Restoring Balance and Ensuring Our Cultural Sovereignty Brief submitted by With the support of Presented to: The Standing Senate Committee on Transport and Communications As part of the appearance pertaining to Bill C-11, The Online Streaming Act June 3, 2022

Tale of Contents Background .................................................................................................................................................................... 5 1. Clearly defining the concept of a “Canadian program” .................................................................. 6 2. Providing a framework for social media .............................................................................................. 7 3. Calling on Canadian artists and workers ............................................................................................. 8 4.

Maintaining an open and transparent process through public hearings ............................. 10 5. Preserving the powers of the Governor in Council ........................................................................ 10 Considerations for next steps ............................................................................................................................... 10 Annex 1: Proposed Amendments to Bill C-11 ............................................................................................... 13 3 | P a g e

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5 | P a g e Background The arrival of U.S. digital giants and their appropriation of advertising and subscription revenues is jeopardizing the balance of the Canadian broadcasting landscape. This unregulated and unfair competition from new players has greatly increased the supply and reach of foreign content (often big budget productions) and adversely impacted the ability of Canadian productions, particularly French-language films, series and music, to be financed and to flourish.

Not only are the traditional stakeholders who contribute to the production, broadcasting, distribution and discovery of our original content in a fragile, and sometimes extremely precarious situation, but our cultural sovereignty and right to quality information are also danger. This is what Sophie Prégent, president of the Union des artistes (UDA), said during her appearance before the Standing Committee on Canadian Heritage in 2021: ...Television enters our homes and radio enters our cars and houses. They belong to us and look like us. They convey our values. They reflect who we are and make us evolve together.

In short, radio or telev ision serve as mirrors for us [by reflecting who we are, our identity and our culture]. The laws governing these two media should acknowledge the values of identity and recognition. In our current system, the digital age is increasingly taking over the way we consume TV and radio content. Naturally, the mirroring phenomenon [to ourselves through this] is therefore slowly diminishing. Concern is thus prompting us to ask ourselves whether it will diminish to such an extent that one day we will no longer be able to recognize and see ourselves in it. That would be profoundly dramatic.

From the moment we know who we are, we can necessarily look at the other person better and accept their difference. 1 The lure of deregulation and the race to the bottom to facilitate the integration of the digital giants constitute a red herring.

In this regard, we salute the important work of parliamentarians who have improved the initial bill in several respects, particularly with regard to the protection and promotion of French in the English-language media and cultural universe of North America, issues related to Canadian control and ownership of broadcasting undertakings, and the regulatory powers of the CRTC. We also note that parliamentarians have recognized social media as important platforms for disseminating audio and audiovisual cultural content. That said, further progress needs to be made on some issues.

Noting the work that took place in 2021, we have chosen to focus on a limited number of issues. We insist 1 https://www.ourcommons.ca/DocumentViewer/en/43-2/CHPC/meeting-14/evidence

6 | P a g e that these amendments are necessary, but they cannot be used as a pretext to postpone this vital reform indefinitely: time is against us, because year after year, as foreign giants enter our markets, our cultural productions are losing viewers and listeners. We must absolutely avoid that Bill C-11 be given the same short shrift as Bill C-10 by dying on the Order Paper.

Lastly, of all the proposals we are putting forward, particularly those regarding social media, we have one concern: Canada must have a regulatory framework that in the coming years will not be set in stone and will not respond solely to today’s challenges. Over the next few years, this framework will need to remain relevant and responsive to any transformations that may occur in technology or business models. This brief also sum marily discusses some of the issues that will require attention in the coming months after Bill C-11 is adopted . Appendix 1 includes the proposed amendments. 1.

Clearly defining the concept of a “Canadian program” The current legislation requires the CRTC to define by regulation the notion of Canadian programs. This notion is fundamental s ince most of the regulatory obligations are associated with it, including spending obligations on Canadian programs, obligations relating to the program

schedule of certain broadcasters, etc. Bill C-11 recommends guidelines that must be respected by the CRTC when the time comes to review the definition of Canadian programs if necessary. While we support this approach, there are some shortcomings.

