FRIENDS Standing Up For Canadian Voices

FRIENDS — Who We Are & What We Do We are a citizens group that stands up for Canadian voices on air and online. Our Key Issues FRIENDS Our Advocacy Page 1 We can make sure CBC/Radio-Canada is truly public, with fewer ads, more news, and more independence. A truly public CBC We can level the playing field so more money flows back into Canada to invest in our great Canadian stories. T elling our own stories We need credible Canadian journalism. Democracy depends on it. We can protect it. Strong and credible journalism Hate, death threats, and violence have no place in traditional or social media. Canadian values in Canadian media

FRIENDS Bill C-11 Online Streaming Act Page 2Proposed amendments to and comments on Bill C-11 – Online Streaming Act FRIENDS supports the government’s intention to modernize the Broadcasting Act. For too long, streaming platforms like Netflix and YouTube have been allowed to do business in Canada with no obligation to contribute to Canadian programming. Passage of Bill C-11 will help ensure that Canadians continue to have the autonomy and the ability to tell and share their stories at home and abroad. FRIENDS participated in the discussions around C-10 and contributed to improved language in C-11.

This document provides an update on our priority amendments. 1. Canadian Ownership and Control FRIENDS introduced the amendment to

section 3(1)(

a) that was ultimately passed at Committee. This amendment enshrined the policy principle that the Canadian broadcasting system should be effectively owned and controlled by Canadians. Original Bill C-11 language: 3

(1) It is hereby declared as the broadcasting policy for Canada that (

a) the Canadian broadcasting system shall, with the exception of foreign broadcasting undertakings providing programming to Canadians, be effectively owned and controlled by Canadians; Amended language as accepted by the Heritage committee: 3

(1) It is hereby declared as the broadcasting policy for Canada that (

a) the Canadian broadcasting system shall be effectively owned and controlled by Canadians, and it is recognized that it includes foreign broadcasting undertakings that provide programming to Canadians; This amendment is vital to preserve the CRTC’s ability to support and give priority to Canadian broadcasting undertakings, while recognizing that foreign undertakings now play a more significant role in the system. We urge the Senate to ensure this amendment remains in the Bill.

We further caution against any proposed amendments to 3(1)(a.1) which can only serve to dilute or undermine the fact that it is a fundamental broadcasting policy objective that our system remain, at its core, Canadian. 2. Independent Production Sector FRIENDS is concerned with language that was added to

section 3(1)(i)(

v) during the committee process, in a very close 6-5 vote.1 Original Bill C-11 language (unchanged from the existing Broadcasting Act): 3(1) it is hereby declared as the broadcasting policy for Canada that (

i) the programming provided by the Canadian broadcasting system should (…) (

v) include a significant contribution from the Canadian independent production sector; Amended language added by the House Committee: 3(1) It is hereby declared as the broadcasting policy for Canada that (

i) the programming provided by the Canadian broadcasting system should (…) 1 Supported by Martin Champoux, Peter Julian, John Nater, Rick Perkins, Tim Uppal, Kevin Waugh and opposed by Chris Bittle, Michael Coteau, Lisa Hepfner, Anthony Housefather, Tim Louis. See Minutes of Proceedings, Standing Committee on Canadian Heritage, 44th Parliament, 1st Session, Meeting 36, June 14, 2022 at https:/ / www.ourcommons.ca/DocumentViewer/en/44-1/CHPC/meeting-36/minutes

FRIENDS Bill C-11 Online Streaming Act Page 3(

v) include the greatest possible contribution from the Canadian production sector, whether it is independent or affiliated with or owned by a broadcasting undertaking. If maintained, this amendment would upend 30 years of Canadian broadcasting policy pertaining to the independent production sector, all of which was rooted in program diversity.

Retention of this new language would suggest that diversity of voices matters less today than it did in 1991 – something entirely contrary to other provisions in the Bill.2 The Bill already recognizes the important contribution of private broadcasters in terms of the Canadian programming they typically produce: local news and information programming.3 FRIENDS supports a reinstatement of the existing language under the Broadcasting Act. Based on the conversations we have had with various Members of Parliament, we are confident that the House Committee would support a reinstatement of the existing language. 3.

The Use of Canadian Talent

Section 3(1)(

f) and (f.1) of Bill C-11 propose different treatment for Canadian broadcasters and foreign online undertakings when it comes to the use of Canadian creative and other human resources in the creation, production, and presentation of programming. This is entirely contrary to the scheme of the Act which calls for “equitable” contributions from Canadian and foreign undertakings,4 and infers that it would be permissible for foreign undertakings to have a lower standard in terms of their use of Canadian resources when making Canadian programming.

