IP.
This is a great counterpoint to the defamatory statements by traditional broadcasters who accuse platforms like YouTube for not contributing anything to Canadian culture. The argument that platforms don’t invest a single cent for the Canadian cultural ecosystem really runs into a brick wall with this seemingly innocuous statement. The last note about allowing creators to maintain ownership of their intellectual property was a nice jab at traditional media companies because traditional media companies have a tendancy of demanding full ownership of creators intellectual property. Creators routinely run into problems with sharing what they produced for traditional producers because the companies essentially veto those efforts. Darcy Michael, for instance, ran into this when he tried to share clips from his standup comedy routines onto platforms like YouTube that are now owned by a major corporation.
On this angle, YouTube absolutely does do this in practice. Ownership of intellectual property remains with the creator. Creators are free to monetize their content however they see fit and they don’t have to transfer all of their rights over to YouTube in order to reach a wider audience. What’s more, YouTube does, indeed, lower the barrier to entry where anyone can upload their material onto the platform and find out if their content will be well received with an audience. Creators don’t have to pay for server costs or work out how to set up their own infrastructure. All they need is a free account and they can get to uploading.
Now, with that said, in recent years, the Adsense model on YouTube (and in general for that matter) has been decreasing in returns in recent years. What would have been an economically viable amount of traffic for a website 15 years ago nets you mere pennies by today’s standards. It’s a big reason why major content creators also enter into partnerships with additional sponsors. For a lot of big time creators, most of their revenue ultimately comes from third party sponsorship deals rather than the Adsense models that are built in to YouTube. Still, it is arguably better than nothing at all, though.
YouTube further stated the following:
1568 We now have even more ways for creators to earn and build a business, and we’re always investing in adding new revenue streams, with the goal of being the best place for creators to create. This revenue model has significant impact. Oxford Economics found that last year, YouTube’s creative ecosystem contributed over two billion dollars to Canada’s GDP. Our dedicated on‑the‑ground team of local partner managers offers direct support for creators and artists to grow their business, and programs like our Black Voices Fund Accelerator are offering grants and resources for emerging voices to be heard. Creators like Steph and Den, Golden Gully, and Marianne Plaisance have harnessed the power of YouTube to create content businesses and export their stories to the world.
Moving on, YouTube does exist in an awkward situation with regard to this legislation. That was pointed out with this statement:
1575 We agree with the Commission’s acknowledgment that not all online platforms are the same. Each offers a unique business model and product, but there is a key difference between other services and ours. On YouTube, creators upload the content, and YouTube provides distribution, monetization opportunities, technical infrastructure, transaction and payment systems, marketing support ‑‑ a number of different resources. And what this means in practice is that, as Jeanette mentioned, most content on YouTube is user‑generated content, and provided that content meets our community guidelines, those creators are able to control what they upload and when they want to remove it.
1576 Social media services that provide a platform for user‑generated content do not exercise programming control over that content, and are therefore not subject to the same regulatory regime as broadcasting undertakings. And with this important distinction, we must look at the lines of business where this framework will apply.
1577 The former Minister of Heritage emphasized that this Bill was aimed at “professional” content, such as music from record labels posted on YouTube. There are many different ways that music can be found on YouTube. A record label can upload it to the platform, but individual users can also upload, say, a dance challenge, for example, with the same song. Officials have stated that this content was never intended to be regulated, and this was confirmed in the final Policy Direction, where it was expressly precluded from rulemaking. Accordingly, we believe that only professionally labelled audio‑only music on YouTube that has been broadcast in whole or in significant part on another service should be subject to this framework, and that other uses of that commercial music necessarily fall outside the scope of this exercise.
This brushes up against a very contentious part of the debate. Large traditional media companies see platforms like YouTube as a threat. So, in response, they are pushing for platforms like YouTube to manipulate their algorithms so that their content always wins over “smaller” players like digital first creators. This goes to their push to have a monopoly on what Canadian audiences can and cannot see. They want to control what Canadians can and cannot see. If you have made a small business uploading educational videos, well, too bad, but corporations like Bell want to pay more dividends to their shareholders, so go be creative somewhere else, loser.