The proposed criteria would be a step backwards from the current definition of a Canadian program (see CRTC Regulatory Policy 2020 -905). 2 Currently, the CRTC defines Canadian programs through three types of conditions: (1) the producer (is it Canadian and does it have real responsibilities, including for decision- making?), (2) the point system for whether key creative functions are performed by Canadians (lead actors, directors, etc.), (3) service expenses incurred in Canada.

Specifically, the CRTC considers that for a program to be Canadian, the producer “[m]ust be Canadian, must control and be the central decision- maker of a production from beginning to end”. In comparison, Bill C-11 provides for Canadian producer s (holding the copyright) to “collaborate” with broadcasters. This is not enough. Who would make the real production decisions? Would we accept as Canadian a program where the Canadian production undertaking is only a subcontractor of foreign digital giants that make the real decisions related to creation?

In this regard, the evolution of the globalized digital industry is worrisome to say the least. Traditionally, digital services like Netflix have used data collected from 2 https://crtc.gc.ca/eng/archive/2010/2010-905.htm

7 | P a g e subscribers to learn about their preferences and suggest content to watch (or lis ten to) in order to increase subscriber engagement on their platform: which subscriber watched which series? With which actors and directors? At what time of day? On which device? Which audience member paused the content, how many times and when? etc. This data is increasingly used to define the artistic concepts of new productions and to select actors and other key creative positions. These trends are harmful to our cultural sovereignty.

This is all the more true in view of the desire of certain digital giants to use only supposedly universal cultural referents, to the detriment of cultural referents specific to specific cultures such as those of Quebec or Canada. For example, in a 2016 study, Netflix’s posture couldn’t be clearer: “As a result, Netflix found that fan behaviour was fairly universal.

From Argentina to Japan, members get addicted to watching the same kind of episodes and identify with the same storylines .” Cindy Holland, vice president of Netflix original programming explained at the time: [tr anslation] “our global network allows us to stream [series] in every country, and the data we collect indicates how much our members watch and respond to certain series and stories in the same way.” 3 In short, current industry trends threaten cultural sovereignty and, in the face of this, we cannot afford to ease the definition of Canadian programming.

Therefore, our proposal is based on the current wording of the CRTC criteria. In addition, it should be noted that in clause 10(1.1), the guidelines for defining a Canadian program make no reference to the issue of expense s incurred by Canadian companies for service fees and post- production. This is a shortcoming . Currently, Canadian certification requires that a minimum of 75% of program production and post-production expenses be allocated to services provided by Canadians or Canadian undertakings.

Finally, the same paragraph states that for a program to be considered Canadian, the copyright must be owned by Canadians. We believe that this criterion should be extended to all intellectual property rights. 2. Providing a framework for social media Social media platforms are not only a tool to facilitate interpersonal exchanges or for amateur distribution of cultural content. Increasingly, they are essential platforms for the promotion, distribution and large-scale consumption of cultural content. Bill C-11 proposes that television programs in general should not be subject to the Broadcasting Act.

However, an exception rule is provided for, allowing certain content to be uploaded to social media, which will be determined by the CRTC, which will have 3 https://www.latribune.fr/technos-medias/comment-netflix-fabrique-ses-series-a-succes- 785278.html

8 | P a g e to respect the guidelines set out in the Act. This approach allows the CRTC greater flexibility to regulate what needs to be regulated and to exempt activities where it is not relevant. The CRTC will be able to impose discoverability requirements, royalties and more on social media platforms for programs it determines to be appropriate to regulate. This is what we want. Only social media platforms that broadcast such content subject to the law will be considered broadcasting undertakings. Furthermore, no social media user will be regulated.

While we generally agree with this approach, there are a few things that need to be corrected. On the one hand, the way in which social media makes programs available to users is not only by uploading them. They also do so when these same users upload hyperlinks that allow other users to be redirected to other websites where these programs are hosted. This must be taken into account, as a hyperlink is not a program, according to the current definition in the law. On the other hand, some “users ” of social media services are like broadcasters, distributors, and even networks to some extent.

For example, consider the VEVO service on YouTube and other platforms, which is an essential player in terms of the “discoverability” of music videos. If Parliament does not provide a mechanism to regulate these “users,” it could create a two-tiered regime: these broadcasters would be regulated when they post programs on their own websites (being considered “online undertakings”), while they would not be regulated if they upload programs to social media platforms. It is also necessary to regulate these kinds of “users” because they have a decisive influence on the visibility of musical and audiovisual content.

