Brief presented to the Standing Senate Committee on Transport and Communications in the context of its study on Bill C-11 By the Association des professionnels de l’édition musicale October 12, 2022

apem.ca 2 Table of contents Advocating for the sustainability of Canada’s online broadcasting system 3 Our music is struggling to reach an audience 3 Platforms are constantly recommending content to Canadians 3 Human, algorithmic and algotorial curation: various methods are used to recommend content to Canadians 4 Are we being sufficiently included in recommendations made by platforms? 4 Facilitating the discovery of our music means giving Canadians more choices and fighting against cultural standardization 5 Why amendments to

section 4 are not necessary 6 The words “user-generated content” are not included in the text of Bill C-11 6 Professionals could be considered to be amateur users 6 The CRTC’s authority is clearly defined in several sections of the text 6 Users would not gain anything from changes to sections 4.1 and 4.2 6 If

section 4 is amended, it is the creation and production industry, including artists, and particularly smaller players, that would lose 7 The Act does not regulate: the CRTC must be allowed to do its job 7 The system cannot evolve without a flexible CRTC 7 The Anglophone and Francophone markets have different regulatory requirements 7 The music and audiovisual sectors have different regulatory requirements 8 Lobbying by platforms is very manipulative 8 The strategies being used are similar to the strategies used in Europe in 2019 8

apem.ca 3 Advocating for the sustainability of Canada’s online broadcasting system A sustainable system is only possible if fair and equitable measures are taken to ensure that the Broadcasting Act also applies to online broadcasters . Essentially, we want the CRTC to have clear jurisdiction to make three demands of online broadcasters: 1. Transparency with respect to their activities in Canada , by providing information to the CRTC; 2. Requiring online broadcasters to contribute to funding for Canadian content; 3.

Requiring online broadcasters to showcase and recommend our music when recommending music to Canadians. We would like the Act to enable the CRTC to level up the regulatory framework rather than regulate our system. Our music is struggling to reach an audience The market share of music from Quebec has declined drastically over the past few years. For many years, our market share hovered around 50% of record sales. According to figures provided by Luminate and compiled by ADISQ, the market share of Quebec music on online music streaming services in Quebec stands at only 8% and falls to 5% for local French music.

This decline has also been noted for Canadian music. Figures from SOCAN show that 34% of royalties collected on traditional media is distributed to SOCAN writer members while barely 10 percent of royalties is distributed to Canadian songwriters and composers through digital media. Platforms are constantly recommending content to Canadians Recommendation tools (human, algorithmic and algotorial curation, etc.) are key to enabling music enthusiasts to navigate platforms which may contain up to 100 million songs. “ Do you know that 80 percent of all of watch time is recommended by YouTube?

That’s one of the biggest misconceptions. Everybody thinks that all the music that’s being listened to and watched is by search” confirms Lyor Cohen, Global Head of Music at YouTube. According to a study by Pew Research Center concerning recommendations made by YouTube, “The bulk of the videos recommended during these random w alks were quite popular – 64% of the recommendations went to videos that had more than 1 million views at the time. At the same time, 5% of the recommendations went to videos that had fewer than 50,000 views when they were recommended.”

apem.ca 4 We need the CRTC to conduct its own investigations with Canadian figures, but these numbers give us a general overview of the importance of these recommendation tools and their settings, which are not adapted to the reality of our market. Human, algorithmic and algotorial curation: various methods are used to recommend content to Canadians Human curation is very important: every day, professionals in our industry try to have their songs included in playlists, as per the practice on radio.

All the major platforms have teams that manage relationships with the music industry and which are notably responsible for editorials. Algorithmic curation, which essentially consists of recommending content using IT tools, is also very much in play, but is used to varying degrees by undertakings. For example, YouTube makes much greater use of algorithmic curation than Qub musique. Algotorial (a contraction of the words “algorithmic” and “editorial”) curation is also used frequently and essentially consists of an editorial recommendation tool that makes use of algorithms.

For example, Spotify suggests songs identified as priority tracks by the platforms as well as pieces you already lik e. The same is true at Apple Music, which talks about combining machine learning and human curation, while for YouTube, algotorial means algorithmic playlists, with editorial parameters determined in collaboration with the team at YouTube Music. An

article entitled Streamers Use Playlists to Control the Music Industry addresses the power of online music streaming services and their playlists. “Increasingly, however, obeying nudges from streaming platforms, subscribers listen to pla ylists prepared by algorithms or human curators instead of making their own selections. [...] By nudging listeners toward playlists, Spotify is also training us to outsource our decisions about what to listen to. The more listeners automatically head to Sp otify's ¡Viva Latino! or Baila Reggaeton or Rock Classics, the more streaming comes to mimic radio.