Economically, however, this is hugely problematic. Digital first creators have already started building huge companies. In some cases, they employ well over 100 people and are expecting to grow. If YouTube is ordered to shut down access to audiences for anyone, then those companies are under threat practically overnight. They also need access to those audiences and are, unlike traditional producers, actually creating content that people want to consume. The economic and cultural hit would be immeasurable and, frustratingly enough, all in the name of supporting the past at the expense of the future.
From there, Google hit on a major point of their concern which is how best to contribute to the system:
1579 In its Notice, the Commission has noted that one of the key objectives of this new contribution framework is to ensure that online undertakings “participate in the support of Canadian and Indigenous audio and video content.” We want to emphasize that Canadian revenues alone are not the appropriate metric to determine initial contribution levels. Before the base contribution can be established, the Commission needs to consider the unique ways that online undertakings like YouTube already contribute to the success of the Canadian broadcasting system as a whole.
1580 For example, as part of our YouTube Partner Program, creators receive the majority of income from ads displayed on their videos. While other platforms acquire content, and pay out an initial licensing fee, our model generates a sustainable and ongoing source of revenue for content creators.
1581 Specifically in music, our partnerships with major and independent record labels are bearing fruit. Our team works directly with Canadian music labels to support their success on the platform, including through training, marketing efforts, and strategy development. Label earnings from YouTube from content with Canadian International Sound Recording Codes increased by more than 35 percent year‑over‑year from 2020 to 2021. On the music publishing side, our payments to SOCAN increased by more than 50 percent in the same timeframe.
1582 These commercial arrangements contribute to the growth of Canada’s digital creative economy, outside of the contemplated scope of the Commission’s regulatory framework. But a financial outlay is not the only method of contributing to the ecosystem.
1583 In addition to directly compensating creators, as Jeanette mentioned, YouTube has championed various initiatives to support emerging artists, creators, and underrepresented groups in Canada. Through accelerator programs, mentorship, and funding, YouTube is already making meaningful contributions to the policy objectives of the Act, and these have been fulfilled without any regulatory requirements.
1584 A regulatory requirement that imposes an initial base contribution without taking into account these existing contributions, does not acknowledge the significant impact YouTube already makes to its partners and the local broadcasting system. As it stands now, a substantial portion of YouTube’s revenues in Canada are already automatically redirected to rightsholders and content creators. So, relying on a metric that employs gross revenues, without context on how funds are distributed back into Canada’s creative economy, creates a distorted picture of YouTube’s contributions.
This touches on a huge source for concern among some creators and observers out there. What is being asked is that platforms like YouTube jump through a very archaic hoop that says you must contribute “X” amount of dollars to “X” fund no matter what. As Google points out, this demand does not acknowledge the programs that are already in place, the revenue that they share with creators, and other benefits that platforms provide to creators.
If this request to acknowledge other forms of contributions fails to become a reality, then, best case scenario, that money gets pulled out of the pockets of creators and gets redirected towards the traditional corporations who appear in Canadian stock market exchanges. It’s essentially robbing from people who need the money the most and giving it to the people who need it the least. At the same time, it critically undermines the creative ecosystem in Canada in the process. That is bad for everyone involved. It is known that YouTube has provisions in their terms of service that says that government regulations may affect how much revenue is generated by creators. If regulations extract from the YouTube pool, then that money ultimately comes out of creators revenue streams in the end.
YouTube would also touch on a request to revise the definition of Canadian Content (or “Cancon”):
1585 Lastly, a revised definition of a “Canadian program” is a necessary precondition for establishing an equitable contribution framework. If contribution requirements are established without clarity on what constitutes CanCon, it will create regulatory uncertainty, and could contradict the intent of the Final Policy Direction.
1586 We want to preserve the health of the creative economy, and pushing ahead with imposing ongoing financial obligations that do not consider these complexities could jeopardize YouTube’s current support strategy for Canadian artists and creators. A flexible framework, as set out in the Policy Direction, should acknowledge YouTube’s ongoing work in‑market that aligns to the Act’s goals.