We propose to introduce a general rule where social media u sers are not regulated and an exception rule allowing the CRTC to regulate certain users according to specific guidelines defined by law. Under our proposal, the “users” potentially covered by this exception rule would be either broadcasting undertakings that already have regulatory obligations set by the CRTC or undertakings that broadcast audio and audiovisual content produced by a third party on a social media platform.

Apart from regulated broadcasting undertakings , the CRTC would not be able to impose regulations on users who broadcast their own content, which is the vast majority of social media users. Finally, we believe that the CRTC should have the power to impose a royalty regime on social media platforms based on their total revenues, not just rev enues from programs subject to the Act.

This would counteract a kind of “tax avoidance” on the part of social media services, while simplifying the administration of this royalty regime (especially since the advertising revenues received by some social med ia platforms are not always associated with specific programs). 3. Calling on Canadian artists and workers The current Act includes provisions that require television and radio broadcasters

9 | P a g e and distributors (e.g., cable companies) to make maximum use of Canadian artists and workers. The proposed amendments to paragraphs 3(1)(

f) and (f.1) of the Act are problematic because they create different and less stringent obligations for foreign digital giants compared to Canadian undertakings. While a Canadian undertaking shall make “maximum” use of Canadian artists and workers, “and in no case less than predominant use,” foreign giants will only be required to “make the greatest practicable use .” At most, the CRTC will be require d to treat all undertakings, Canadian and foreign, in an equitable manner (see 5(2)(a.2)). The digital giants could use this disparity to try to justify a more complacent approach towards them.

The CRTC must be tasked with aggressively calling on artists and other local workers ; otherwise, legislative reform will just be a smoke screen. During the committee’s study on Bill C-10, Members of Parliament attempted to limit the effects of a two -tiered system where foreign broadcasters would have fewer obligations to use Canadian talent.

For this reason, they added the following language: “3(1)(f.1) each foreign online undertaking shall make the greatest practicable use of Canadian creative and other human resources, and shall contribute in an equitable manner to strongly support the creation, production and presentation of Canadian programming, taking into account the linguistic duality of the market they serve”. We believe that this obligation should apply to all components of the broadcasting system. For this reason, we propose to amend paragraph 3(1)(e).

At the same time, we found in the past that not having undertakings in our markets can create additional barriers for our cultural community. For example, we found that certified independent production funds that are not based in the francophone market, such as the Rogers Fund or the Shaw Fund, have funding criteria that are less well adapted to our market, which is partly because their decision-makers are less familiar with these markets.

We are concerned that foreign broadcasters like Netflix or Amazon will be more reluctant to fund content that is specifically targeted at our markets if their decision- makers are not based there themselves. Canadian broadcasting policy should set the expectations for foreign online undertakings in this regard. Finally, Bill C-11 seeks to introduce a criterion that limits the CRTC’s ability to impose broadcasting conditions on undertakings if they do not contribute in a material manner to the implementation of the broadcasting policy (5(2)(h)).

This addition is not necessary in our view, given the existing practices of the CRTC. This legislative change could be used by undertakings to justify a greater easing of the regulatory framework.

10 | P a g e 4. Maintaining an open and transparent process through public hearings Currently, the licence renewal exercise is a high point for corporate accountability and citizen engagement. This is where stakeholders can ask questions, provide assessments and make recommendations to help the CRTC make the best possible decisions. Broadcasting undertakings are naturally better equipped than other stakeholders to influence the regulatory process , and only an open and transparent process is able to ensure an appropriate balance when it comes to arbitrating between competing interests.

As proposed by Bill C-11, licences for traditional broadcasters could be set for indefinite terms and online services would not have to apply for a broadcast licence. This makes the public hearing process ineffective. Bill C-11 introduce s a periodic public hearing process every seven years (see 34.01 (1)), but this process will be used to evaluate the regulatory system as a whole rather than to make specific judgments about new conditions of service for a given broadcaster.

