Google has renewed the calls to exclude user generated content from the Online Streaming Act. This through the CRTC consultation.
It really shouldn’t still be something that needed to be asked for at this stage. Yet, after all these years, there is still a push to exclude user generated content from the Online Streaming Act, a bill that wants to copy outdated laws on broadcasting onto the completely different technology that is the internet. It’s an effort that made no sense from the get go, but all calls for even basic levels of common sense seemed to largely fall on deaf ears – to the point where the Canadian government even flatly denied what is black and white published in the new law itself.
By the time the bill reached the senate last year, there was a loud chorus of calls to exclude user generated content. When the senate held hearings, those calls reached a crescendo as digital first creators saw their careers flashing before their very eyes. The problem is that throughout even that process, most lobbyists and government representatives continued to deny what was clear in the bill, claiming that user generated content wasn’t to be regulated. They even insulted an entire generation of content creators by claiming that all they produce is “cat videos”. This resulted in a viral video responding to the ridiculous comments:
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
While lobbyists and government officials regularly denied that user generated content is in the bill – even though it is obviously codified that it is – their actions spoke much more loudly than words. Lobbyist organization, SOCAN, for instance, actively called for the regulation of user generated content, effectively dropping all pretense on what this bill is all about. The government, showing that they only listen to their lobbyist pals, concurred and rejected every fix to Bill C-11. The repeated moves to block all fixes to the legislation made it crystal clear that regulating user generated content is the entire point of the Online Streaming Act. Only the cultural elite in this country should have access to an audience – to be able to express themselves – and everyone else out there are just obstacles that need to be regulated to death.
After the passage of the legislation, digital first creators were in a state of mourning. Now they have to choose between a Canadian audience and a global audience as their platform of choice is about to be meddled with by the CRTC. This with lobbyists continuing to ensure that user generated content is going to face heavy government regulation so that only the cultural elite’s content is the content that is surfaced, overriding the access to audiences digital first creators have been afforded.
While the situation is dismal for digital first creators, they do have a few things going for them. A big one is that unlike the Online News Act where news sources are on the verge of getting wiped off the face of the internet likely by the middle of December, digital first creators will still have access to a partial audience. What’s more, there is still time to enjoy the free and open internet before the CRTC gets their grubby hands on the direction of the algorithms. This is because the CRTC is currently undergoing a consultation about how best to regulate the internet (LOL indeed) under the Online Streaming Act. At absolute earliest, the negative effects of the Online Streaming Act at the end of 2024, more likely 2025.
Last month, the CRTC opened its consultation on fees as it enforces the Online Streaming Act. The consultation has since closed, but it did garner some interesting submissions. One of those submissions is from Google. In their submission, they asked that user generated content be exempt:
12. The above statutory consideration is directly relevant to YouTube: the primary function of a “social media service” is to serve as a platform for the dissemination of user generated content. Broadcasting activities that take place on a “social media service” are driven by commercial partners and individual users, rather than by “top down broadcasting”; such services have no involvement in the creation or production of any programming on their platforms. Thus, the imposition of regulatory requirements to such services will not contribute in a material manner to the implementation of the broadcasting policy set out in subsection 3(1) of the current Broadcasting Act.
13. To address the foregoing considerations, Google supports a revised exemption criteria which would recognize undertakings whose primary function is to serve as a platform for the dissemination of user generated content. The following added exclusion would clarify that the application and scope of the proposed Fee Regulations excludes UGC-related revenues:
Application
Exclusions
2 These Regulations apply to all broadcasting undertakings other than
(a) campus, community, Indigenous or student broadcasting undertakings;
(b) broadcasting undertakings carried on by the Corporation;
(c) broadcasting undertakings carried on by an independent corporation, as defined in section 2 of the Direction to the CRTC (Ineligibility to Hold Broadcasting Licences), that derive none of their revenues from the sale of air time;
(d) online undertakings that are not required to register with the Commission under the Online Undertakings Registration Regulations, as amended from time to time, or that are exempt from the requirement to register with the Commission under a broadcasting order to be made under subsection 9(4) of the Act; and
(e) online undertakings whose primary purpose consists of providing user uploaded content on its platform
14. The above amendment would clarify that revenues from activities outside of the scope of the Act will not be inadvertently included in the calculation of revenues in deriving the fees payable by a broadcasting undertaking.