This has been another major source of concern for Canadian creators. Some people out there actually believe that if you are Canadian and you create content, that alone counts as “CanCon”. However, that’s not really how the system works when it comes to video content. There’s a very complicated points system that you have to undergo before you count as “Cancon”. For a vast majority of online creators, the long story short is this: you don’t qualify.
What’s more, those pushing for the Online Streaming Act are also calling for the regulations to be tightened, making it even harder to qualify. This is, obviously, the wrong direction to take things as it refutes how the modern world operates. With the internet, anyone can be a creator. That barrier to entry has never been lower. Thanks to the internet as a whole, creators have never had more options to reach an audience and control their careers on their terms. If the goal is to promote Canadian culture and have Canadian culture thrive all over the world, the last thing you want to do is raise those barriers of entry, sabotaging creators chances of even getting their foot in the door.
As such, it is ironic that Google, even if indirectly, is actually advocating for what’s best for Canadian culture. A definition for Canadian content has to acknowledge where we are as a society, technologically speaking, today. If someone like myself produces content and posts it on YouTube, the system has to have a mechanism that says that, yes, what I produced is technically Canadian content if I wish it to be labelled as such. The system shouldn’t be set up for the sole purpose of denying this fact. It’s basically setting up a class system for Canadian creativity for the internet.
Google then issued these comments:
1588 From the outset of these consultations, we have publicly affirmed our commitment to do more to support Canadian storytellers, but the current system for traditional broadcasting services cannot be applied in the same way to social media services. The Commission should not start from the assumption that traditional funds are the appropriate place to direct contributions for media, which is increasingly coming from non‑traditional sources.
1589 Many of the funds cited in the notice were developed under a closed broadcasting system where contributions were made by those who benefited directly from the programming which was ultimately created. It’s important that a new and principled approach be taken so that contributions offer equitable benefit to all creators and contributors, without imposing unnecessary regulatory burdens.
1590 Additionally, eligible funding activities should go beyond merely earmarking funds for the production of Canadian programs, especially where the Commission has yet to settle on what that means in this modern era. There are different ways to support local artists and creators, such as through these marketing campaigns and sponsorships and trainings that we’ve mentioned, and as the government has directed the Commission to consider in the Policy Direction. In our experience, these activities are highly valued by industry partners and have also been an important support for underrepresented communities.
1591 We urge the Commission to focus primarily on contributions and efforts that directly support the creative economy, rather than through intermediaries, and to establish an independent fund to support the needs of the digital creative ecosystem.
I personally ran into this while testing the system out (not a surprise the system failed that test). Last year, the Canada Media Fund (CMF) told Canadian senators that they are there for Canadian creators. They went so far as to tell senators that they are actively seeking out Canadian creators so that they can fund them. So, I put their words to the test and directly contacted the CMF, asking them about whether or not I should apply for funding. To the surprise of no one, the response from the CMF amounted to “f*ck off, loser” after they ignored me.
To compound the point, the CMF in October of this year laid out criteria for how to qualify as an online creator. The requirements were designed to pretty much exclude everyone creating content. To add insult to injury, the governmental organization that is seeking to reap hundreds of millions were only handing out the comparative pocket change of $500,000 for the entire program. It was designed to ensure that no one can take advantage of the offering no matter what. It’s a very anti-internet system designed to pretend to be supporting creators of all shapes and sizes.
Questions and Answers
The vice-chair opened by asking this question:
1596 There is a lot to unpack, because you do a lot of different things in a lot of different ways through different service streams, different means of monetization, and different types of content that you carry.
1597 So, I thought I would maybe start the unpacking where you started your remarks, with a bit of establishing the taxonomy of the content. So, I think there is some content that is clearly user‑generated. My cousin Jimmy can upload a video, and Jimmy is a great guy, but nobody is going to mistake him for a broadcasting undertaking. So, that’s kind of one end of the spectrum.
1598 At the other end of the spectrum, we have content that’s ported over from traditional broadcasting sources, like an HGTV has a channel on YouTube; BritBox has a channel on YouTube. And that, I think, many folks would look at and say, ‘Well, that appears to be broadcasting.’