For this reason, the issuance of orders imposing conditions of service on an undertaking or group of undertakings should be subject to public hearings, as is currently the case for broadcasting licence conditions. Citizen participation is a strong principle of the Act that must not be weakened. 5. Preserving the powers of the Governor in Council Currently, the Governor in Council may set aside or refer the back for reconsideration a CRTC decision that affects broadcasters’ licences if the Governor in Council is of the opinion that the objectives of the legislation are not being met.

This happened in 2017, when it was determined that the licenc ing conditions initially imposed on major French -language television groups did not protect French enough. This authority should be expanded to cover CRTC decisions setting out the responsibilities and obligations of online undertakings that will not be governed by licence conditions. It is therefore an essential mechanism for guaranteeing our cultural sovereignty, while at the same time preserving the principle that the government acts with a healthy distance in establishing and applying the regulatory process that applies to media outlets.

This power of the Governor in Council must therefore apply to CRTC orders. It is not a matter of creating a new power, but rather of preserving an existing one. Considerations for next steps As it stands now, improving and adopting Bill C-11 is a short-term priority. However, we believe it is useful to provide a set of actions that need to be undertaken in the coming months.

11 | P a g e First, we welcome the government’s stated intention to file a Direction Order to the CRTC. The draft order published in 2020 will need to be revi ewed and enhanced to reflect changes to the Bill that have occurred in the interim. Some provisions will have to be amended to avoid deregulation and a levelling down of the regulatory obligations imposed on undertakings. In addition, the draft order provided very little guidance on fundamental issues in the regulatory system to be considered by the CRTC.

Some of these issues include quotas for original French -language content, requirements for diversity of programming genres, criteria for the allocation of royalty monies, criteria for the development of content promotion and discoverability obligations, the regulation of content distribution by online undertakings, the diversity of voices policy, maintaining ownership and control of Canadian online undertakings, promotion of information, especially local information, etc. Ideally, in the interest of transparency, the government should make a new draft order public during the current legislative process.

In addition to giving direction to the CRTC, the government will need to ensure that the CRTC is given sufficient financial resources to carry out its new powers and responsibilities properly and expeditiously. Second, the government should introduce a bill as soon as possible to ensure fair remuneration of news media outlets by digital platforms. We find Australia’ s approach to this issue interesting.

We will pay particular attention to the issue of transparency, as well as to banning discrimination in platform practices between media undertakings, according to whether or not they use the procedures provided for by law. Third, we call on the government and all political parties to commit to introducing and passing a second bill on the Broadcasting Act to address some of the issues raised in the Yale Report that are not addressed in the current Bill.

This second phase must focus on the Canadian Broadcasting Corporation (CBC) to improve its funding, consolidate and pursue the governance reforms it has begun, and review its mandate as set out in the Act. Fourth, the government must present a comprehensive plan to review all funding for media, cultural productions, artists and journalists. Fundamental aspects of this plan will be covered by the ongoing reform to the Broadcasting Act and the upcoming Bill on compensation for news media outlets.

But this reform will be incomplete if we do not ensure that contributions in the form of royalties are imposed on Internet service providers. The expansion of the jour nalism payroll tax credit should also support these initiatives. In addition, the government will also have to address the copyright income of artists. The challenges to these rights have never been greater in the context of the globalization of culture and the growing presence of digital technology in cultural production.

Indeed, although important efforts have been made in the last few years, the Copyright Act still has many shortcomings that do not meet the needs of artists who wish to protect their work as well as to be recognized and compensated

12 | P a g e for their use. Fifth, in order to ensure tax fairness for all businesses operating in Canada, certain tax reforms should be carried out. First, it is important to reform the tax deduction rules for advertising expenses to ensure that expenses incurred on Internet sites no longer benefit from exception rules. Second, a reform of the income tax rules is essential to ensure that foreign digital undertakings are properly taxed on profits earned in Canada.

We support the October 2021 agreement among 137 countries to reform the international tax system and, until that agreement is implemented, we call on Canada to institute the temporary tax on digital services as soon as possible and apply it to all large digital multinationals, including Netflix.

