1 Submission to the Standing Senate Committee on Transport and Communications Recommendations by the Directors Guild of Canada about Bill C-11,

An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts October 31, 2022

2 The Directors Guild of Canada (DGC) appreciates the opportunity to submit written recommendations with regards to government Bill C-11, “The Online Streaming Act.” This submission expands on some issues of particular interest and concern to the DGC present in Bill C-11. The Directors Guild of Canada is a national labour organization that represents key creative and logistical personnel in the film, television and digital media industries.

It has approximately 6,000 members drawn from 47 different craft and occupational categories covering all areas of direction, production, editing and design of screen-based programming in Canada. I. Video streaming has become the norm in Canada In three decades, Canada’s Broadcasting has contributed to build an industry that employs today 215,000 people1, from 132,000 in 2011. But the shift from conventional television to digital has redefined the dynamics of our domestic production industry.

According to a 2021 survey2, Canada has become the fifth streaming nation - out of nineteen - with over 61% of Canadians who are subscribed to at least one streaming service. The same year, and for the first time in Quebec, the proportion of adults with a subscription to a video streaming service exceeded the group with a cable subscription3. The popularity of online streaming has led to consistent revenue decline for Canadian television broadcasters which in turn has made the funding of Canadian programming more and more challenging.

The CRTC recently reported4 that BDU5 sector contributions to Canadian programming are down 21.3% compared to 2012.

Despite that reality, the CRTC maintained the Digital Media Exemption order6 during the past decade as Canadian audiences and revenues massively moved online. 1 CMPA’s Profile 2021, Economic Report on the Screen-Based Media Production Industry in Canada, https://cmpa.ca/wp-content/uploads/2022/04/Profile-2021-EN.pdf 2 Finder Survey, Most popular streaming services, August 18, 2021, https://www.finder.com/ca/most-popular-streaming-services. 3 71% of Quebec adults had a subscription to video streaming service in 2021, while only 61% of Quebec adults had a cable TV subscription.

Portrait numérique des foyers Québécois, Académie de la transformation numérique. https://api.transformation-numerique.ulaval.ca/storage/584/netendances-2021-portrait-numerique-des-foyers-quebecois.pdf 4 Annual Highlights to the Broadcasting Sector (2020-2021), https://crtc.gc.ca/eng/publications/reports/PolicyMonitoring/2022/rad.htm#a2 5 Broadcasting Distribution Undertakings (BDU) 6 Broadcasting Order CRTC 2012-409

3 The new Act is a response to this changing landscape, ensuring that foreign online streaming services also contribute to the creation of original Canadian programming, thereby restoring support for Canadian programming. II. An adaptable regulatory system The Online Streaming Act builds on the existing Broadcasting Act and would create a more adaptable regulatory system.

By naming Bill C-11 the “Online Streaming Act”, the government made it very clear that its primary objective (as in C-10) is to bring online broadcasting, and particularly influential foreign streaming television, film and music services such as Netflix, Disney+, Amazon, and Google, under the regulatory tent of the Broadcasting Act. In doing so, the Bill gives additional powers to and clarifies the authority of Canada’s communication and media regulator, the Canadian Radio-television and Telecommunications Commission (CRTC).

The partisan fights stemming from Bill C-10 and today Bill C-11 come, at least in part, from apparent confusion surrounding the actual scope of proposed online broadcasting regulation and the actual limitations. Both Bill C-10 and C-11 have been described as regulatory overreach by internet advocacy groups. But the scope of Bill C-11 and what it promises to achieve is significantly narrower than critics would like to suggest. Some Bill C-11 critics claim that broadcasting activities on the internet cannot be regulated.

This is simply not true, as examples abound of legislation encompassing the internet in both Canada and foreign jurisdictions. C-11 merely confirms the Commission’s ability to regulate broadcasting in a technology neutral and platform-agnostic manner. While Canada’s legislative framework for regulating the Internet is still to be settled, the European Union has already developed a number of directives to harness the power of large multinational internet platforms. This includes adoption of the General Data Protection Regulation (GDPR) in 2017 and more recently the Digital Services Act7 (DSA).

Bill C-11 also provides additional data collection powers for the CRTC. It is no secret that the largest players in the platform economy, social media platforms, act as a Trojan horse in building audiences off user generated content and capturing demographic and other data 7 In 2019, the European Commission launched the process for the adoption of new media legislation: the Digital Services Act package (DSA) to modernize the current legal framework for digital services: https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package

4 with the goal of feeding advertising tools. Unlike streamers, they are not content providers or commissioners in the traditional sense, despite their attempt to portray themselves as the defenders and enablers of digital creators. Making Canadian content discoverable online The Online Streaming Act touches on internet governance and artificial intelligence governance, but without elaborating concepts such as algorithms. The concept of discoverability comes from an observation: how do you create an organic connection of Canadian storytellers with global audiences?

