Submission of the Internet Society Canada

Chapter to the Senate of Canada Standing Committee on Transportation and Communications Pre-study of Bill C-11: Online Streaming Act September 14, 2022 !

Internet Society Canada

Chapter Pre-study of Bill C-11 Submission to the Senate of Canada Online Streaming Act Standing Committee on Transportation September 14, 2022 and Communications Page 1 Who we are 1. The Internet Society Canada

Chapter (ISCC) is a not-for-profit organization that engages in internet legal and policy issues to advocate for an open, accessible, and affordable internet for Canadians. An open internet means one in which ideas and expression can be communicated and received except where limits have been imposed by law. An accessible internet is one where all persons and all interests can freely access websites that span all legal forms of expression. An affordable internet is one by which all Canadians can access internet services at a reasonable price. The Objectives of C-11 2.

Bill C-11 has, in our estimation, four key objectives – not all of which have been articulated or explained by the Government. They need to be considered individually. As we understand it, the following are the key objectives of C-11: a. To give recognition to and support important constituent parts of Canadian society, and to highlight the importance of reflecting them within the Canadian broadcasting system: these include Indigenous societies and languages, French and English minority language communities, and 2SLGBTQ+ and BIPOC communities; b.

To require Internet streaming services to contribute to the financing and production of uniquely Canadian programming; c. To create a level regulatory playing field between online streaming services and traditional broadcasters; and d. To increase the ability of the Government to insert itself into the regulation of both broadcasting and internet content services, thereby reducing the independence of the CRTC and curtailing Parliamentary oversight of the use of the power of direction. ISCC’s Position on C-11 3. ISCC’s position on the objectives of C-11 are as follows: a.

ISCC agrees with and supports the extension of Canada’s broadcasting policy to recognize and support further elements of Canadian society. This initiative builds on and expands the recognition offered by the 1991 Broadcasting Act to the diversity of Canadian society and the need for that diversity to be reflected through the programming that is offered by our broadcasting system. b. ISCC supports a requirement that the major online streaming services, those that derive significant revenues from the Canadian market for Internet content, contribute to the creation of uniquely Canadian programs.

Unfortunately, C-11, despite this objective, makes no effort to confine its application to the major streaming services: C-11 expands broadcasting regulation to all audio and audio-visual services on the

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Chapter Pre-study of Bill C-11 Submission to the Senate of Canada Online Streaming Act Standing Committee on Transportation September 14, 2022 and Communications Page 2 Internet without regard to the size, market impact, importance of the content to audiences, or the purpose of the content or its provider. ISCC is therefore forced to oppose the approach of C-11 – an approach that fails to clearly differentiate between a podcast produced in a residential basement and a major release motion picture featured on Netflix. c.

ISCC is fundamentally opposed to the regulation of the Internet as broadcasting: it is neither possible nor beneficial. Internet streaming services are simply not broadcasting. For that reason, a ‘level playing field’ between traditional broadcasters and online streaming services is illusory. In arguing for a "level playing field#, those who benefit from the current regulatory system – Canada#s incumbent broadcasters and the producers who supply them with "certified Canadian content’ (CanCon) – are seeking a continuation of their privileged policy, regulatory, and economic treatment.

ISCC contends that those private interests are neither aligned with, nor reflective of, the public interest, meaning the interests of Canadians. d. ISCC opposes the enormous increase of the power of Cabinet in intervene in all levels of CRTC decision making. Under C-11 it is possible for the Government to direct that the CRTC issue specific orders directed at a single regulated entity – a result that is contrary to all principles of law making. ISCC equally opposes the diminution of Parliamentary oversight of Cabinet’s use of the power of direction. The Structure of this Submission 4.

In this Submission, we elaborate our reasons for opposing the present incarnation of C-11. ISCC hopes that it may persuade those of open mind that C-11 is contrary to the interests of Canadian consumers, Canadian creators, the Canadian economy, and Canadian culture and identity writ large. 5. In the Annex to this Submission, we suggest changes limit the harm C-11 poses to both internet-based services and to Canadian users of the internet. Our intent is twofold.

First, to protect the interest of Canadians who use the internet to communicate, learn, gain exposure to differing views, and be entertained according to their personal tastes and interests. Second, we seek to safeguard the interests of those who choose to use the internet for the free expression of their culture, beliefs, and opinions – including those of Canada’s digital-first creators who are achieving success in the global online market – promoting Canadian content – outside the protected CanCon system of subsidized-supply-for-regulated-demand.

