Senate Hearings on Bill C-11 – A Look at Hearing 19 (Segment One)

The second to last part of our special coverage of the Bill C-11 Senate hearing special has arrived. This covers segment 1 of hearing 19.

We continue our special coverage of the Bill C-11 Senate hearings. This is the first part of hearing 19. As it turns out, this is the last hearing in the entire series, so the of this is near.

For those who are curious, here is the coverage of the previous hearings:

Hearing 1 – Privacy Commissioner and Global Affairs/Justice Department
Hearing 2 – Digital rights organizations and lobby groups (1)
Hearing 3 – Lobby groups (2) and platforms (1)
Hearing 4 – Lobby groups (3) and lobby groups (4)
Hearing 5 – Lobby groups (5) and lobby groups (6)
Hearing 6 – Music Canada / platforms (2) and lobby groups (7)
Hearing 7 – Scholars/researchers (1) and digital first creators (1)
Hearing 8 – Digital first creators (2) / lobby groups (8)
Hearing 9 – Digital first creator (3) / lobby group (9) / platform (3) / Lobby group (10)
Hearing 10 – Record Label / Lobby Groups (11) and Scholars/Researchers (2)
Hearing 11 – Scholars/Researchers (3) and Lobby Groups (12)
Hearing 12 – Scholars/Researchers (3) / Digital First Creators (4)
Hearing 13 – Statistician / Lobbyist (13) / Canada Media Fund / Lobby Groups (14)
Hearing 14 – CNIB / H264 / Lobbyist (15) and Lobby Groups (16)
Hearing 15 – Lobby Groups (17) / Lobby Groups (18)
Hearing 16 – Canadian Taxpayers Federation / Lobbyists (19) / Lobby Groups (20)
Hearing 17 – Indigenous organizations / Digital First Creator (5) / Lobby Group (21)
Hearing 18 – The CRTC (Part 1, Part 1)

This final hearing features the official architect of this whole Bill C-11 nightmare, the Heritage Ministry. This makes up the first segment. This hearing wasn’t as hotly anticipated as the CRTC hearing, but many observers were at the ready to take on a more fact-checking role.

As always, the video we are following can be found on the ParlVu website. Nothing will beat the official transcript or original video in terms of video, however, we are happy to offer our summary and throw in some analysis while we are at it. So, with that, let’s jump into the hearing.

Opening Statement

Heritage Minister, Pablo Rodriguez opened with his statement. He said that the world in which we discover stories has changed considerably and the world continues to change every day. Technology transforms the way we connect with our friends and our family. It transforms the way we create and how we consume our culture. That’s to be expected, but we have to adapt. For decades, as Senators know, the Broadcasting Act has played a crucial role to protect and promote our culture. Today, we have to make sure that it adapts to the current reality. A reality in which technology is influencing what we watch and what we listen more and more.

The world, he continues in English, continues to change every day. So, how do we do this? With C-11, the goal is simple. It’s to promote and protect our culture in the digital age. That’s it. That’s it. (It isn’t. It isn’t.) They want to make sure that Canadian talent can succeed here and abroad (it already is and legislation wasn’t needed for that). Whether it is our actors or singers or independent producers, they want them to continue what they do best and they will support them (and all those digital creators can all go away because this effort is obviously not directed at them).

He continues that he’s heard concerns and we all heard concerns about social media and social media creators and, to be clear, he loves what they do (if that’s true, he wouldn’t be working to destroy their careers). They are amazing, but this bill is not about them (it is). Social media creators can continue create and succeed (assuming those creators don’t plan on getting an audience or making money on their work of course) just as they are doing right now (as long as the bill never comes into force, he would technically be correct, but that’s not what he’s getting at). As he said multiple times when it comes to this bill, the platforms, they’re in, users are out (this is a blatant lie).

This bill, he claims, is simply about platforms contributing their fair share towards their culture (and a lot more). He repeats that since he’s tabled the bill, if you benefit from the system, well, it’s only normal that you contribute to the system. It’s a question of justice, of equity, period (… and when the US threatens trade retaliation citing Article 19.4 of the USMCA in response to this bill, the argument about fairness, well…). Let him explain what he means by that because it goes beyond just words. More and more Canadians are cutting their cable (TV is pretty bad these days). That’s the reality and we are seeing that’s happening more and more. Platforms like Netflix, Spotify, Amazon, Crave, Cube (I think that is what he said in that last item on the list), well, they are making up bigger pieces of the pie all the time. That’s not a bad thing. He’s actually a subscriber to just about all of those. He loves all them, but this time, they don’t have any obligations. So he will repeat it and he thinks they all agree on this, everybody must contribute to our culture.

Rodriguez then switched back to English and continued that this from every side that all agree that our cultural industry is absolutely amazing. Remember, Canada’s strong culture is no accident. We, as Canadians, made that decision. We made that call. We chose to be different from our neighbours to the south (By slapping “Canada” on American TV programs?) and we’re going to protect that difference. We made a choice to protect our culture. We keep making that choice every day.