The difference is that with radio there were thousands of DJs deciding what to play, including many that were passionate about breaking new local talent. With streaming, just one faceless global giant programs each channel.” Are we being sufficiently included in recommendations made by platforms? The CRTC should be empowered to examine this question with data, but there is reason to suspect that the level of recommendations is not enough to support a strong and dynamic Canadian music industry, when many are speaking out to denounce the standardizing influence of the recommendation tools used by platforms.

The primary objective of the se undertakings is to make a profit and they do not have a natural interest in ensuring the diversity of Canadian cultural expression.

apem.ca 5 Moreover, the recommendation tools used by online music streaming services are biased. A report entitled Economics of music streaming by the United Kingdom House of Commons mentions “payola”, in paragraphs 149 to 153, which is a form of corruption whereby payment is required in order to be included in playlists programmed by humans.

The report also raises concerns about algorithmic playlists. “The BPI has noted that algorithms can disadvantage UK artists where they are based on global play counts given that territories with relatively larger populations can skew towards their own domestic artists ” (p.79). If the British Phonographic Industry is concerned , then perhaps we should be concerned as well , e specially Francophones, Indigenous peoples and other groups seeking equity. Lastly, another very interesting

article entitled Music Streaming: Is It a Level Playing Field? highlights the fact that not everyone is given the same opportunity to find an audience . “Music that doesn’t fit easily within an establishe d genre, or which is not in the English language, is also likely to be competitively disadvantaged.” Facilitating the discovery of our music means giving Canadians more choices and fighting against cultural standardization An

article entitled Artificial Intelligence, Music Recommendation, and the Curation of Culture published by the University of Toronto Schwartz Reisman Institute for Technology and Society (SRI) clear ly explains the effects that platforms would have on the diversity of cultural expressions if left unchecked: “The effect of the extreme centralization of the global platforms is that it may become harder for local musicians to have their music heard even in their own communities.

Recommendation systems therefore have the potential to act as a neocolonialist force in music, trained on data in which dominant user demographics are over -represented, and using the tastes and preferences embedded in this data to guide the music consumption of other musical cultures” (p.13). Online music streaming services choose what is recommended to Canadians based solely on their financial interests. Unfortunately, these undertakings have little financial interest in paying attention to local music and the diversity of cultural expressions.

Many users of online music streaming services are children or teenagers who are not familiar with our music because they are not exposed to it online , which is their preferred way of accessing music. If we are not even giving Canadian music a chance to reach audiences, then we are not even giving public audiences an opportunity to form an opinion about our music. Our music is not only rich and diverse, but also of high quality. We have no doubt that it would be greatly appreciated by Canadians, if only they were able to discover it.

apem.ca 6 Why amendments to

section 4 are not necessary The words “user-generated content” are not included in the text of Bill C-11 The bill instead refers to content uploaded by users, a reference to the process of placing material online rather than a type of content. If content uploaded by users was excluded from the text of the bill, the same song could be treated differently in the eyes of the law, simply because of the process used to place it online (uploaded by a distributor or uploaded by a user). The Act would not be technologically neutral and could become obsolete as soon as it is adopted.

Professionals could be considered to be amateur users From the point of view of undertakings, the concept of a “user” means anyone who uploads content to a platform, which could include professional artists and small businesses . A significant portion of Canada’s music industry fails to achieve numbers that are high enough for platforms to recognize material as professional content. It is important to understand that platform fees do not take into account the small size of many Canadian markets, including the Francophone market , groups seeking equity, emerging artists or niche music.

If additional amendments are made, platforms could try to claim that the commercial content of professional artists falls under content uploaded by users and therefore falls outside the jurisdiction of the CRTC. The CRTC’s authority is clearly defined in several sections of the text Le CRTC can only regulate undertakings, the legislation does not apply to individuals. The CRTC cannot regulate non -commercial content uploaded by users and, to the best of our knowledge, no such request has been made.