Bill C-11 is Fundamentally Flawed: Internet Streaming is Not Broadcasting 6. The term “broadcasting” has a defined meaning in most dictionaries. Either there are a set of attributes that make broadcasting a defined concept, a limited set of things or systems, or broadcasting has the widest possible generality. In the latter case, broadcasting could devolve to mean any form of communication that Parliament says it is, without regard to the actual

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Chapter Pre-study of Bill C-11 Submission to the Senate of Canada Online Streaming Act Standing Committee on Transportation September 14, 2022 and Communications Page 3 attributes and properties of the subject matter. In short, by this reasoning, Parliament could declare email to be broadcasting. Or a written letter could be “broadcasting” and its contents regulated by the state. By defining broadcasting to capture vast amounts of transactional communications over the Internet, Bill C-11 as written expands the definition of “broadcasting”, and the application of the Act, beyond sense or reason. 7.

Broadcasting, as the word suggests, and as people have understood it, involves one person (the broadcaster) speaking to many thousands (the audience) via radio and television technology. The direction of traffic is one way. The audience has limited choices in what it can hear or view, and in when and where they may hear or view it. The audience is captive, apart from the ability to change channels (very limited in the heyday of radio and television) or to shut off the receiver.

Broadcasting regulation therefore had two purposes: to protect the airwaves from harmful interference; and to protect the public audiences from the misuse by broadcasters of their near monopoly power to imperil public morals, transgress social norms, or attempt to influence political opinion. 8. In Canada, the current broadcasting world consists of approximately 4000 licensees regulated by the CRTC.

There is an implicit bargain between the holders of broadcasting licences and their regulator: the licensee will obey the myriad rules imposed by the regulator – in return the regulator will protect the economic interests of the licensee. This regulatory bargain is still reflected in paragraph 3(1)(

b) of the Broadcasting Act. 9. Traditional broadcasters benefit from a host of regulatory and legislative measures that have created a walled garden around them and their supply chains. These benefits include ‘simultaneous substitution’ (protecting the commercial value of their rights to broadcast foreign programing), tax penalties for Canadians advertising on US stations, genre protection (that limits competition), regulatory barriers to entry (restricting new licences that might impact the profitability of existing licensees).

Licences are issued, and their ownership transferred, by means or regulatory beauty contests, with each participant trying to show how perfectly their promises of performance will meet the regulatory agenda of the CRTC. 10. This tightly regulated world was blown apart by the Internet. C-11 seeks to reverse the effects of this technological and business revolution. By declaring virtually all audio- and audio-visual content on the Internet to be broadcasting, the closed system of few voices — which is the basic idea of broadcasting – can be made perpetual. (As originally conceived under Bill C-10, the

definitions were so vast that they had to be amended, in s. 2.3, to specifically exclude business information and client services, as well as educational institutions, museums, and performing arts venues that use audio and audiovisual content online. Yet C-11 still captures all other online audio and video worldwide, that Canadians access.) It is a kind of reverse takeover of the Internet. The Canadian broadcasting system – tiny in the scheme of things – can take on the world of the Internet by the mere trick of redefining “broadcasting”. 11.

Where broadcasting was one voice speaking to many, the Internet permits variable means of speaking. The vast bulk of audio and audio-visual content on the Internet is accessible only

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Chapter Pre-study of Bill C-11 Submission to the Senate of Canada Online Streaming Act Standing Committee on Transportation September 14, 2022 and Communications Page 4 on demand – that is, as transactional, private, point to point communications requested by the recipient. The audience is not captive. There are always other voices to be heard. Except for live streaming, the listener or viewer chooses what, when and where to hear. When speaking of the so-called web giants – the streamer does not choose what will be heard or viewed.

The individual audience member is in a private relationship with the transmitter of the content. In effect, each audience member self-curates the programming they will consume. Expressive power is held by the consumer. Audio and audio-visual material on the Internet is narrowcasting in its purest form – the precise opposite of broadcasting. 12. Of course, this only true if “broadcasting” has a real and true definition grounded in fact. C-11 does its best to eliminate any technological, business, or other attributes that make broadcasting definable.