Why? Because our stories matter, he continued to claim. Because our artists matter. Because our creators matter (then why are you working hard to end their careers?). With C-11, well, we are giving them the chance to succeed in the digital age here in Canada and all around the world (you’re setting them up for failure). We want to make it easier for Canadians to see themselves in what they watch and what they listen to and, as he said from the start, they are open to discussion. They are open to criticism. That’s fine. They’re open to changes (no you are not, you are trying to shut us up), but they are not open to doing nothing because the status quo is not an option.

So, he says, if you benefit from the system, you must contribute to the system. It is that simple. What will C-11 do? It will give more choice to consumers (that is a lie). More choice of music, movies, series, all from your home. More diversity (it does the opposite). Content that is more accessible to everyone and it will bolster production of shows with original languages being French and it will meet the needs of official language minority communities (as long as they are a part of the legacy system). It will uplift indigenous cultures (which is why they went before the committee to say that the legislation is a huge step back for Truth and Reconciliation, got it). He could go on and on.

Rodriguez continued to claim that these updates are needed right now (yeah, the Canadian Charter isn’t going to threaten itself). They are needed for the future of Canadian artists (well, the establishment to continue to exercise their role as gatekeepers of success anyway), broadcasters, producers (unless you are a digital first creator), for the future of our culture as Canadians (Canada’s culture is succeeding at growing now thanks to the internet. The bill threatens this growth.) They are crucial to the economy (it would threaten at least $1.1 billion to the Canadian economy), to a diverse society (the bill would do the opposite), our identity (our identity is fine), crucial to protect who we are (another fabrication. I really don’t know where to begin with that lie).

He said that we have a chance to make history (the government that finishes off freedom of expression in this country would in fact be making history), so let’s do it together (let’s kill Bill C-11).

(Wow, he really made it a mission to lie like never before. Seriously, he lied his butt off. This includes the lie that our culture and identity is at risk of dying, that it will increase customer choice, platforms are in and users are out, and more lies than I can count. I can’t say I’m surprised by this because it was entirely expected given that he lied through pretty much every other part of the debate, why would this appearance be any different. When facts don’t back you up, what other choice do you have in that scenario?)

Questioning the Minister

Senator Michael MacDonald noted that the committee has heard from dozens of digital creators and platforms who said that user generated content will be captured by this bill. As Senator Paula Simons told the CRTC Chair last week, there are all kinds of people with legal advice that advises them to be seriously concerned that they will be captured by this Section. The CRTC Commissioner said that we are not interested in individual content, there is no purpose to regulating it. It would not be in the public interest. It would not contribute to the Canadian broadcasting system. Minister, in light of that, will Rodriguez support an amendment to eliminate the bills application to user generated content?

Rodriguez responded that, first of all, he would say that the bill- it’s quite simple. It’s about platforms. It’s not about users (re-read Section 4.2 (2) then). They thought about that in 2.1 (that only excludes the person, not their content), it’s not about them. They brought back 4.1 (and gutted it). Remember, it was taken out. They brought it back. So, you have to look at it in the way that- social media is out (I have to lie to myself?). Start from the principle that social media is out and- with a few exceptions for commercial content (nice meaningless word salad).

He continued to claim by saying that we can’t look at it that social media is in and who is excluded (we do because that’s exactly how it was drafted) because it is the opposite. They are all out, and only with the exception of commercial content (which, as per the bill, is 90% of all the user generated content today), with the criteria’s that you know (which said that if a URL is associated with the content, then it’s regulated, yeah, I know) would be caught by that. But that- there’s no obligation for the the the the creator. The obligation is only on- to the platform, not the creator (and you wonder why people say you haven’t read your own bill).

Senator MacDonald responded while rubbing his forehead by saying that he didn’t answer his question (don’t blame him for that response. The response he got was pure word salad) so he’ll go on to another one. Why does Rodriguez believe that it is in the greater public interest to elevate these limited exceptions to make them what is the most important to the government instead of giving ordinary Canadian creators the certainty they need – the certainty they require?

Rodriguez responded that they are there to support our creators and, as he said, digital creators- absolutely amazing. They are fascinating. Sometimes, they do a lot of stuff with very little means, but again, it’s not about them in the same way. It’s not about the traditional artists. It’s not about Celine Dion. It’s not about Drake at all. The only people that get obligations are the platforms. Obligations to invest in Canadian culture or obligation to showcase our Canadian culture to give information. But the social media creators, he doesn’t see which obligations they would have.

(Uh, did you see the comments by the CRTC that they should appear before their hearings and ‘stay tuned’ to what the Commission is doing?)

Senator MacDonald said that they see the big issue.

Senator Pamela Wallin said that she thinks we’ll try one more time here (success might be Mission: Impossible given the comments so far in the hearing from the Minister). Twice, the Commissioner of the CRTC has appeared before Senators. The last time with his legal council. Both times they confirmed that user generated content is under the authority of this bill. What they argued was it wouldn’t be in anybodies interest to do it, so, ‘just trust us, we won’t regulate user generated content’. Again, twice they confirmed that they actually have regulatory authority to do that. So, to her colleagues point here, why don’t Rodriguez just propose, if Rodriguez doesn’t like any of the language that Senators might come up with. Why doesn’t Rodriguez propose an amendment that would clarify that, period, full stop, once and for all, speak to the CRTC Commissioner, make it clear, and, perhaps, allow Senators to see the regulations that Rodriguez wants to put forward before all the votes are conducted on all of this bill.