Sections 2.1, 2.2, 2 (3), 5 (2) (a.1), 5 (2) (h), and 9 (4) are clear and provide a framework for the CRTC’s authority, notably in light of impacts on the creation and production industry and the Broadcasting Policy for Canada. Users would not gain anything from changes to sections 4.1 and 4.2 Tech companies would be the only winners in the event of amendments to

section

Section 4 authorizes the CRTC to define what commercial content is, based on specific criteria, which have been clarified in the text of Bill C-11 following discussions surrounding Bill C-10. The current situation enables the CRTC to collect information – and this is a key point – which is exactly what the platforms would like to avoid . If the CRTC is left in the da rk, any possibility of regulation can be avoided both now and for many years to come.

apem.ca 7 The CRTC will regulate on the basis of information and following a public process, during which all stakeholders can be heard, and the CRTC will certainly not want to hurt any creators. If

section 4 is amended, it is the creation and production industry, including artists, and particularly smaller players, that would lose Amending

section 4 risks creating a loophole that favours social media, but any such amendment would impact all undertakings within the Canadian broadcasting system. If exemptions under the Act apply to part of the activities carried out by YouTube and TikTok (two companies that are unavoidable in the music sector), this would level down regulation of their competitors, such as Spotify, Apple Music, etc. , and traditional radio will then point to the competition in order to try to obtain the deregulation that it is already seeking. If

section 4 is amended to create a loophole, it is the creation and production industry, including artists, and particularly the most vulnerable which C -11 is supposed to help in the first place, that would lose. The Act does not regulate: the CRTC must be allowed to do its job The main arguments against this reform concern regulation by the CRTC rather than the text of the bill which is under study in the Senate.

Attempts are being made to raise fears about the bill so t hat the CRTC will not be given the authority to collect information; attempts are being made to block certain discussions, as if the platforms have something to hide. The system cannot evolve without a flexible CRTC This Act could be in effect for decades. If too many specific elements are provided in the text of the bill, the Canadian broadcasting system would become inflexible and thereby lose the adaptability that it needs to adjust to rapid changes in our sector.

The Anglophone and Francophone markets have different regulatory requirements We would like to point out that the CRTC currently applies different regulatory requirements to English-language and French-language radio stations, as the latter have an additional quota based on language, on top of a quota for Canadian content.

Section 3 of Bill C -11 makes several references to the difference between the Francophone and the Anglophone markets, and the need to support minority communities. We can therefore envisage the CRTC maintaining i ts current approach and regulating different markets differently.

apem.ca 8 The music and audiovisual sectors have different regulatory requirements The CRTC uses a different approach for the audiovisual sector and the music sector. Business models in our industries are quite different, as are the relevant needs. For example, producing audiovisual content is generally much more expensive than producing musical content and music is remunerated on a per -play basis, which is generally not the case in the audiovisual sector. Moreover, the definition of Canadian audiovisual content is completely different from the definition of Canadian musical content.

Lobbying by platforms is very manipulative Platform-led campaigns against Bill C-11 have been able to sow confusion and mislead, and unfortunately, many people, including creators, tend to believe what the platforms are saying. As mentioned earlier, the campaigns are based on raising fears and highlight potential issues related to regulation by the CRTC while failing to focus on the text of the bill that is currently under study in the Senate . Some undertakings are simply trying to limit the CRTC’s jurisdiction in order to avoid having to share information with this body.

The strategies being used are similar to the strategies used in Europe in 2019 In 2019, A European copyright directive faced an unprecedented lobbying campaign by tech companies, which is very similar to the campaign being led by platforms in Canada vis -à-vis Bill C-11. Their tactics relied heavily on the involvement of third parties ; Google was notably reported to have invested €31M in both direct and indirect lobbying efforts. Several NGOs (such as Electronic Frontier Foundation) were mobilized and a major disinformation campaign was launched with the help of YouTubers.

Even Wikipedia, which is linked to G oogle, was mobilized. An

article entitled Big Tech Turns Its Lobbyists Loose on Europe, Alarming Regulators, which appeared in the New York Times , is based on a leaked document that describes the tactics used by these companies, including mobilizing “academic allies” and unprecedented spending . A report by Lobbycontrol refers to €97M invested annually in Europe, notably through a funded think tank network. A similar pattern can be noted in terms of what is currently happening in Canada.

Similar arguments have been made (e.g., censure, the end of Internet neutrality, government control, etc.), even though the issue of copyright is completely different from br oadcasting. Information has been misleading and creators have been mobilized. An

article entitled “Canary in the coal mine: TikTok presentation shows big tech’s influence on Bill C-11 debate” makes mention of a disinformation primer organized during a presentation by Digital First Canada and TikTok, which targeted creators of online content . Another

article refers to an appeal launched by YouTube in efforts to mobilize its creators against Bill C-11. Several

apem.ca 9 academic allies of these platforms have spoken out against Bill C-11, including some that have already received funding from YouTube in particular . Open media re ceives funding from Google, while Digital First Canada receives funding from YouTube and Tiktok, and it is highly likely that other groups are acting in support of platforms.