In C-11, broadcasting is a “program”, and a program is full-motion visual, audio, or audiovisual communication. It can be encrypted, and therefore available only to those with decoders. It can include those who earn revenues from their communications or those who communicate without prospect of revenue. Non-commercial user generated content is outside regulation, but if the content generates revenue directly or indirectly, it is within the CRTC’s regulatory powers.

In short, despite the purported focus on ‘web giants’, C-11 captures online audio and video without regard to size, market impact, importance of the content to audiences, the transactional/private nature of the communication, or the purpose of the content or its provider. Impact of C-11 on the Internet 13. ISCC readily agrees that there may be aspects of Internet streaming or content that merit public policy attention – and even regulation.

We contend, however, that broadcasting regulation of Internet content services is wholly inappropriate and will prove harmful to Canadians who access Internet content, the providers of Internet content, and those who create Internet content. 14. C-11 is based on the tragic illusion that all audio and audio-visual content on the Internet is a program, and that any person who transmits a program on the internet is a broadcaster rather than a communicator. For this misconception we fault the report of the Broadcasting and Telecommunications Legislative Review Panel.

It conceived the internet to be another form of broadcasting – rather than as a unique and unparalleled development. When all you have is a hammer, everything looks like a nail. When the problem communications policy seeks to solve is how to subsidize Canadian television production, then the Broadcasting Act – suitably modified – can embrace and absorb the Internet. And for a certain class of broadcasting enthusiast, this approach may seem viable. To the ISCC, it seems absurd and dangerous. 15.

The fatal ambiguity of C-11 is that it pretends to be about “broadcasting”, roughly as people have always understood the term. By emptying the

definitions of broadcasting and “programs” from specific content and their technological context, the authors and supporters of C-11 have not had to address reality. C-11 is a radical departure from the principles and

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Chapter Pre-study of Bill C-11 Submission to the Senate of Canada Online Streaming Act Standing Committee on Transportation September 14, 2022 and Communications Page 5 purposes of broadcasting regulation. It brings a massive range of free communication under the umbrella of the CRTC and treats Internet creators and content providers as if they were traditional broadcasters.

In seeking to protect the interests of traditional broadcasters, and those who supply content and services to them, C-11 jeopardizes the interests of a broad swath of Canadian culture (user-generated content) that has achieved success online but has had no place in the regulated broadcasting system. 16. As previously noted, C-11 is not about broadcasting: it is about protecting the economic interests of Canadian broadcasters and a niche of Canada’s music and video industries. In doing so, it imposes an economic and regulatory burden on all Canadian users of the Internet – consumers and creators alike.

It is not about bringing “broadcasting” regulation up to date. It is not even about “streaming”. It is about controlling content on the Internet, controlling the persons who transmit content on the Internet, and controlling what reaches the persons who access Internet content. In ISCC’s view, the private interests of those who would benefit from C-11 are neither aligned with nor reflective of the public interest. 17. With the adoption of C-11, the population of regulated entities will expand to potentially millions. The reach of C-11 is not limited by Canada’s borders.

The Bill deems a person or entity that makes any transmission of programs over the Internet to be an online undertaking. Thus, unless explicitly excluded, any individual who posts audio or audio-visual material on a website that is available to the public is perforce subject to the broadcasting jurisdiction of the CRTC. This would include podcasts or vlogs, home handyman or homemaker tips videos, church services conducted over Zoom, as well as virtually all user generated and digital first content on social media platforms.

To be clear, C-11 delegates to the regulator – the CRTC – full authority to select and decide from within the bill’s vast scope, what is to be regulated, whether by category of service or down to the level of individual service providers. Given the societal, economic, and cultural impacts of transactional Internet communications, ISCC believes that Parliament should provide much greater clarity as to the extent of regulatory intervention in this engine of economic growth and freedom of expression. 18.

Instead of introducing an actual Online Streaming Act – one that considers the unique nature of internet delivered content and the functioning of the markets for that content – C-11 tries to stuff the most vibrant and adaptive marriage of technology and culture within the stultifying embrace of the regulated broadcasting system. Bill C-11 seeks to prolong and reinforce the supply-side dynamics of broadcasting regulation. C-11 fails to affirm or even acknowledge the primacy of the audience and its right to choose programming that suits it. 19.