As currently drafted, the standard for Canadian broadcasters is maximum use, and in no case less than predominant use, but the foreign online undertakings have a lower standard of greatest practicable use. If the goal is to create a level playing field, then when it comes to using Canadian resources for Canadian programming, both Canadian broadcasters and foreign streamers should be held to the same maximum use standard. FRIENDS continues to support the amendment proposed by the CDCE for

section 3(1) (f), initially proposed for Bill C-11 before the House Committee, with one small change as noted below. The CDCE proposed construction of this

section of the Bill speaks specifically to the need to maximize Canadian talent when commissioning Canadian programming. Foreign players would continue to have the flexibility to use non-Canadian talent when making non-Canadian programming or service productions. 2 The Bill adds numerous new clauses to

section 3(1)(d)(iii) of the Act in support of greater diversity in the broadcasting system “including Canadians from racialized communities and Canadians of diverse ethnocultural backgrounds, socio-economic statuses, abilities and disabilities, sexual orientations, gender identities and expressions, and ages”, opportunities for Indigenous peoples, official language minority communities, ethnocultural communities, community broadcasting and independent broadcasting. 3 Sections 3(1)(i)(ii)&(ii. 1) 4 The requirement for “equitable contributions” is found in

section in 3(1)(f. 1), 3(1)(q)(

i) in respect of discoverability and

section 5(2)(a.2) as a minimum standard of regulatory policy. Unfortunately, the wording in

section 3(1)(f. 1) is in effect contradictory. While it requires foreign online undertakings to “contribute in an equitable manner to strongly support the creation, production and presentation of Canadian programming”, it directly undermines that equitable treatment in saying that foreign online undertakings need only “make the greatest practicable use of Canadian creative and other human resources” as opposed Canadian broadcasting undertaking that must “employ and make maximum use, and in no case less than predominant use, of Canadian creative and other human resources” pursuant to

section 3(1).

Proposed revised CDCE Amendment Remove 3(1)(f.1) and replace 3(1)(

f) with the following: (

f) each broadcasting undertaking shall make maximum use, and in no case less than predominant use, of Canadian creative and other resources in the creation, production and presentation of Canadian programming, and shall contribute significantly to the creation, production and presentation of Canadian programming to the greatest extent possible that is appropriate for the nature of the services provided by the undertaking; 4. CRTC’s authority to regulate online services Sections 9 and 10 of the Act set out the CRTC’s regulatory authority over broadcasting undertakings.

With Bill C-11, there are now gaps between their powers to address certain situations in the traditional broadcasting system and similar situations in the new online world. FRIENDS feels very strongly that there must be a back stop to ensure Canadian programming services can gain access to online streaming platforms under fair and equitable terms and to help resolve disputes when they cannot. Without this backstop, there can be no level playing field. FRIENDS, therefore, agrees with the Independent Broadcasters Group that the CRTC should be able to: (

a) set terms of carriage in an online environment for specific services that serve an important public policy mandate, such as APTN, TV5 and CPAC; and (

b) have authority to resolve disputes that may arise regarding online distribution, and ensure that subscribers don’t lose access to the programming on Canadian services Accordingly, we support the proposed amendments put forth by the Independent Broadcasters Group as set out below. Changes to proposed

section 9.1 regarding the distribution of specified services: 9.1(1)(

h) a requirement for a person carrying on a distribution undertaking or an online undertaking that provides the programming services of other broadcasting undertakings to carry, on the terms and conditions that the Commission considers appropriate, programming services specified by the Commission; As an alternative, the existing provisions could be retained, and the Commission provided with explicit authority to set terms for online distribution where good faith negotiations have failed (as follows) 9.1(10) The Commission may facilitate those negotiations at the request of either party to the negotiations and, notwithstanding paragraph (1)(i), if no agreement is reached determine terms and conditions for carriage that the Commission considers appropriate.

Changes to proposed

section 9.1 regarding the general oversight of online distributors: 9.1(1)(l.1) the carriage of any foreign or other programming services; Changes to the CRTC’s existing dispute resolution authority to reflect online distributors: 10(1)(

h) for resolving, by way of mediation or otherwise, any disputes arising between programming undertakings and distribution undertakings broadcasting undertakings concerning the carriage of programming services originated by the programming undertaking; FRIENDS Bill C-11 Online Streaming Act Page 4