1599 So, my question is, one, do you see those two things as distinct and requiring distinct treatment? And is there a third category of content that falls in the middle, where folks that are really of the digital world but are nonetheless, you know, high‑end professional content ‑‑ in my house, it’s MrBeast ‑‑ like an xQc, as a Canadian streamer? Are there three categories of content? Are there two categories of content? And how do we treat them differently?
The vice-chair is sort of correct that there is a spectrum because different creators have different levels of resources available. Some creators, like myself, have just themselves and a web cam to work with. Others have whole production houses with teams of people and high end equipment to produce content. There’s a lot of different levels of where creators find themselves in. I think this is where tensions flair as well because traditional producers view themselves as “professional” content whereas any content made outside of the old system is not “professional”. Online creators, understandably, get frustrated because they know full well that they produce professional level quality content and being labelled as “unprofessional” is extremely demeaning.
I think where a lot of people are in this debate is that if you want to wrap traditional broadcasting content in its own set of regulations, by all means, knock yourselves out. It’s when those regulations then start being imposed on the online ecosystem that you start running into problems. Things like stealing audiences from YouTubers and shifting those audiences artificially to the traditional broadcasting content strikes at the heart of the concern for Canadian creators in this debate for obvious reasons.
A part of the problem here lies in the idea of an online creator taking a clip from a traditional broadcast and offering criticisms towards it. Where does that sit in the grand scheme of things? For example, let’s say a lawyer produces a video where they talk about a movie and they are discussing a legal scene (yes, that is a thing). They offer their opinions of whether or not what you see in that movie is realistic in a court room or not. Which category do you place such a video? Is it traditional media or is it user generated content. There will be arguments back and forth on that.
What is strange in all of this is the idea of creating additional categories of producers who happen to have more resources than others in the digital space. So, the person who can only put $50 into a video vs the person that can put $50,000 into a video should somehow be distinct in how regulations should act moving forward. Personally, this is the first time I ever heard of such a suggestion, but my immediate question is what purpose would such a distinction serve? You don’t create sub-categories on content unless you intend on treating one kind of content differently over another. Is this for the purpose of identifying what is and isn’t Canadian content? Is the regulator seeking to surface some forms of content on platforms over another? As far as I’m concerned, the purpose could really be anything with this sort of thing.
Now, credit where credit is due, such a question is actually leaps and bounds more advanced than simply referring to everything being uploaded to social media as nothing more than “cat videos” which was heavily mocked after:
In honour of the CRTC chair again making reference to "Cat Videos" when discussing Digital First Creators in #BillC11. We would like to present this compilation of Government officials dismissing artists and the excellent push back from @Paulatics pic.twitter.com/7FdSNVFF24
— Digital First Canada (@DigitalFirstCan) November 17, 2022
So, the idea that there are those on the regulator side of things that actually acknowledges that there are different kinds of content on platforms like YouTube is an improvement.
What is interesting is that Google had similar thoughts to what I had to say about that:
1600 MR. KRISHNAMURTI: I will speak to this a little bit and my colleague Teague will have more to add. I think our perspective certainly is there are certain types of content that are clearly in scope of this: you know, music being one that we have referenced that is easily delineated; certain categories of full‑length movies and TV that might be purchasable through a rental mechanism that we have.
1601 The middle pool, as you sort of referred to it as the pool of content that’s on YouTube, is certainly much more complicated. One of the reasons I think this Commission recognized in the notice is that there’s an additional phase where those lines need to be drawn, because I think it’s not always clearly identifiable for what purpose an individual has chosen to upload a piece of content, what that content necessarily is, even.
1602 Because, you know, a user can choose to upload a clip of a show, an actor reacting, a blooper behind the scenes, maybe something more. But just because some content has been uploaded as a method of effectively garnering more attention to it and almost as a marketing tool for their subscription service or to bring people into their programming, we don’t believe it is as easy to tell as it sort of may appear from your question.
One of the things that does help make YouTube successful is that using it is extremely simple. YouTube wants as few barriers of entry as humanly possible for creators to use their services. So, this idea of asking 20 questions about their Canadianness would only add friction to this process.