Bill C-11 seeks to turn the internet into a mere extension of the Canadian broadcasting system grounded in outmoded technologies and concepts. The Level Playing Field 20. There is no prospect that the benefits enjoyed by traditional broadcasters (see paragraph 9) will be extended to online streaming services (nor should they be!). By definition, a system that will impose burdens upon Internet streaming services without extending to them the

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Chapter Pre-study of Bill C-11 Submission to the Senate of Canada Online Streaming Act Standing Committee on Transportation September 14, 2022 and Communications Page 6 benefits of the regulatory system will not create a level playing field. On the other hand, if ‘levelling the playing field’ is intended to mean extracting ‘contributions’ from online streamers to support Canadian content, the goal could be achieved with much greater economy of scale, scope, regulatory intervention, negative impact on Canadians, and overall clarity, than foreseen by C-11.

Even in that respect, however, government forecasts of increased revenues for CanCon appear to ignore the realities of how broadcasters allocate CanCon spending, and the market impact of forcing well-financed global streamers to compete head-to-head with Canadian broadcasters for the most high-profile, costly, and subsidized CanCon: scripted fiction and long-form documentaries. It is farcical to suggest that any possible regulatory outcome of the adoption of C-11 will result in a levelling of the regulatory playing field.

C-11 is an ill-considered attempt to tip the playing field to the advantage of the players who have benefited most from the existing regulatory framework. C-11 Captures Ordinary Canadians 21. While s. 2.3 of Bill excludes some instances of streaming services that would otherwise be caught by the Act, they do not go nearly far enough in ensuring the legislation focuses on services that are truly of consequence in the digital marketplace. For instance, neither charities nor religious organizations are exempt. Nor does s. 2.3 shelter the online activities of individuals, whether professional or amateur. 22.

Social media platforms are far from the only places on the Internet where entities and individuals may transmit audio or audio-visual content on the Internet. Individual and community websites abound with such content. Neither s. 2.3 nor s. 4.1 addresses the much broader regulatory reach of C-11. User Generated Content 23. Computer based technologies empower individuals to create video and sound productions in the same way they write emails or talk on telephones, commonly referred to as User Generated Content (UGC).

UGC includes the cute baby and cute pet videos, the capture of newsworthy events like tornados and car crashes, civil unrest and a host of other situations and context. Here, however, we wish to address more specifically UGC that consists of artistic performances such as song, dance, acting, mime and every variant imaginable. This form of artistic expression is most commonly uploaded to social media platforms, of which there are a growing number. It is this content that is the basis for a burgeoning media economy that is built on the Internet and has no relationship to the world of traditional broadcasting. 24.

The main virtue of UGC is that it has extremely low barriers to entry. It also has virtually unlimited and costless export potential. At its most basic level, anyone with a smartphone can record a performance and post it to a social media platform. UGC creators do not necessarily need studios, production facilities, elaborate camera and recording equipment, specialized operators, postproduction professionals, scriptwriters, composers and the other trappings of

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Chapter Pre-study of Bill C-11 Submission to the Senate of Canada Online Streaming Act Standing Committee on Transportation September 14, 2022 and Communications Page 7 traditional sound and audio-visual production. As a result, almost anyone with minimal savvy can create content. 25. The ease of entry has some interesting impacts. First, traditionally disadvantaged groups have the ready means to participate in the creation of Internet content.

New Canadians, Canadians of diverse ethnocultural backgrounds, racialized communities, indigenous Canadians, persons with disabilities, and persons of diverse sexual orientation and gender identities and expressions all have found a place on social media platforms and reach audiences both broad and niche worldwide. 26. Canadian artists have been exceptionally successful in creating content that attracts large number of followers on social media – many earn their primary revenue from social media. C-11’s purported ‘exclusion’ of UGC on social media is overridden by exceptions.

The wording in sections 2 and 4 of the Bill boils down to this: if it earns any revenue, UGC uploaded by, or for, Canadians on social media can be regulated. That puts at risk thousands of Canadians earning revenues on YouTube, Facebook, TikTok, and other social media, who have been winning global audiences and revenues (up to 90% outside Canada!) outside the regulated, subsidized CanCon ‘system’. 27. Bill C-11 will allow the CRTC to impose on social media ‘discoverability’ measures intended to promote CanCon. That stands to harm Canada’s digital-first creators in three significant ways: a.

First, it will force them to submit their content for CanCon ‘certification’. They would face years of complex, costly CRTC proceedings to define and apply CanCon certification online. CanCon certification would become a barrier to innovation and market access, which currently is instant. b. Second, prioritizing CanCon on social media in Canada risks deprioritizing it outside Canada. Trying to make online CanCon discoverable by pushing it at Canadians who may not want it is fraught with negative consequences.