Rodriguez responded, saying that as he said, they are open to discussions, but- he wants to be clear, 4.1 was excluded at the time, right? We under- we listened to our social media creators. We listened to them, we understood their concerns, we brought it back. Right? With the exception of 4.2 which catches only commercial content with the three criterias. That’s it. If he’s a creator, he has no responsibility because of the bill. Only the platforms is- that’s- but that’s a huge difference. We really have to look at it, Senator, from the the the start point where social media is excluded and only the commercial content will be included, but that doesn’t mean obligations for creators, it only means obligations for the platforms.

Senator Wallin said that dozens upon dozens upon dozens of content creators have looked at the three tests that would apply about whether they directly or indirectly generate revenue for themselves or somebody and most of them do. That’s why they are in the business of creating content. They make money. They’re YouTubers. They’re TikTokers. They generate money for somebody, therefore, they are within the fence. The regulatory fence proposed here.

(Senator Wallin is bang on with these comments. In fact, this is precisely what I showcased in my own vlog earlier where I analyzed this very section. The text is actually quite clear that user generated content is in when you put it in the context of how user generated content is displayed these days.)

Rodriguez responded that with all due respect, they are not because there are three criterias that would be taken into consideration by the CRTC. In that case, they are not used to place content in one of the streamers in one of those platforms (the text does not differentiate platforms in this context). For example, if he is looking for Celine Dion, and he types Celine Dion, they will give him similar stuff to her singers, songs, maybe Canadian women, maybe not, but will not get a TikToker doing other stuff. They are no in competition.

(This answer is about as nonsensical as it sounds.)

Senator Wallin said that that’s the discoverability issue. What she’s trying to get at here is they are users, people who create content are reigned by this regulatory bill, the regulations included in this bill we assume because that’s what the language says – because it generates revenue. So, it’s not about finding Celine Dion’s music that’s similar.

Rodriguez responded that the CRTC has to take into consideration the three criteria. Only revenues is not enough (this is false). So, criteria- revenue is the first criteria, and then the second revenue is ‘are you using this content on, for example, YouTube to replace what could have heard on exactly the same thing on Spotify?’. That’s the second one. The third is if there is a code or unique for that song or that content. It has to be the three criteria’s to consider it.

(Rodriguez is absolutely wrong on that. The wording of the section is “the Commission shall consider the following matters”. For him to be correct, the Section would have to read something like “the Commission must measure all of the following matters” or insert an “and” at the end of the first two criteria points. Because there is no “and” between (a) and (b), it’s just a list of separate items that the Commission can consider, not an all or nothing regulatory approach. Further, if it really was an all three in the section, then (3) would be pointless to include.)

Senator Jim Quinn said that he’s going to continue down that stream. He had a different question, but this, he knows, is a very controversial piece of the legislation. He thinks what they are boiling it down to is that Canadians needs to have clarity in their legislation. When Senators talked to the Commissioner last week (Part 1, Part 2) and the question to him was ‘do you agree that there should be clarity?’ and he said “yes”. Would Rodriguez be opposed to amendments that bring that clarity? Clearly, you’re the Minister, it should be clear to you. For Canadians, it may not be clear. It may be clear to those in the bureaucracy. We bureaucrats, we understand our legislation. For the average Canadian, in this particular legislation that touches all Canadians, as his colleagues have said, there’s been numerous people and hundreds of e-mails. Hundreds and hundreds of e-mails coming in claiming that they have a lack of clarity. Would Rodriguez oppose amendments that bring clarity to the bill?

Rodriguez responded that, well, first, the intent has always been clear (that’s debatable at best) and the fact that we brought back 4.1 also means that we did listen to those concerns (it meant that they wanted another way of weaseling out of the controversy without actually fixing the bill). We think- he’s willing to listen. Of course he’s ready to listen. He’s said it from the start and he’s had this conversation with many of the Senators, but the bill creates no obligations to other users or- 2.1 – or the social media creators (Section 2.1 is not relevant in this part of the debate).

Senator Quinn said that he understands that he said that. He understands that. His question is a “yes” or “no”. Would Rodriguez support amendments to bring clarity to the bill?

Rodriguez responded that, well, if he doesn’t see the amendment, he cannot say “yes” or “no” to the amendment of course. They are open to discussion as always.

Senator Quinn said that his other issue that people talk about is the power of the CRTC. In fact, the Commissioner noted last week that there was a clause that was in there and he would like to have an amendment in there that gives him more power. He’s a head of a regulatory agency. That’s his job. He guesses his question is, would Rodriguez be opposed to a- we see in other bills that bring in a method that will bring checks and balances and he’s looking to see Rodriguez’s reaction to the concept of having regulations as they go through the Gazette 2 process as opposed to, upon an act, they come back to the House and through the Senate committees to look at the regulations to see are they consistent with what the then law would say, and the policy direction. Would Rodriguez be opposed to such a check and balance?