13 | P a g e Appendix 1: Proposed Amendments to Bill C-11 Sections of the Act, current version Clauses of Bill C-11 Proposals of the FNCC- CSN, UDA, ARRQ, GMMQ Explanations Subsection does not exist Subsection does not exist Add subsection 2(X): Hypertext link 2(

X) For the purposes of subsection 4.1 (2), a hyperlink that redirects social media users to a program offered by a service of an online undertaking is considered a program within the meaning of the Act. Some online programming services use social media as a primary showcase for their programs, without however hosting those programs on their respective social media pages. Instead, they share hyperlinks on social media for other users to access. When other users click on the hyperlink, they are redirected to the programming service in question. However, these hyperlinks are not considered as programs.

According to Bill C-11, the law therefore does not apply to these cases. We believe that social media services should have discoverability obligations for these hyperlinks, in the same way as programs that are uploaded in the manner set out in

section 4.1 (2), including programs that will be regulated by the CRTC (e.g., because they generate revenue). Subsection does not exist Exclusion — carrying on broadcasting undertaking S. 2(2.1) A person who uses a social media service to upload programs for Add a subsection 2(2.X): Certain social media users Some users are like broadcasters or distributors in the proper sense of the term. The impossibility of regulating them could result in a two-tiered system. The issue is the following:

14 | P a g e Sections of the Act, current version Clauses of Bill C-11 Proposals of the FNCC- CSN, UDA, ARRQ, GMMQ Explanations transmission over the Internet and reception by other users of the service — and who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them — does not, by the fact of that use, carry on a broadcasting undertaking for the purposes of this Act. 2(2.

X) Notwithstanding subsection 2.1, a person who uses a social media service to upload programs for transmission over the Internet and reception by other users of the service is, by the fact of that use, carrying on a broadcasting undertaking for the purposes of this Act, if the person is subject to a regulation made under

section X. Add

section X: Regulations - social media users X(1) For the purposes of subsection 2(2.X), the Council may make regulations stipulating which users of a social media service are subject to this Act. Criteria

(2) In making regulations under subsection (1), the Council shall consider the following criteria: (

a) the fact that the person who uses a social media service is an undertaking that itself, its shareholder, its affiliate or the agent or mandatary of either of them is a broadcasting undertaking that is required to be operated under a licence, or required to be licenced, or that is required to be registered with the Commission; considering these entities as broadcasting undertakings when they broadcast content on their own platform and yet not considering them as broadcasting undertakings when these same undertakings upload their programs via social media platforms.

15 | P a g e Sections of the Act, current version Clauses of Bill C-11 Proposals of the FNCC- CSN, UDA, ARRQ, GMMQ Explanations

b) the fact that the user is an undertaking that itself, its shareholder, its affiliate or the agent or mandatary of either of them acquires broadcast rights to programs produced by a third party; Programs considered (3) Subsection (2) applies only in respect of programs that are considered to be programs within the meaning of subsection 4.1(2).

Subsection does not exist Exclusion - social media service and programming control 2(2.2 ) An online undertaking that provides a social media service does not, for the purposes of this Act, exercise programming control over programs uploaded by a user of the service who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them.

Amend subsection 2(2.2) as follows: Exclusion - social media service and programming control 2(2.2) An online undertaking that provides a social media service does not is deemed not to, for the purposes of this Act, exercise programming control over programs uploaded by a user of the service who is not the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them.

If the business model of a social media outlet changes in order to exercise programming control, it should be possible to demonstrate they have this control and disqualify them (on a case-by-case basis) from the exclusion. 3

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

e) each element of the Canadian broadcasting system shall contribute No changes proposed (

e) each element of the Canadian broadcasting system shall contribute strongly, equitably and in an appropriate manner to the creation, production and presentation of Canadian programming, taking into account the Bill C-11 proposes to add paragraph 3 (1)(f.1) which states in part: “each foreign online undertaking … shall contribute in an equitable manner to strongly support the creation, production and presentation of Canadian programming, taking into account the linguistic duality of the market they serve.”