When recommended content is repeatedly ignored, stopped, or rated thumbs-down, algorithms interpret that feedback to mean people don’t want that content, and deprioritize it worldwide. That would outweigh by far any small audience increase in Canada’s domestic market. c. Third, the costs incurred by social media to implement these regulations would be borne in Canada by online creators. All of this would discourage Canadian creators from identifying as Canadian and/or from using Canadian-based infrastructure to upload content. 28. C-11 poses a threat to the vibrant world of UGC.

Things like Canadian content rules, discoverability rules and recommendation requirements are likely to harm this new and expanding creative community. The application of broadcasting rules to UCG will undermine the stated policy objectives of the Broadcasting Act, and potentially harm the very disadvantaged groups that Canadian policy seeks to promote.

Internet Society Canada

Chapter Pre-study of Bill C-11 Submission to the Senate of Canada Online Streaming Act Standing Committee on Transportation September 14, 2022 and Communications Page 8 29. ISCC opposes the imposition of the Broadcasting Act on user generated content not only because it is inappropriate, but because it is counter-productive to the Government’s stated aims and harmful to Canada’s digital creators. CanCon Rules Ignore Genuine Canadian Content 30. ISCC supports the creation of Canadian music and video production.

It supports requiring the major Internet streaming services to contribute to the creation of Canadian music and video productions. In doing so, however, ISCC urges a thorough re-think of the definition of Canadian content to ensure that productions that are based on authentic Canadian themes, on works by Canadian writers and composers, that are set in authentic Canadian locales and portray identifiably Canadian characters can obtain certification as Canadian productions. 31.

Instead of enlarging the scope for new and culturally distinct Canadian programing, Bill C-11, through subsection 11.1(1), attempts to freeze in place the existing system that puts industrial criteria above cultural criteria. It seeks to lock Canadian content into a supply side system sheltered from market engagement with its consumers. It is a system where producers must please the regulator rather than their audience. 32. That system, and Bill C-11, ignore the success achieved by Canadian creators in the quintessentially demand-driven online content marketplace, outside CanCon regulation.

That is the reality for Canada’s emerging, mostly young, digital-first creators achieving success with UGC on social media. However, it is also true for successful, Canadian Internet-based global content services such as Blue Ant Media, WildBrain and Skyship Entertainment. It is true, as well, for a number of traditional Canadian independent producers creating content for global streamers making use of Canadian creators, artists, talent, and crews. 33.

Despite the increasingly global nature of content production, and Canadians’ success in that global marketplace, current policy and regulations prevent a production that is wholly foreign financed to be certified as Canadian, even if its content, creative team, and talent are all distinctively Canadian. ISCC believes any new definition of Canadian content must permit streaming services to own and exploit the intellectual property rights to content that they have funded, so long as that content meets the cultural imperatives required for certification. Discoverability and Recommendation (“Showcasing”) 34.

C-11 is not content with preserving the trappings of the existing CanCon regime: it seeks to add new tools – discoverability and recommendation – to the inventory of privileges to be extended to the production industry. That industry relies on the obligations imposed upon broadcasters to create a captive clientele. The Internet has freed that clientele. The production industry seeks to interrupt the nexus between the consumer and the content he or she prefers – to put an algorithmic thumb on the scales of individual preference. 35.

Both discoverability and recommendation (showcasing) pose technical and legal issues that threaten to cause harm to the mechanisms by which individuals seek the programming they

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Chapter Pre-study of Bill C-11 Submission to the Senate of Canada Online Streaming Act Standing Committee on Transportation September 14, 2022 and Communications Page 9 desire and the expressive rights of those who may be forced to recommend Canadian programs against their better judgment. 36. The discoverability requirement will fail because there is no single system for identifying Canadian content – certified or otherwise. Nor does the proposal address forms of content that are dissimilar to that for which the film and certification regimes were created. 37.