Rodriguez responded by asking if Senator Quinn is saying that every time there is one regulation, it comes back to the House or in the Senate every time they make one?

Senator Quinn clarified that we’re not talking about licensing issues or things like that, but about the policy issues that Senators are debating. It’s really about those policy and it’s provided checks and- Senators have had many witnesses talking about- they’ve had some that say the CRTC is great and some say that it’s terrible, and they’ve had a lot in the middle saying they are really cautious about the powers being bestowed and already exist within the CRTC. So, it is a bit of a check and balance. Would Rodriguez be opposed to a check and balance.

Rodriguez responded by saying that never, but everything is going to be public and open to consultations. For example, when the government drafts the policy direction, there will be a consultation right away. Then, they’ll adapt the policy direction right away to the consultation. They will send it to the CRTC. The CRTC makes a regulation. Boom. They go consultation on the regulations. Of course, he hopes Senators will have the chance, if Senators want, to participate to that, then they adapt the regulation based on the consultation and then they draft the final regulations and implementation of that.

Senator Quinn said that he’s familiar with that, but all he is saying is proposing exists in other Acts. Firearms Act for example, and there’s others. He’s looking for checks and balances and he understands his answers.

Rodriguez said that he just wants to understand that for every time the CRTC makes a regulation, then we come back to the (talk over talk).

Senator Quinn said that every time that regulations are made in the policy- and Senators have been working in the absence of a policy direction. Eventually, they need to become transparent through, but the lobby comes. So, Canadians are saying how can we have a check and balance to give us confidence that that’s what the government has dictated. For example, the big guys in, the little guys out. Rodriguez said that. His colleague has said that they have got concerns and have gotten legal advice, many of them, and they could be subject to the Act. He knows that Rodriguez saying “no”, but there’s others outside saying “you could be”. So, it’s that type of check and balance he’s (didn’t catch that last bit).

Rodriguez responded by saying that what he’s saying is that platforms in, users out, but there will be consultation under regulation. Public, and there will be-

Senator Quinn said that, yes, through the Gazetting process. (time ran out)

Senator Dennis Dawson said that, as Rodriguez knows, Senators have committed and Rodriguez committed to having all the necessary witnesses and that was a few years ago and he often have to remind colleagues that C-10 was adopted before and hundreds of witnesses were heard from. We have promised agreements and now Senators are just before the time of amendments and we have to look at how this will happen because we have said it, it is being repeated, it was said that amendments would be accepted, but we have to see what they are. We can’t vote and say we’ll accept an amendment if it’s a theoretical concept. No, we have to see it written. His question for Rodriguez is the urgency to act now: why now? What are the consequences, if ever, for one reason or another, the bill is not adopted?

Rodriguez responded by saying that the last time the Broadcasting Act was adapted was in 1991. He had black hair. They were listening to music. Remember? We had those things called? Sony Walkmen. Yes. Walkmens. You would go to Blockbuster, remember that? To rent video’s. That was the last time the Broadcasting Act was modernized. Internet was just barely existent. You had that connections *tsshhshshshs*. We couldn’t phone any more (that was called a 56k modem, or 28.8k modem, and dial up connections. How do I know this more than you?). That was the realities of the times, but now we have Netflix and all kinds of things. It’s amazing, but you can take your phone now and film. You can even do editing right on it. You can watching like it was TV on your phone. Now, the Act no longer reflects that reality. You’ve got very big players who have no rules that they have to abide by (oh, they have rules they have to abide by alright. Think illegal content and there is a pile of rules they have to abide by these days). No rules, and there are huge challenges around culture and production and things that affect our creators and Canadian content. There are challenges and that’s why it is important today that we be able to adopt this bill quickly (you know, those challenges aren’t going to appear themselves, after all). He’s asking Senators, please take action. He thinks the Senate has worked very professionally. It’s been six months that the bill has been here at the Senate. 40 hours he believes in committee. How many? 42 hours. So, extraordinary work has been done and he congratulates Senators, but it really is time that the bill be adopted for our culture sector.

(So we can finally get to the business of mercilessly crushing the dreams of Canadian independent producers, got it).

Senator Dawson spoke about the World Cup before mentioning that it’s being described that it’s putting a new system into an old system. New rules, and yet they are being attempted to be applied to former broadcasting rules. What does Rodriguez say to that because that comment was being made on a few occasions here at the committee.

Rodriguez responded that he thinks that this gives him the opportunity to the concerns mentioned. The short answer is “no”. They want to take the broadcasting system into the 21st century and he he’ll say this again: 1991 was the last time the Act was modernized. So, these rules no longer correspond to today’s reality and he thinks that, collectively, we want to be ambitious, Senators want to be ambitious Mr. Chair and colleagues around the table as well. We want to do this for the cultural sector in Canada. So, once again, when we have this ambition together, well, let’s do that.