What’s more, this does raise the question of privacy because maybe there are creators out there who would rather not identify themselves as Canadian. That is also a very real thing because, unlike some forms of traditional media content, content producers online are less likely to beat you over the head with the idea that they are Canadian as they are more interested in producing content that is something audiences want to watch. This was also brought up:
1604 MR. ORGEMAN: Yeah, I agree with all of that, obviously. I think that whether it’s cousin Jimmy, and we’re glad he’s a creator and we hope he continues to create, or MrBeast, they’re both, under the policy direction, they’re both social media creators. They’re both users who are uploading content for the purpose of dissemination of ‑‑ likely that’s their purpose of dissemination on YouTube.
1605 We don’t ask users about the purpose of their upload, and we don’t have a technical infrastructure in place with which we could determine that. What we would have to do, then, if we had to determine it is adjust ourselves technically and then place the burden on those creators to identify themselves both at upload and then following upload. We also wouldn’t look into the nature of the content itself and don’t have a way to distinguish those categories.
1606 One of the things that we reference additionally in our submission is that there are some concerns about data privacy that would come if we were required to collect this type of information from every creator.
1607 One of the things that’s I think special about YouTube is that we don’t create barriers based on who you are as a creator. It’s a low barrier to entry. Anyone with a camera or a phone can share their story with the world. And so we’re reticent to say that now, for the first time, we’re going to distinguish between or discriminate between different categories of what the policy directive calls social media creators.
1608 MS. PATELL: I think, you know, that that final point is a really important one to us, that it’s a feature of YouTube that we provide an equal opportunity to all creators, regardless of their size or their stage of development, to kind of compete for the same ‑‑ for a global audience. And so, you know, that HGTV show or clip, more likely, that you’re referencing would be competing with, for example, the Sorry Girls, a Canadian success story of DIY creators who’ve built a business on YouTube.
1609 And I think that that’s the beauty of YouTube is that the audience is able to demonstrate the diversity of their interests of the type of content and the type of productions that they’re interested in consuming, and that those two pieces of content are treated in our systems as the same.
Do It Yourself video’s are, in fact, a big thing on platforms like YouTube. In fact, there is no shortage of stories where people who actually work on home renovation projects look something up on YouTube to figure out something specific that they are not familiar with. This is, of course, very common knowledge that this sort of thing happens. Google, here, is laying out a great case that what they do is allow creators of all shapes and sizes try their hand at this content creation business.
Traditional broadcasters have a heavy hand when it comes to gate keeping. Creating a new program often costs hundreds of thousands, if not millions of dollars, requires a whole team to create, there has to be business cases of how such a program would be successful, and several other hoops such a production has to jump through. At a time prior to the advent of the internet, this does make sense because there is limited time and space to put in a whole new program and broadcasters have to pick and choose which programs to put on the air in an effort to compete with each other in specific time slots.
In the internet era, however, those restrictions simply vanish. Everything is much more on demand by nature (with, of course, the option to stream live as well), the barriers to entry are lower, and by one person watching one thing, it doesn’t mean that another piece of content is diminished in reach necessarily.
A good reason why this is important to establish is because supporters of this law have been largely pushing to put broadcasting rules made for traditional broadcasting onto the internet with little to no regard for how the internet differentiates from traditional television broadcasting. What may make sense for a traditional broadcaster may not actually make sense for an internet platform. For instance, it makes sense that a certain number of hours of Canadian content must go to air because there is only 24 hours in a day would make sense for a traditional broadcaster. However, if you try and apply those same rules on a platform like YouTube, well, such rules make absolutely no sense because consumers can pick and choose which content to watch at any given time. As I’ve said in the past, it’s an exercising in pushing a broadcasting regulation square peg into a round internet hole – it just doesn’t work.
In the next exchange, we see this:
1610 VICE‑CHAIRPERSON SCOTT: Okay, maybe I am struggling a bit, then, to see ‑‑ so you wouldn’t make any distinction between a user‑uploaded video from an individual versus ‑‑ because I know there are clips, but I’ve also seen full programs, the same thing that I can watch on television that I can watch on YouTube. So you don’t distinguish that, track that, consider it to be any different?