The proposed requirement that Internet streaming services “recommend” or “showcase” Canadian content is not a legally neutral or sustainable requirement. The decision to recommend a program is one of taste, expertise, business interest and judgment. It is an expression of opinion about a work. In effect, C-11 seeks to force streaming services to recommend content contrary to their best judgment. This amount to forced speech and is contrary to the freedoms guaranteed by

section 2 of the Canadian Charter of Rights and Freedoms. 38. ISCC opposes the imposition of both discoverability and recommendatory obligations on Internet based streaming services – whether composed of user generated content or gated streaming services. Expanded Cabinet Power of Direction 39. Clause 7 of the Bill, under the guise of a clarifying amendment, radically alters the balance of the relationship between the Government and the CRTC. The proposed clause reads: For greater certainty

(7) For greater certainty, an order may be made under subsection (1) with respect to orders made under subsection 9.1(1) or 11.1(2) or regulations made under subsection 10(1) or 11.1(1). 40. The pretence that this provision merely clarifies the scope of a “broad policy matter” is patently false: it permits Cabinet to direct the CRTC in the minutest exercise of its powers. 41. As examples, Cabinet could direct the CRTC to: a. Issue an order, specific to, say, Netflix, requiring Netflix to carry a specific proportion of original French language Canadian productions (9.1(1)); b.

Impose a specific amount to be contributed by Amazon Prime toward the production of Canadian programs (11.1(2)); c. Enact regulations requiring broadcasters to allocate time devoted to political messages in a manner that the Government finds equitable (as opposed to how the CRTC would find to be equitable) (10)(1)(e); and d. Enact regulations that would distort which persons or organizations could receive compensation for appearing in a public interest capacity in proceedings before the CRTC.

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Chapter Pre-study of Bill C-11 Submission to the Senate of Canada Online Streaming Act Standing Committee on Transportation September 14, 2022 and Communications Page 10 42. ISCC is not aware of any policy rationale having been given for the dramatic increase in Cabinet powers over the CRTC. It was not part of the recommendations in the Yale report. It is an audacious power grab on the part of the Government to substitute its judgment for that of an independent tribunal.

For this purpose, the Government lacks an evidentiary record, it has no procedures to create a public record or afford interested parties a full hearing. It has no history of providing detailed reasons for its decisions with respect to policy directions. Its processes are protected by the doctrine of Cabinet confidences. 43. The Minister of Heritage has indicated that the Government will be issuing directions respecting the reformulation of Canadian content regulations and defining which online undertakings will be subject to CRTC regulation.

This provision threatens to render the CRTC a mere alter ego of the Minister of Heritage. 44. As disappointing as ISCC has at times found the performance of the CRTC to be, ISCC nonetheless favours an arms-length regulator, independent from the government of the day, as a means to ensure that the vitality of the expressive and cultural rights of Canadians are protected from Government overreach and intrusion. ISCC recommends Clause 7 of C-11 be rejected. Reduced Parliamentary Oversight 45.

Just as the Government seeks to enhance its ability to take charge of broadcasting regulation, the Government also seeks to limit the ability of Parliament to exercise its oversight function in relation to the power of direction. 46. At present, when the Government issues a direction to the CRTC, strict requirements must be followed before the direction can come into force.

Chief among these is that the proposed direction be laid before each House of Parliament (para. 8(1)(b)), referred to a committee of each House (existing subs. 8(2)), and forty sitting days of Parliament must have expired before the Government can implement the direction (existing subs. 8(3)). 47. The Government, by C-11, seeks to free itself from Parliamentary oversight. It would repeal both subs. 8(2) and (8(3).

While a proposed direction would still have to be tabled in each House of Parliament, there is no requirement that the proposed direction be referred to committees of Parliament, and a proposed direction may be finalized 30 days after it has been published in the Canada Gazette, regardless of whether either House of Parliament has had an opportunity to study and comment on the proposed direction. 48.

In the worst case, it would be perfectly legal for the Government to publish the proposed direction in the Canada Gazette, table the direction in Parliament on the 29th day after that publication and implement the direction on day 30 — allowing no time for Parliamentary scrutiny. In short, these changes vitiate Parliamentary oversight in matters that are of the greatest public interest and deserving of the greatest possible scrutiny. 49. ISCC recommends that Clause 8 of C-11should be rejected in its entirety.

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Chapter Pre-study of Bill C-11 Submission to the Senate of Canada Online Streaming Act Standing Committee on Transportation September 14, 2022 and Communications Page 11 Parliamentary Review of Legislation 50. It is common practice to incorporate in major legislative changes the provision for mandatory Parliamentary review at an agreed date – usually fixed at 3 to 5 years. The Government has not proposed a Parliamentary review of the C-11 amendments to the Broadcasting Act and has rejected amendments in the House of Commons that would have required a review. 51.