16 | P a g e Sections of the Act, current version Clauses of Bill C-11 Proposals of the FNCC- CSN, UDA, ARRQ, GMMQ Explanations in an appropriate manner to the creation and presentation of Canadian programming; linguistic duality of the market they serve; In our view, this obligation should apply not only to foreign online undertakings, but to all elements of the Canadian broadcasting system. For this reason, we propose to delete 3(1)(f.1) and move the elements of this statement back into paragraph 3(1)(e). 3(1) It is hereby declared as the broadcasting policy for Canada that (

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 and presentation of programming, unless the nature of the service provided by the undertaking, such as specialized content or format or the use of languages other than French and English, renders that use impracticable, in which case the undertaking shall make the greatest practicable use of those resources; 3(1) I t is hereby declared as the broadcasting policy for Canada that (

f) each Canadian broadcasting undertaking shall employ and make maximum use, and in no case less than predominant use, of Canadian creative and other human resources in the creation, production and presentation of programming, unless the nature of the service provided by the undertaking, such as specialized content or format or the use of languages other than French and English, renders that use impracticable, in which case the undertaking shall make the greatest practicable use of those resources; (f.1) each foreign online undertaking shall make the greatest practicable use of Canadian creative and other human resources, and shall contribute in an equitable manner to strongly support the creation, production and presentation of Canadian programming, taking into account the linguistic duality of the market they serve; Amend paragraph 3

(1) f) as follows: (

f) each Canadian broadcasting undertaking shall make the greatest possible, and in no case less than predominant, use of Canadian human resources — creative and otherwise —in the creation, production and presentation of their Canadian programming, and must make a significant contribution to the creation, production and presentation of Canadian programming to the greatest extent appropriate to the nature of the undertaking. Delete paragraph 3(1)(f.1). The legislation should minimize the language gap in between Canadian and foreign undertakings in the objectives of the Broadcasting Policy for Canada.

As currently worded, Bill C-11 enshrines fewer obligations for foreign digital giants than for Canadian undertakings. We propose deleting 3(1)(f.1). However, part of the provision should apply not only to foreign online businesses, but to all elements of the broadcasting system. For this reason, we suggest amending paragraph 3(1)(e) (see above).

17 | P a g e Sections of the Act, current version Clauses of Bill C-11 Proposals of the FNCC- CSN, UDA, ARRQ, GMMQ Explanations Paragraph does not exist Paragraph does not exist 3(1)(

x) Foreign online undertakings should, to the extent that their financial and other resources permit, establish and maintain a commercial and decision-making establishment in Canada in the markets they serve. The remoteness of decision makers influences broadcasters’ decisions when it comes to acquiring or commercializing original French-language content. The wording takes into account the financial capabilities of online businesses, so this objective applies to the largest foreign players in the industry.

Section does not exist Non-application - programs on social media service 4.1(1) This Act does not apply in respect of a program that is uploaded to an online undertaking that provides a social media service by a user of the service for transmission over the Internet and reception by other users of the service. Application - certain programs

(2) Despite subsection (1), this Act applies in respect of a program that is uploaded as described in that subsection if the program

a) is uploaded to the social media service by the provider of the service or the provider’s affiliate, or by the agent or mandatary of either of them; or

b) it is subject to regulations made under

section 4.2. Non-application - social media service Amend subsection 4.1(1) as follows: 4.1(1) Except for the Commission’s authority to impose royalties on an online undertaking providing a social media service, this Act does not apply in respect of a program that is uploaded to an online undertaking that provides a social media service by a user of the service for transmission over the Internet and reception by other users of the service.

The CRTC should be able to impose royalties on social media services based on their total revenues, not just on revenues generated by programs that apply under subsection 4.1(2). Otherwise, social media services may be tempted to commit “tax avoidance” by attempting to reduce user exposure to content subject to royalties.

18 | P a g e Sections of the Act, current version Clauses of Bill C-11 Proposals of the FNCC- CSN, UDA, ARRQ, GMMQ Explanations

(3) This Act does not apply in respect of online undertakings whose broadcasting consists only of programs in respect of which this Act does not apply under this section. For greater certainty