Senator Julie Miville-Dechene said that, first of all, let’s go back to the exception to the exception, 4.2 (2). Would Rodriguez be open to the idea that this criteria on for the revenue generation be eliminated because that’s not what it’s about, really. What Rodriguez wants to do is Rodriguez wants to make the commercial musical content, the fact that YouTube wants to use music platforms. Rodriguez wants to go get the professional music content. So, why this monetary criteria because we know that there are musicians who don’t make a lot of money on YouTube. Others do make a lot of money. We’re talking of professionals. So, why not just focus on sound recordings with an ID number, and this, everything would be covered by professional musicians, foreign ones and Canadian ones?

(This is actually a question I personally asked Senator Paula Simons at one point on Twitter and it seemed to be a question she was quite receptive to. To paraphrase Peter Menzies, if you want to target something specific, then be specific about what you are targeting. Don’t just write in something vague and just assume it will be understood in a specific way.)

Rodriguez responded by saying that, in fact, the revenue criteria is one of the three criteria that has to be considered by the CRTC, but we don’t put a threshold and say ‘this has to be a lot or medium or very little’.

Senator Miville-Dechene said that we are talking about YouTubers here.

Rodriguez said that, well, the CRTC has to consider it. The other thing is that we can’t say that it’s just for music because we don’t know what will come in the future. Let’s see, in 1991, it’s been 30 years. 30 years to modernize this Act. I don’t know how many more years it will take to modernize it the next time, so there has to be a bill that allows for some flexibility to the CRTC so they can foresee other things. Music is what we are mostly concerned with today, but there will be other sectors that will be of interest in the future and today.

(One of my big questions got a non-answer, what a shock – not. Still, quite proud that a question I posed made it onto the floor of the Canadian Senate and forced the Minister to dodge after.)

Senator Miville-Dechene went on to say that, second question, right now, there is a campaign being run by a number of Canadian groups. They want to make sure that the criteria be the same around hiring staff in culture whether it is a Canadian company or a foreign company. She references 3 (f) (1). She asked about the criteria for hiring between two different parts of the sector.

Rodriguez responded that the bill will bring in more jobs and money.

Senator Miville-Dechene asked if it is about free trade or reprisals.

Rodriguez responded that trade agreements is an aspect.

Senator Miville-Dechene asked about specifics on that.

Rodriguez turned the question to Thomas Owen Ripley.

Ripley responded that provisions, at time, could resemble trade discrimination.

Senator Miville-Dechene asked about the level playing field between domestic and foreign enterprise.

Ripley responded that it’s not just about discrimination, but about if we have the regulations that force certain actions here in Canada. They are not launching this bill with the idea that people will head straight to the courts to challenge it (that ship has all but sailed, dude.)

Rodriguez added that at the end of the day, there will be more jobs for Canadians thanks to this bill (as long as they are part of the establishment no doubt.)

Senator Paula Simons brought up Section 7.7, 34.5, and 34.995, talking about powers going to council.

Rodriguez responded that he wants to avoid political interference like crazy. He also said that Bill C-18 will demonstrate this too. Also, he claims that no new powers are being granted to the government or cabinet.

Senator Simons noted the interpretation from numerous lawyers including Ian Scott.

Rodriguez responded by noting Section 7.1.

Senator Simons corrected him and said that she’s talking about 7.7.

Rodriguez responded that the section comes from 7.1.

Senator Simons corrected him and said that it does and quoted the text of the bill.

Rodriguez turned it over to Ripley.

Ripley responded by saying that the starting point must be of general application.

Senator Simons noted that they were told that these sections were put in because of CUSMA. She noted that she never understood that argument.

Ripley replied that the origins of 7.7 have nothing to do with trade concerns.

Senator Leo Housakos commented that he has never seen a piece of legislation looked at by the same eyes and be interpreted in such a vastly different way. He’s listened to Rodriguez carefully and he’s heard him, many times, saying that social media content creators are not going to be regulated by this bill, the platforms will be. He’s heard it time and time again. The truth in the matter is, and this is where the sticking point is, these platforms, if it’s YouTube, if it’s TikTok, they’re nothing. They are just a platform, a shell. If it wasn’t for the social media content creators, those platforms wouldn’t even exist. So, that is really the issue, and if he can break it down even simpler, when he listens to you, Minister, in a way, you are saying, not in a way, clearly, actors and/or anchors from CBC and CTV are not going to be, and they won’t be regulated, but the networks will be. That is the concerns of the content creators. That is the concern of some of the Senators around this table.

They’ve seen it over the last few months, Senator Housakos continues, where the CRTC has regulated a big broadcasting agent, Radio Canada. Senators saw it in relation to an issue in regards to a word where clearly they regulated and they regulated to the point where the anchor lost her job. She was pulled off the air by Radio Canada. Clearly, Senators also had the CRTC Chair, and a number of former Chair’s come before committee and reiterated that the current Broadcasting Act, as it stands, gives the power to the CRTC to regulate content.