The argument that some Canadian YouTube creators have found global audiences does not counter the reality that Canadian television programming continues to face enormous challenges in finding audiences abroad and at home. Algorithms on large platforms serve content to their users based on what those users have already watched or already know. By supporting and promoting Canadian content, Bill C-11 will provide Canadians with more content choices and diversity. For example, there is little awareness of Canadian film, something “the market” will not solve, but C-11 could help increase.

Many in the creative sector describe discoverability measures as a means by which public policy can help “push Canadian content” to audiences. Large content distribution platforms such as YouTube and TikTok say that their strategy is the opposite: it’s a “pull” strategy where the audience chooses and pulls the content. DGC’s view is that both can and should coexist. Requiring platforms to make Canadian content more discoverable, be it through promotion in banners or search results, restricts no choices for Canadians –rather it enables greater choice.

Ian Scott, the CRTC’s chairman, has stated that Bill C-11 is not about regulating algorithms but rather, asking platforms for a result: demonstrate how Canadians can find Canadian content online. And we think that is perfectly reasonable. It’s an appropriate step to make global platforms more accountable to Canadians. III. Bringing back Canadian creators to the centre of the broadcasting ecosystem The historic robustness of the Canadian broadcasting system and the success of the independent production industry is not an anomaly nor an accident.

It has been achieved by a balance between economic and cultural objectives, translated into regulation and conditions of licence established according the Broadcast policy set out in the Act.

5 Canadian storytelling and the careers of Canadian storytellers have been made possible by Canadian programming requirements. The DGC sees Bill C-11 as the vehicle to preserve these principles in the digital era. Indeed, the federal government has been clear with such intentions since the beginning of the legislative process: making sure that Canadian creators can continue to thrive in the digital era.

Heated debates surrounding C-11 and the myriad of competing amendments risk losing sight of this objective, and the reason why we have a Broadcasting Act in the first place: create the conditions to produce high-quality Canadian programming and ensure the future of our artists and creators. The DGC considers that the use of Canadian creative resources and the preservation of Canadian authorial voices remains paramount to the meaning of Canadian programming, and central to the Broadcasting Act. The Canadian broadcasting system has multiple dimensions.

One of them is the definition of a Canadian program and the reason why there is a system in the first place, but also the justification of why support for original Canadian programming, owned, created by and featuring Canadian talent and stories, should have a place in the future. Canadian creators are not only the starting point of the creation of intellectual property, they are at the heart of what makes audiovisual programs uniquely Canadian.

The 2017 Creative Canada Policy Framework8, made “investing in Canadian creators” central to its first pillar, stating “The talent, skill and imagination of our Canadian creators and cultural entrepreneurs is the raw material of our creative industries. Our priority is to invest in them and in their ideas.” Directors are key Canadian creators, and remain central to the achievement of Canadian programming goals under the Broadcasting Act. Continuing to nurture Canadian authorial voices supports the objectives of the Act, and prevents a massive drain of talent to our southern neighbour.

Scripted content and documentary filmmaking are the best examples of what a successful cultural policy does. Over the years, the broadcasting system made possible popular television shows such as Schitts’s Creek, feature films like Beans or Brother and 8 Creative Canada Policy Framework, https://www.canada.ca/en/canadian-heritage/campaigns/creative-canada/framework.html

6 documentaries like Manufactured Landscapes or Navalny that share the uniquely personal point of view of their Canadian creators. Film and television content can have a lasting impact on the development of national identity and shared culture and consciousness. In other words, the economic and cultural imperatives should work hand in hand to make a good public policy. Bill C-11 was significantly amended by the Standing Committee on Canadian Heritage in June. The DGC welcomes some of the amendments that were made with regard to the Canadian ownership of the system and data collection on industry members.

However, additional amendments still need to be adopted to ensure that Canadian creators and artists will not lose the gains and protections from the 1991 Broadcasting Act, namely, the policy principles that led to the creation of Canadian Programming Expenditures (CPE) and Programs of National Interest (PNI). The perils of a two-tiered legislation The legislative intent of Bill C-11 is to be agnostic and apply in an equitable manner to all broadcasters, regardless of the means of delivery. However,

Section 3(1)(f), subsection 3(1)(f.1) and

section 31.1 set different standards between foreign online undertakings and their licenced Canadian counterparts. The DGC is deeply concerned that this may impact the future careers of Canadian artists and storytellers, but also weaken the foundation of Canada’s broadcasting system that suggests an equitable treatment for all Canadian artists and creators. The direction towards deregulation in Bill C-11 contradicts the Government intention to “level the playing field”.