(4) For greater certainty, this

section does not exclude the application of this Act in respect of a program that, except for the fact that it is not uploaded as described in subsection (1), is the same as a program in respect of which this Act does not apply under this section. Paragraph does not exist Regulation and monitoring 5(2) The Canadian broadcasting system should be regulated and supervised in a flexible manner that (

h) takes into account the variety of broadcasting undertakings to which this Act applies and avoids imposing obligations on any class of broadcasting undertakings if that imposition will not contribute in a material manner to the implementation of the broadcasting policy set out in subsection 3(1). Replace proposed paragraph 5(2)(

h) with: 5(2) The Canadian broadcasting system should be regulated and supervised in a flexible manner that (

h) takes into account the variety of broadcasting undertakings to which this Act applies and avoids imposing obligations on any class of broadcasting undertakings if that imposition will not contribute in a material manner to the implementation of the broadcasting policy set out in subsection 3(1). The paragraph as proposed by Bill C-11 unnecessarily limits intervention by the CRTC. This legislative change could be used by undertakings to justify more easily loosening the regulatory framework. Representations 8(2) The minister shall: (

a) specify in the notice the period — of at least 30 days from the day on which the notice was published under paragraph (1)(a) — during which interested persons may make representations; and Transparency must be ensured as part of the consultation process prior to the issuance of a Direction Order by the Governor in Council. Thus, all comments received must be made public.

19 | P a g e Sections of the Act, current version Clauses of Bill C-11 Proposals of the FNCC- CSN, UDA, ARRQ, GMMQ Explanations (

b) publish, in such manner as it considers appropriate, a report summarizing the representations received by it during that period. Subsection does not exist Regulations - Canadian programs 10(1.1) In making regulations under paragraph (1)(b), the Commission shall consider the following matters: (

a) whether Canadians own copyright in relation to a program, control the exploitation of a program and retain a material and equitable portion of its value; (

b) whether key creative positions in the production of a program are primarily held by Canadians; (

c) whether a program furthers Canadian artistic and cultural expression; (

d) whether persons carrying on online undertakings or programming undertakings collaborate with independent Canadian producers, with persons carrying on Canadian broadcasting undertakings producing their own programs or with producers associated with Canadian broadcasting undertakings; and (

e) any other matter that may be prescribed by regulation. Amend paragraphs 10(1.1)(

a) and (

d) and add a new paragraph as follows: (

a) whether Canadians own the intellectual property rights in relation to the program, control the exploitation of a program and retain a material and equitable share of its value, and have primary responsibility for the control and decisions relating to the production of these programs, from beginning to end; … (

d) whether persons carrying on online undertakings or programming undertakings collaborate with independent Canadian producers, Canadian licensees of musical compositions and sound recordings, with persons carrying on Canadian broadcasting undertakings producing their own programs or with producers associated with Canadian broadcasting undertakings, to reach the objectives of paragraph (a). We do not want programs to be considered Canadian if the creative process is not primarily undertaken by Canadians.

To be considered a Canadian program, the program should be produced by a Canadian producer, and the Canadian producer must be primarily responsible for control and production decisions. In this regard, the concepts of property rights and to “collaborate” (in paragraph (d)) are important, but not sufficient.

Currently, according to CRTC Regulatory Policy 2010-905, for a program to be Canadian, the producer “[m]ust be Canadian, must control and be the central decision-maker of a production from beginning to end.” Foreign executive producers are permitted, but there are rules to ensure that Canadians are the central decision-makers. The proposed wording is therefore directly inspired by the guidelines currently used by the CRTC. The notion of copyright should be broadened (paragraph (a)), so that the criteria apply to all intellectual property rights, including those in musical works and sound recordings.

20 | P a g e Sections of the Act, current version Clauses of Bill C-11 Proposals of the FNCC- CSN, UDA, ARRQ, GMMQ Explanations Regulations

(1.2) The Governor in Council may make regulations prescribing matters that the Commission is required to consider under paragraph (1.1)(e). … (

x) whether a preponderant proportion of the expenses and post-production expenses are for services provided by Canadians or Canadian undertakings. In addition, the notion of Canadian programming must consider expenses that are made by Canadians or Canadian undertakings (in addition to the question of whether key creative positions are held by Canadians). The CRTC currently applies criteria for these expenses. Where public hearing required 18(1) Except where otherwise provided, the Commission shall hold a public hearing in connection with (

a) the issue of a licence, other than a licence to carry on a temporary network operation; (

b) the suspension or revocation of a licence; (

c) the establishing of any performance objectives for the purposes of paragraph 11(2)(b); and (