So, Senator Housaoks continued, when you put all of these facts together on the table, he understands where the concern is coming from from the content creators and the clarity still isn’t there. So, he’d like to ask one more time how Rodriguez can regulate CBC/CTV, but not the anchors and the actors. How are you going to regulate the platforms, but not those that dress the platforms?

Rodriguez responded that we have to be clear when we say we regulate, as we say in English, the obligations affect the platforms. Why? Because we are talking about contributions, in terms of revenue for Canadian generated content. That’s a related obligation. The second thing is that it is easier to find Canadian content, music and so on. Third, there is a share of information and so on. It’s not the creators who are going to do that. When Senator Housakos said that these are empty shells, well, they are not empty shells. They are businesses and very profitable businesses. So, these are businesses that have these revenues and, case by case, they will issue a percentage of that for Canadian content. In the same way, they are going to sit down with the CRTC, once again, because there is some flexibility and each of them will be able to see how each of them are going to contribute to increasing the music or TV content.

While all of that is happening, Rodriguez continued, well, the content creator is not involved in this. We are not saying what he or she is doing is good or bad, no, that is not the case. He hopes that they agree on that. These are requirements directly for the platforms.

(Uh, does the Minister have a clue what was being asked in that question? I’m not even sure he does. Seriously, what the heck was that?)

Senator Housakos said that, with all due respect, even with that answer, he gets the impression that this will include the content generators. He agrees to disagree on that. He has also heard the Minister on a number of occasions say that there is a number of criteria right there in 4.2 that protect against the inclusion of user generated content.

Rodriguez said that it is three criteria to be considered by the CRTC.

Senator Housakos said that if you look carefully at the bill, it says that they are going to be considered. They are not binding. Again, that further creates the discomfort of content generators, Minister. So, again, to the question asked by a number of his colleagues, these are some of the loose bolts that this committee is hoping to, and those of us that have concerns, would like to tighten up. When we hear from all of the witnesses that came before Senators in this committee, Minister, both those in favour and those against the bill, he doesn’t recall one saying that they don’t want substantive changes. So, the question is, how open is the government to what he believes when they listen to the exhaustive witnesses they had before them, there will be substantive changes to the structure of this bill.

Rodriguez responded that once again, as he said from the outset, he has always been open to discussions. You know, he met with people from both sides. It’s important to meet people from both sides. He met with streamers. He met with YouTube. A lot of people because it is important to get a full perspective from all sides. So, of course they are open to discussions on that. When it was said that the CRTC needs to consider the three criteria, well, it gives this level of flexibility because when it comes to revenue, for example, there is no threshold. So, the three has to be considered, it can’t be just be one and the decision is made. No, the three have to be taken into account. (Again, Rodriguez is wrong on that assessment.)

Senator Rene Cormier said that his question is around Canadian content. At the Arts and Culture in May, Rodriguez said that Canadian content had to be reviewed and that he was going to hold consultations on this with Ministers from other countries. Rodriguez probably knows that people have been categorical that intellectual property must remain with Canadians and that the use of Canadian human resources- well, the definition might not be clear, so he would like to see where Rodriguez is at with this definition and when this will be tabled at the CRTC.

Rodriguez responded that the definition could be updated for Canadian content. That definition was from 1994. He said that the bill asks the CRTC to look at the definition again and consider some factors.

Senator Cormier asked about who holds the rights and the concerns people had over who holds the rights.

Rodriguez responded that that these are two points that are at the heart of the discussions. He said that C-11 will create more jobs for technicians and workers.

Senator Cormier said that the bill contains provisions gives the CRTC lots of possibilities. He asked if there is another section of the bill that distinguishes between Canadian broadcasts and foreign undertakings.

Rodriguez responded that, of course, they are different. He said that they brought these companies into the system.

Ripley said that he would have to check, but he thinks it’s the only place where there is this distinction on that basis.

Senator Marty Klyne said that his question is one of frustration and debate around this bill which has been the focus on the concept of discoverability. For him, an equally important aspect of promoting Canadian content is making it sought after, not just making it discoverable. So his question is, what percentage of revenues will be directed to the production and distribution of good or sought after Canadian content?

Rodriguez responded that it’s not determined yet. Senator Klyne is right in that they are doing extraordinary things. We probably can to better like any other country, but even if we do even better, if no one can see it, if it’s not showcased, how do people access it? So, that’s the challenge and they are working on both sides.

Senator Klyne responded that he doesn’t disagree with that, but he’s just wondering if it is an intent that there will be some of those revenues directed towards the creation of good Canadian- not just the creation, but the distribution – of good Canadian content.

Rodriguez responded that we have to look at this bill as part of a global effort, not in a silo (the bill makes Canada a silo), so this will bring more money into the system, this will help Canadian content to be showcased, but there is many other elements in his letter. For example, modernizing our institution: CMF, Telefilm, and others which will help that effort (I know first hand that the CMF won’t help).

Senator Klyne commented that maybe another way of asking this is will a sizable portion be incrementally sent to the Canadian Media Fund (CMF) to help create these new productions and distribution.