Section 3(1)(f) – the requirements to use Canadian talent As initially drafted, Bill C-10 removed the requirement in the Broadcasting Policy for Canada to make maximum-but-not-less-than-predominant use of Canadian creative and other resources in the creation and presentation of programming, in order to integrate foreign online streaming platforms to the system. Later at the Committee stage in 2021,

section 3(1)(

f) of the Act regarding Canadian talent was broken down in two paragraphs9 - 3(1)(f) 9 Paragraphs 3(1)(

f) to (

h) of the Act are replaced by the following: (

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;

7 and 3(1)(f.1) - providing distinct rules for Canadian broadcasters and foreign online undertakings. In Bill C-11, sections 3(1)(

f) and 3(1)(f.1) remain unchanged. There is now a large consensus and united front among music and audiovisual organizations from both language markets that

section 3(1)(

f) should be amended to establish reinforced requirements to use Canadian talent. Opening the once closed system to allow foreign online undertakings to operate under the Canadian regulatory framework will require domestic and foreign online services to be treated in a comparable way. This objective is achieved by using a common definition of a Canadian program for both domestic and foreign online undertakings. The DGC believes that

section 3(1)(f), as initially drafted and as later amended in Bill C-10, represented a weakening of the position of Canadian creators in the Broadcasting Act framework, especially directors, as key creatives. Realistically, in a new open system, we recognize the circumstances for foreign online players may differ but are not inconsistent with the expectation to comply with the requirement for maximum-but-not-less-than-predominant use of Canadian creative resources in the creation and presentation of some of their programming offered in Canada. The language in 3(1)(

f) and 3(1)(f.1) creates a tiered system lowering the priority to make use of Canadian talent and other resources, and appearing to abolish the principle of equitable contribution of different undertakings. While the DGC recognizes the need to rewrite

section 3(1)(

f) of the current Act, this should not be done in a way that diminishes the role of Canadian creators. Accordingly, the DGC proposes, alongside dozens of peer industry organizations, the following, both applicable to domestic and foreign online undertakings: (

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 Canadian programming, and shall contribute significantly to the creation and presentation of Canadian programming to the greatest extent that is appropriate for the nature of services provided by the undertaking; (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, in accordance with the objectives of the broadcasting policy set out in this subsection and taking into account the linguistic duality of the market they serve;

8 The advantage of not setting different rules for domestic and foreign undertakings is to allow two realities to coexist, while maintaining the principle of maximum-but-not-less-than-predominant use of Canadian talent. The proposed wording expressly specifies that this requirement is applicable to Canadian programming, as part of a system-wide objective to support Canadian programming, which already applies to private broadcasting undertakings as expressed in

Section 3(1)(s)10 of the Act. The two requirements would appropriately apply to all online broadcasting undertakings, including foreign, operating in Canada, unless otherwise exempt.

Section 3(1)(

f) remains the lifeblood of the Canadian broadcasting ecosystem and it is imperative not to lower the standard for requirements to use Canadian talent and creative resources in, at least, Canadian programming. The current approach to and

definitions of Canadian programs has served us well, and should remain the bedrock of a future legislation. It should also be recognized that 3(1)(

f) has been an essential policy component that provided enough flexibility to broadcasters for decades and is adaptable to various business models and types of programming. In other words, this is an opportunity to strengthen the new Act through robust requirements to use Canadian talent, which would not only support the development and expression of Canadian artists and creators, but also generate social and economic benefits for Canadians.

The Federal Status of the Artist Act should apply to all broadcasting undertakings A last-minute amendment11 was made last June to exempt all online undertakings from the provisions of the Federal Status of the Artist Act (SAA). No rationale was provided. This amendment,

section 31.1, represents a setback for labour relations, leaving the status of artists in a grey zone: The loss of a fundamental right for artists to associate and be fairly compensated for their work with online undertakings. 10 3(1)(

s) private networks and programming undertakings should, to an extent consistent with the financial and other resources available to them, o (

i) contribute significantly to the creation and presentation of Canadian programming, and o (ii) be responsive to the evolving demands of the public; 11 31.1

Section 6 of the Status of the Artist Act is amended by adding the following after subsection (2): Non-application

(3) This Part does not apply in respect of an online undertaking, as defined in subsection 2(1) of the Broadcasting Act.

9 Enacted 25 years ago, The SAA has guaranteed the right to bargaining, with the goal to improve the economic and social status of professional artists because of the precarious nature of artistic work. In particular, the Act recognizes the “important contribution of artists to the cultural, social, economic and political enrichment of Canada12”. Removing these protections contradicts one of Canada’s Broadcasting Act objectives that is to “reflect the circumstances and aspirations, of Canadian men, women and children, including equal rights13”.