(emphasis was originally underlined, but bold is better in a web format here as the text is already italics in the blockquote)
None of this should be controversial. It makes no sense to put user generated content into the same category as traditional broadcast TV regulation. By extension, it makes absolutely no sense to put a platform that is primarily focused on user generated content into the same regulations as traditional broadcast TV. The nature of traditional TV stations is vastly different from that of, for instance, YouTube.
As it has been said over and over again, traditional TV broadcasting has limited choice and limited time while the internet has effectively infinite choice and infinite time to work with. As a result, it makes no sense to demand that government designated “Cancon” content must be surfaced a certain percentage of the time. There is no cultural risk where one culture overtakes the other. If you are worried that, for instance, Quebec culture will get drowned out, then the solution is to simply produce more interesting Quebec content and make it available. Afterwards, that content is available for anyone who wants it. This is not rocket science.
Probably one of the most frustrating aspects in all of this is that lobby groups have been demanding that they are the only ones in Canada that deserve an audience – and that any audience that goes to other producers is somehow a failure of the system rather than a failure of the content produced. It’s very wrong to think that if someone views someone elses content, then that automatically means one less audience member for them. This is not the case at all because nothing is stopping that audience member from watching that content at another point in time. This is simply how the internet works.
Nevertheless, there seems to be a persistent thinking that only the cultural elite (that is more of an expert in manipulating regulation than producing content) is entitled to an audience. As such, some actually believe that the system should just bend to their whims and no one else. There is an emphasis on the word “some” here because there are lobbyists that appear more confused as to what the bill actually does. For instance, Blue Ant Media which pushed hard for this bill did say in their senate appearance that they have no problem with “t-shirt sellers”.
This is, indeed, an indication that some lobbyists really have very different platforms in mind when it comes to this legislation. More likely, they are eyeing platforms like Netflix and Spotify rather than YouTube and TikTok. Since most digital first creators that we talk about are generally on YouTube, then this push to surface Canadian content on something like Netflix is not really their fight in the first place.
The major problem in all of this is that it’s not what people think the law should do (which is actually a lot less controversial than it might seem) and what the law actually does (which is a major source of the controversy). Because the law, thanks to Section 4.2, regulates user generated content, that aspect isn’t likely going to change. With the CRTC, the consultation isn’t necessarily about what the law is actually about, but rather, working out the details on how to enforce the law.
The absolute best case scenario at this stage is that the CRTC will look at Section 4.2 and choose not to enforce it on platforms like TikTok and YouTube. I personally think that the CRTC should say that regulating user generated content will do nothing to further the objectives of the Broadcasting Act and, as such, will choose to leave well enough alone. It would be a logical conclusion. I mean, should the CRTC focus its energy in ensuring that things like speculative video’s about The Backrooms is surfaced less often? Probably not. I think it would be a colossal waste of the CRTCs limited time to make sure every query put into YouTube fit a very specific mould when it came to results.
Yet, when you look at actual positions by the CRTC, they are frustratingly wishy washy. As we noted when talking about the CRTC “fact sheet” (which is a very misleading term in this instance), the organization says that user generated content will get left alone, but they want to manipulate the algorithms so that government certified content is more visible. At that point, the regulator might as well have said that they don’t want to regulate user generated content, but instead, they want to regulate user generated content. They are trying to use slippery language to evade controversy while trying to do the very things that caused the controversy in the first place. It’s stupid.
At the end of the day, it is nice still seeing that push to definitively exclude user generated content so digital first creators can actually start to put this nightmare behind them. The problem is that it seems that regulating their content was largely the whole point of the bill in the view of some of the lobbyists and the government itself.
Because of where we are in this process, this very logical ask from Google will likely go nowhere and the only definitive way that has any real shot at reversing this awful situation is through a court challenge. This on the grounds of a violation of freedom of expression (if the CRTC ends up regulating the internet like most people think they will, then this may very well end up being a slam dunk case to finally strike Section 4.2). Hopefully it doesn’t come to that, but that is the direction this is all headed.
Drew Wilson on Twitter: @icecube85 and Facebook.