Rodriguez responded by stammering and then said that yes, a sizable amount will be available for Canadian independent producers if that’s the question (I doubt that).

Senator Klyen asked if the Heritage Ministry will have some influence over it.

Rodriguez responded that in his mandate, there is also the mandate to increase CMF funds which they’ll do.

Senator Klyne then said that the other concern he had is in determining the nationality of content. He has concern with the current point system (as do I) and Rodriguez was just having a discussion on that. He has another question to follow that, but Canadian production is based on criteria that’s been around one form or another since the 1920’s. There’s still residues of that. Canadian program certification, as Rodriguez alluded to, that points system was adopted in 1984. From his perspective, there’s not enough or zero weight given to the value of content contributions by Canadian’s working in Canadian jobs below the line, including the production designer, the editor, the director of photography, the grips, the others which are, for all intents and purposes, critical to giving life to the above the line jobs are doing. If we want to have those jobs stay in Canada, we need to also recognize below the line jobs and make sure they are getting substantial funding and training and education. He then spoke about his experience in Saskatchewan. He then asked about giving some weight to those jobs.

Rodriguez responded that he doesn’t disagree with that at all. It has to be considered.

Senator Donna Dasko commented that, earlier today, Rodriguez was saying that if you were looking for Celine Dion, where you would you find her? Los Vegas is where you would find her. She then continued the line of questioning by Senator Simons on clause 7.7. She asked if this clause were removed, would it change anything or not?

Rodriguez responded that this is a very good question. Probably not much.

Ripley responded that it is for greater certainty.

Senator Dasko noted that Senators have been hearing from certain witnesses saying that this gives the power to the government to do all kinds of things.

Rodriguez responded that he does disagree that it gives more power to Cabinet. In his opinion, it doesn’t at all.

Senator Dasko said that if she were to continue the line of questioning from Senators Cormier and Klyne about Canadian content, what does this clause and the point system, how would it change down the road? We’ll use this as an example. What power would this clause give to the government?

Rodriguez clarified if this was still about 7.7. Senator Dasko confirmed this has to do with 7.7. Rodriguez said that, again, he doesn’t see how it would give any new powers.

Senator Dasko said that, as Senator Simons pointed out, it invokes all of these other clauses.

Ripley responded that the CRTC would have to engage in the process in the new regulatory power that is being put in place to find Canadian programs.

Senator Dasko said that this is a broad policy direction for the CRTC. That is what they have now, but under this, doesn’t it have the ability to do more?

Rodriguez asked for clarity, which Senator Dasko gave, and then said that the answer is “no”. It’s still under the broad policy direction.

Senator Dasko said that Senators keep hearing that this gives unique comprehensive powers to the government.

Senator Housakos commented that, as Rodriguez mentioned, Rodriguez is open to conversation. When he asked how open the government is to amendment, and he guess he would like to have clarity is if they are open to conversation or is Rodriguez open to have an open mind looking at supplementive amendments that he believes, listening to the testimony and debate in this committee (didn’t catch that last bit).

Rodriguez responded that he was born with an open mind, Senator. So, of course he has an open mind. On this, he cannot say at this moment that, yes, he would agree or disagree on, technically speaking, on an amendment that he never read. That’s, Senator Housakos would understand, he cannot do that. On the general principle, they are open to that, but this bill comes after lots of consultation on the previous bill, C-10. Remember? That was discussed here too. Bill C-11 has been discussed and consulted across the country. Senators had about 120 witnesses which is amazing. Senators did amazing work here. So, they think it’s a right balance. Of course, they are ready to look at the amendments.

Senator MacDonald wanted to pick up on what Senator Klyne was speaking about. The parts about discoverability and algorithm manipulation. Section 9.8 of the bill states that (he quotes the section). However, the CRTC Commissioner has told their committee quite clearly that this will be accomplished indirectly. He said (he quoted him). They’ve been told by many witnesses that if this is done, or indirectly required, it would have a very negative impact for many Canadian creators. So, in light of that, why wouldn’t Rodriguez support and amendment to prevent this when it comes to discoverability?

Rodriguez responded that discoverability is key as Senator MacDonald knows, Senator, so we can see our music or our films. Our content. As Senator MacDonald said, the CRTC, they can’t mandate the users specific algorithm. What they want is outcomes. More music. More movies. Right? More television. More of us. More of our stories. Then, it is up to the platforms to decide how to do that (congratulations on confirming content creators worst fears). They may decide not to touch their algorithms, but that would be their own decision. They could have playlists. They can have filters. For example, they can have filters you can enter “Canadian songs”. They can advertise. They can advertise on their web page right when you go there or, he’s sure, those YouTube- he does. You listen to a song or something and an advertising comes in and that could be advertising Canadian content. So, there’s different options.

Senator MacDonald said that there’s still manipulation. When Mr. Scott appeared before their committee, he said that there are many ways to promote the discoverability of Canadian content without engaging in algorithm manipulation. He referenced advertising, helping creators produce content, using promotional reels, using commercial time, putting up billboards, etc. So, if Mr. Scott is saying that algorithm manipulation is not necessary for ensuring the discoverability, why does it need to be in the bill?