This would clearly threaten future collective bargaining, especially given the power imbalance between Canadian artists’ unions and powerful global studios. The SAA applies to federally regulated institutions such as the CBC and the National Film Board, as well as to all broadcasters. Because broadcasting is of federal jurisdiction, the SAA currently applies equally to all broadcasting and distribution entities who operate in Canada and directly hire Canadian artists. The non-application of the SAA to online broadcasting undertakings would disrupt the industry status quo.

With this exemption in place, Canadian artists engaged by online undertakings may no longer be protected by collective agreements. This would disrupt the stability of our industry. Canadian directors, writers, performers and composers will find themselves in a divided system, faced with the choice of different working terms and conditions. In the current production ecosystem, Canadian broadcasters and foreign online streaming platforms routinely commission programming through Canadian local independent producers that are themselves subject to provincial labour laws.

If a Canadian or foreign online undertaking decides to produce content in-house, without a Canadian producer playing the role of an intermediary, why should they not abide by the Federal Status of the Artist Act? – especially when licenced Canadian broadcasters will remain subject to it. The DGC would like to work with the Standing Senate Committee on Transport and Communications to find a solution. To do so, we are submitting the following amendment to

section 31.3 of the Bill that would eliminate this double standard: 12 Federal Status of the Artist Act,

Section 2(b). 13 Broadcasting Policy for Canada, 3(1)(d)(iii), “through its programming and the employment opportunities arising out of its operations, serve the needs and interests, and reflect the circumstances and aspirations, of Canadian men, women and children, including equal rights, the linguistic duality and multicultural and multiracial nature of Canadian society and the special place of aboriginal peoples within that society”

10 “This Part applies to an online undertaking, as defined in subsection 2(1) of the Broadcasting Act, or an affiliate, only where it directly produces a program in Canada, without an intermediary, and engages one or more artists in Canada.” IV. Appeal to the Governor in Council The theme of ensuring the CRTC has the necessary resources, expertise and accountability to implement C-11 was one raised by a number of witnesses.

For DGC’s part, while we may have not agreed with all CRTC decisions, we believe it generally has a good track record in supporting Canadian programming, while balancing the interests of many different stakeholders. The current appointment process provides an excellent opportunity to ensure the CRTC has the right leadership going forward to implement C-11, while continuing to deal with its normal slate of communications issues.

In particular, as the Chair is also the CEO, we trust the Governor in Council (GiC) will appoint someone with expertise in broadcasting and significant operational/management experience – to ensure both informed and timely decision making. The Commission does not operate in a vacuum, however. The power of direction provides an important vehicle for government to provide general policy guidance. Cabinet Appeals and judicial review provide direct accountability, in allowing CRTC decisions to be challenged on legal and/or policy grounds.

As exemplified by the recent appeals to the GiC with regard to the CRTC decision on CBC licence renewal, the DGC believes that appeals to the GiC can strengthen trust in CRTC decision making, by giving elected officials ultimate authority to judge whether CRTC broadcasting decisions appropriately conform to Canada’s Broadcasting Policy. While the power to review and vary or send back is and must be used sparingly, it remains an important check and balance.

We note that C-11 already includes a proposed amendment to s. 7 which would provide the Governor-in-Council with the power of direction in regard to orders and regulations. Under the scheme of the new Act, however, CRTC “orders” will now also be used in respect of “particular” broadcasting undertakings – in a manner more akin to conditions of licence.

Thus, for the Committee’s consideration, we respectfully submit the following proposed amendment which would have orders in respect of particular undertakings subject to Cabinet appeal rather than direction, as is the case for licences (issued to specific undertakings).

11 7(2) No order may be made under subsection (1) in respect of (

i) the issuance of a licence to a particular person or in respect of the amendment, renewal, suspension or revocation of a particular licence; or (ii) the making of an order to a particular person carrying on a broadcasting undertaking or in respect of imposing conditions on the carrying on of a particular broadcasting undertaking 7.1 For greater certainty, orders may be made under

section 7 subsection (1) with respect to the regulations of general application made under subsection 10(1) or 11.1(1). 28

(1) If the Commission makes a decision under

section 9 to issue, amend or renew a licence, or under

section 9.1 or 11.1 to make orders imposing conditions on the carrying on of a particular broadcasting undertaking, 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 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).

We thank the Chair and the members of the Standing Senate Committee on Transport and Communications for the opportunity to provide a first written submission about the Bill C-11, the Online Streaming Act. We remain available should you have any questions. Sincerely, Dave Forget National Executive Director Directors Guild of Canada