d) the making of an order under subsection 12(2). Idem

(2) The Commission shall hold a public hearing in connection with the amendment or renewal of a licence unless it is satisfied that such a hearing is not required in the public interest. Where public hearing required 18(1) Except where otherwise provided, the Commission shall hold a public hearing in connection with (

a) the issue of a licence, other than a licence to carry on a temporary network operation; (

b) the suspension or revocation of a licence; (

c) the establishing of any performance objectives for the purposes of paragraphs 11(2)(

b) and 11.1(6)(b); and (

d) the making of an order under subsection 12(2). [No change to subsection 18(2)] Amend subsection 18(1): Where public hearing required 18(1) Except where otherwise provided, the Commission shall hold a public hearing in connection with (

a) the issue of a licence, other than a licence to carry on a temporary network operation; (

b) the suspension or revocation of a licence; (

c) the establishing of any performance objectives for the purposes of paragraph 11(2)(

b) and 11.1(6)(b); and (

d) the making of an order under subsections 9(1) and 12(2). This provision of Bill C-11 severely limits the use of public hearings with respect to conditions imposed on online undertakings through orders. Given that these orders will have a huge impact on Canadian broadcasting policy, there is a need for public hearings. Public hearings are essential. Stakeholder participation in hearings is important so that the CRTC can appropriately balance the financial interests of broadcasting undertakings with public interest in language and culture.

21 | P a g e Sections of the Act, current version Clauses of Bill C-11 Proposals of the FNCC- CSN, UDA, ARRQ, GMMQ Explanations Setting aside or referring decisions back to Commission 28(1) Where the Commission makes a decision to issue, amend or renew a licence, the Governor in Council may, within ninety days after the date of the decision, on petition in writing of any person received within forty-five days after that date or on the Governor in Council’s own motion, by order, set aside the decision or refer the decision back to the Commission for reconsideration and hearing of the matter by the Commission, if the Governor in Council is satisfied that the decision derogates from the attainment of the objectives of the broadcasting policy set out in subsection 3(1).

Setting aside or referring decisions back to Commission 28(1) If the Commission makes a decision under

section 9 to issue, amend or renew a licence, the Governor in Council may, within ninety 180 days after the date of the decision, on petition in writing of any person received within 45 days after that date or on the Governor in Council’s own motion, by order, set aside the decision or refer the decision back to the Commission for reconsideration and hearing of the matter by the Commission, if the Governor in Council is satisfied that the decision derogates from the attainment of the objectives of the broadcasting policy set out in subsection 3(1). Add subsection to subsection 28(1.1): Setting aside or referring decisions back to Commission 28(1) If the Commission makes a decision under

section 9 to issue, amend or renew a licence, the Governor in Council may, within 180 days after the date of the decision, on petition in writing of any person received within 45 days after that date or on the Governor in Council’s own motion, by order, set aside the any decision or refer the any decision back to the Commission for reconsideration and hearing of the matter by the Commission, if the Governor in Council is satisfied that the decision derogates from the attainment of the objectives of the broadcasting policy set out in subsection 3(1).

Bill C-11 does not allow the Governor in Council to review CRTC decisions on obligations imposed on online undertakings. It is worth remembering that during the last French-language licence renewal exercise for the major ownership groups, it was thanks to the Governor in Council’s order that the CRTC’s decision was revised to require that 75% of Canadian program expenditures be dedicated to original French-language programs. This power made it possible to meaningfully protect the unique nature of francophone culture.

N/A The term “English and French linguistic minority communities in Canada” is used in sections 2(3)(b), 3(1)(d)(iii.3), 3(1)(i)(i.1), 5(2)(a), 5(2)(e), 5.1, 5.2 (1) et 5.2(2)

c) of the Broadcasting Act. Replace the expression “the English and French linguistic minority communities of Canada” with “official language minority communities” in the same sections of the Act. We wish to return to the original Bill C-10 language of “official language minority communities” to emphasize the collective reality of the cultural destiny that characterizes these linguistic minorities. The CRTC already uses this term. N/A The term “original French-language programs” is used in sections 3(1)(i.1), 9.1(1)(

c) and 11.1(3) of the Broadcasting Act. Replace “French language original programs” or “original programs in French” with “original French language programs” in these same sections of the act. We wish to clarify that the term refers to programs whose original language is French, not to original programs that are translated into French.

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