Rodriguez responded that no, we’re not saying that it’s that the platform has to do it. It’s a choice. Right? The (random sounds and stuttering) it’s very flexible, Senator. So, the CRTC will have to sit down with the different platforms because the platforms have different audiences, different technology, different way of doing things, different business models, and based on those conversations, and the outcome that they want, more films, working on more Canadian music, more Canadian production, then the platforms will have to decide themselves based on their technology, based on their business model what- how they are going to do it. It’s up to them.

Senators Simons said that they’ve heard from the 91H carriers about APTN, the Weather Channel, other public interest broadcasters. She commented how they are worried that they will lose that preferential access as broadcasters move towards streaming. She asked about what supports The Ministry’s office is prepared to give to them.

Rodriguez responded that he recognizes the importance of those services. He said that Bill C-11 already gives powers for mandatory carriage of these services. He said they were looking to help them with their funding.

Senator Simons said that the problem with mandatory carriage is that it’s mandatory carriage on broadcasts.

Ripley responded that the CRTC will have the power to require the distribution of programming channels on those services. He used Amazon as an example of an online platform being required to carry those services. He references 9.1(I).

Senator Simons said that the explanations they kept getting is that it relates to CUSMA. Global Affairs couldn’t illuminate them on that as to how that is.

Ripley responded that there’s specific obligations under CUSMA. The other piece they were mindful of is a good trading relationship around the degree of economic regulatory tools that is given to the CRTC and how interventionist they are.

Rodriguez said that let’s change history together.

With that, the hearing concluded.

Concluding Thoughts

So, this probably went about as well as I expected it to go – meaning a total trainwreck. The Heritage Ministry has been a complete disaster since this debate first cropped up. If the whole department could improve inside of a couple of months on the messaging, a whole year wouldn’t have made a difference, let alone two.

Throughout the hearing, Rodriguez was evasive of the questions for the most part, dodging, and relying on a set of talking points that hasn’t changed for many months now. Obviously, the big talking point out of all of them is the lie that platforms are in and users are out. The text of the bill debunks that and the answers Rodriguez himself gave debunked that. He himself said that the power to manipulate algorithms are part of the bill. That alone proves that user generated content is going to be regulated.

The simple truth in the matter is that if you are going to prioritize one form of content, you are demoting another piece of content. That is just basic math. Inevitably, the system is going to favour the establishments media over anyone elses. The people who suffer are going to be digital first creators, Canadian or not. Simply put, it isn’t fair. It is a massive market intervention to ensure that government’s hand-picked winners are going to succeed and those who put in the months, if not, years, to become successful will see that success eventually evaporate. This because, in the governments mind, the wrong people are winning in the free market and it is up to the government to “fix” this “wrong”.

What’s more is that you can tell that the CRTC bailed out Rodriguez by offering another talking point. Unfortunately for Rodriguez, he was unable to properly integrate that talking point into what he was saying. It was just thrown out at Senators with the hope that it would stick, but it wasn’t part of anything really comprehensible.

One thing I find frustrating in all of this is that these lies that few people would really believe are going to win out – not because they were convincing to others, but because money greased the right government wheels. Lobbying is very likely going to win out, overturning common sense and sensible lawmaking. Because of this, a lot of innocent people are going to get screwed over with this. I think about the roughly 100,000 Canadian creators who potentially stand to lose it all because the government sent a strong message that online innovation is not welcome in this country. It is an awful message to be sent, but because lobbyists told the government to jump, the government simply asks “how high?”

What’s worse about all of this is the fact that when the government is done screwing over the lives of digital first creators, they are going to immediately jump into attacking my career on top of it all without a shred of remorse. Digital First Creators did not deserve to be involuntary canaries in the coalmine, but there seems to be little stopping that from happening. I know reporters like myself are going to be next to face the legislative firing squad once they are done with Digital First Creators. If the government has no problem snuffing out the livelihoods of Digital First Creators, what chance do people like me have? We have even fewer numbers and, although we can raise a stink too, if it didn’t help Digital First Creators, is the story going to be different for us?

The question that runs through my mind in all of this over and over again is this: how could you do this to a generation? Maybe it’s because I am still capable of feeling empathy that prevents me from understanding some of those people who are still actively pushing for this legislation. Maybe if I ever become a psychotic monster that I would fully understand it. Fortunately, I have no intention of ever going there, so I guess I’ll never understand it.

At any rate, Rodriguez did nothing to help his cause there. It’s not a surprise and had it not been for the abysmal performance by the Canadian Justice Department clear back in hearing one, I would have called this the single worst appearance I’ve seen throughout these hearings. At least Rodriguez was able to conjure up something untruthful in response every once in a while. The Justice Department just sat there and repeatedly said that they are not there to provide legal advice.

Let us all hope that litigation is capable of putting a stop to this bill before it causes too much damage. This seems to be the only out in all of this that is worth putting some degree of hope into this debate.

Drew Wilson on Twitter: @icecube85 and Facebook.