1611 MR. KRISHNAMURTI: No. At this stage, we don’t have the technical infrastructure in place to make that distinguish, like to make that distinction between sort of maybe the length of content is ‑‑ we might have on a particular video, but not how it was created or why it was created, just that a particular user chose to upload it to their account and share it in the way that any other video is shared.
1612 MR. NORELL: Okay. I will add a fine point on that. We do have a separate service or it’s part of the service, it’s a ‑‑ basically, it’s a channel run by YouTube, YouTube Movies and Shows, where you can go and buy or rent movies, full‑length content. And that’s run by us. So but it’s very different than user‑generated content, where somebody else is making the decision about what to upload.
It is true that old broadcast programs wind up on YouTube. More often then not, when whole TV episodes get uploaded to YouTube by users, it either gets filtered out by their ContentID system or eventually gets taken down by the DMCA. Usually, such clips don’t last very long on the platform and channels do get copyright strikes for doing so. More often then not, such video’s are uploaded without permission in the first place.
What is an important thing that YouTube brought up is that they also have a video rental service. Film producers and television producers can utilize a premium service where they can rent out video’s for people to watch as well. You can, today, rent Home Alone on YouTube. If we are talking about having regulations strictly apply to the rental or purchase side of YouTube while leaving the rest of the ecosystem alone, I think the debate surrounding this law would be significantly less controversial.
The problem is that what supporters of this new law are pushing for is that all audiences get funnelled towards their content regardless of location and regardless of service. That is where we ultimately run into problems because then we are talking about, say, a Rogers produced program being uploaded to YouTube and demanding that the algorithms are manipulated to heavily favour that production at the expense of the user generated content. This is a very real apprehension because the revolving door at the CRTC between the lobbyist and executive positions is very well known. Not helping matters is the fact that the text of this law doesn’t distinguish between services that focus on user generated content and so-called “professional” content.
What is interesting here is that YouTube actually acknowledges that traditional broadcasters actually post their content on YouTube to compete against user generated content for marketing purposes:
1613 And in a lot of cases, when you look at even professional media companies and how they use YouTube, when you do see short like full episodes of content, it’s done ‑‑ seems to be done more from a marketing perspective where they’re, you know, they’ll put the first episode of the season up with the hopes that people will then go to their broadcast outlet and continue to watch the remainder of the season.
1614 So you know, and therein kind of lies a little bit of the problem, because then you have the challenge of were they intending to act like a broadcaster at that moment? Or were they intending to act as a marketer? Or how were they planning on using the platform? And it makes it especially challenging for us to try to determine like what somebody’s subjective intent was when they actually uploaded the content en masse when you’re talking about, you know, 500 hours of content every minute.
Youtube is absolutely right in this adding another layer of complexity. You have a producer like the CBC uploading their broadcasts onto YouTube for the purpose of reaching audiences on the platform. The Online Streaming Act is less ambiguous about this kind of content in that such content would be classified as “Cancon” and would require platforms to surface such content more frequently than others.
Obviously, this takes us straight back to square one of traditional broadcasters getting preferential treatment over other Canadians. It also highlights the motivation to capture all of YouTube and bring it into the scope of manipulating algorithms under the Act. When the broadcasters themselves are posting their content onto the platform, how should the platform react to such content? Ideally, it’ll just get treated like every other kind of content, but if YouTube does that, then would they be in violation of the Online Streaming Act? This is an extremely good question to ask.
The vice chair then delves further into this topic:
1615 VICE‑CHAIRPERSON SCOTT: Understood.
1616 And maybe that segues nicely into the next topic I wanted to talk about, which is the primary purpose test that you put forward in your submission, which I’ll confess I had been reading to draw a distinction between certain types of content, where clearly social media is not to be excluded. And I thought your argument was that you do have other content that is broadcasting and could be captured, but due to the primary ‑‑ through the application of a primary purpose test, kind of all of your operations would be excluded. Am I misunderstanding the purpose of the primary purpose test?
1617 MR. KRISHNAMURTI: So the primary purpose test that we proposed was directed at understanding that very few businesses operate to only do one thing. And so I think the Commissioner proposed a sort of sole‑purpose test. And our position was simply that because a business like ours is very complicated, there are things we do that are sort of ancillary to the main purpose of the business, which is this distribution of user‑generated content.
1618 And so looking at what the online platform in particular does, if it’s only businesses, subscription, and access content to a particular traditional broadcasting content, that’s one thing. If it’s social media content, that’s very different. And so even if that same service might do a couple of things differently, making sure that you’re drawing the appropriate distinction about where to draw the regulatory lines so that you’re not imposing regulatory obligations asymmetrically around things that are ‑‑ or shouldn’t be regulated in the way that ‑‑ based on sort of the principles we’ve discussed and understood today.
So, what Google is arguing for is that if your purpose is primarily to showcase traditionally made content (ala Netflix), then the regulation can, in fact, be applied to such services. However, if the platform handles user generated content uploaded by the users, then maybe it would be better to just leave it out of the scope of the Online Streaming Act. What Google is arguing is actually in the Canadian governments interest because if the Act isn’t applied to platforms like TikTok, Twitch, and YouTube, you avoid the inevitable constitutional challenge when the government basically mandates that Canadians get censored.
Unfortunately, given the governments history of being belligerent, there’s definitely that possibility that this request get denied, raising the prospect of the Act being highly vulnerable to a constitutional challenge..
The vice chair apparently struggled to figure out where the line should be drawn on what is in the scope of the Act and what shouldn’t be in the scope of the Act. YouTube suggested that things like YouTube Music and their video rental services be in the scope whereas where the user generated content lives via the main Youtube service be left out.
Vice Chair Scott then changed gears and asked about contributions that a platform like YouTube would be required to make. YouTube essentially argued that things like their accelerator programs, their training services and several other programs on offer should count towards what they are contributing to Canadian culture. The ask makes perfect sense given that the revenues generated do come from digital first creators creating original an entertaining content.
It would make sense that the funding and resources go back to those that helped generate that revenue in the first place rather than siphon it off and redirect those funds to traditional broadcasters that may not even contribute a thing towards these creative ecosystems in the first place. It amounts to robbing the kids in their basements with a webcam to pay the traditional players that regularly demonize social media as some sort of monolithic threat to society. Let’s face it: the moment funds are extracted from the creative online ecosystem and placed into funding organizations like the CMF, that money will never make their way back into the hands of Canadian creators that need that funding.
General Thoughts
Contrary to what those hawking the Online Streaming Act would like you to believe, what the large platforms are asking for is to just leave the user generated content alone for reasons that should be obvious. We regularly see supporters of the Act say that platforms are simply wanting to never contribute anything to Canadian culture and that they “don’t want to be regulated”. Yet, I think this appearance by Google paints a very different story. I see a platform here saying that they do contribute to Canadian culture in significant ways. What’s more, the platform is trying to draw a regulatory line between the user generated content and the video purchase or rental services (and music services for that matter).
I found what they are asking for to be highly reasonable. If you are going to require a platform to contribute funding, the idea of making sure that creators on the platform get those supports is highly logical. After all, it’s those digital first creators that are producing that Canadian content and contributing to Canadian culture in that space, so why shouldn’t they have access to those resources?
What’s more, the request to leave user generated content out of the picture is very reasonable. Want to regulate YouTube Music? Fine, go for it. Want to regulate regular YouTube and downrank Canadian content in favour of government certified speech? That’s where we run into a lot of problems – including constitutional ones.
Probably the part that gives me apprehension in all of this is knowing that the CRTC is not well known for doing things for the benefit of ordinary Canadians. I mean, for crying out loud, the regulator couldn’t rubber-stamp the Rogers Shaw merger fast enough which tells you everything you need to know about the regulator on that front. So, there’s a very real threat that the CRTC, despite hearing very reasonable arguments from entities like Google, will just default to doing whatever their corporate handlers tell them to do anyway.
Time will tell on that front for sure, but one thing we do know is that Canadian creators do have time before the regulatory hammer is swung onto their heads. Chances are, they won’t see a difference throughout the year of 2024. So, they do have that going for them. It’s more than what us news sites have where we face the prospect of our careers ending next month with the Online News Act.
Drew Wilson on Twitter: @icecube85 and Facebook.