ISCC contends that the revolutionary nature of C-11 and the likelihood that it will generate unintended consequences merit a statutory requirement for Parliamentary review three years after the Proclamation of the amendments. **** End of Document ****

Annex Submission of the Internet Society Canada

Chapter to the Senate of Canada Standing Committee on Transportation and Communications Pre-study of Bill C-11: Online Streaming Act Proposed Amendments September 14, 2022

Internet Society Canada

Chapter Pre-study of Bill C-11 Online Streaming Act Annex Submission to the Senate of Canada Proposed Amendments Standing Committee on Transportation September 14, 2022 and Communications Page 1 1. ISCC proposes several amendments to C-11 that would resolve its most serious flaws. In the following paragraphs, we highlight the issue and suggest technical wording that may be helpful to the Committee in its pre-study of Bill C-11. Issue: Regulatory Overreach 2. The primary flaw in C-11 is in its broad capture of all programs and all services on the Internet.

This over capture, that then requires a process of exemption to winnow out the minnows from the whales, is unnecessary and dangerous. ISCC proposes that the regulatory reach of the Broadcasting Act be limited to streaming services that derive revenues from the Canadian market in excess of $150 Million per year. This is a simple test. It will alleviate a great deal of regulatory and hence business uncertainty.

Clause 2, subsection (3) is amended by adding the following: Exclusion – Small Online Undertakings 2.4 This Act does not apply to an online undertaking whose revenues in Canada from paid subscriptions and embedded advertising do not exceed $150 Million per year. 3. Foreign language streaming services pose no threat to the traditional broadcasting system or to those who create the content for that system. We recommend that streaming services that deliver services in languages other than French, English and Indigenous languages that are habitually spoken in Canada should be exempt from the application of the Act.

Clause 2, subsection (3) is amended by adding the following: Exclusion – Foreign Language Services 2.5 This Act does not apply in respect of an online undertaking whose programming is primarily transmitted in languages other than French, English or an Indigenous language that is habitually spoken in Canada. Issue: Respect for Audience Preferences/Market Forces 4. The Act should recognize that the Canadian broadcasting system should be moulded by the choices of individual Canadians rather than by regulatory imperatives and that market forces are beneficial in enabling Canadians to make programming choices.

Subclause 3(3) is amended by adding after subparagraph (1)(d)(

i) of the Act: (i.1) reflect and be responsive to the preferences and interests of its audiences; and (i.2) to the extent possible, rely on market forces to ensure that Canadians obtain the programming of their choice.

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Chapter Pre-study of Bill C-11 Online Streaming Act Annex Submission to the Senate of Canada Proposed Amendments Standing Committee on Transportation September 14, 2022 and Communications Page 2 Issue: User Generated Content 5. User generated content uploaded to social media should not be subject to the Act. We recommend the deletion of subsections 4.1(2), (3), and (4). Clause 4 is amended by deleting subclauses (2), (3) and (4). Issue: Expanded Power of Direction and Reductio of Parliamentary Oversight 6.

The Government has on several occasions stated its intention to make use of the power of direction over the CRTC to pre-empt regulatory processes – in particular with respect to limiting the application of the Act, and to defining what is a Canadian program. Act. Other areas are likewise ripe for the exercise of the directive power, and Clause 7 expands exponentially the ability of the Government to direct the CRTC on the minutest details of the exercise of the CRTC’s regulatory authority. Clause 7 is deleted. 7.

Clause 8 of C-11 limits the ability of Parliament to provide oversight of the use of this extraordinary power. ISCC recommends that C-11 be amended to restore the kind of oversight that is provided by the current Act: a referral to a committee of each House of Parliament and the passage of at least 60 sitting days before a directive may be made final. By deleting Clause 8 of the Bill, the existing safeguards for Parliamentary oversight remain operative. Clause 8 is deleted. Issue: Discoverability and Recommendation 8. Remove the discoverability and recommendatory obligations from C-11.

The discoverability requirement is contrary to the interests of individuals who want to see programming based on their personal choices and history of their choices. It is also a form of forced speech that raises Charter issues. The recommendation (“showcasing”) requirement is clearly a form of forced speech that violates

section 2 of the Charter. Clause 10 is amended by deleting in paragraph 9.1(1)(

e) the words following the word “public” in line 2. Issue: The Broadcasting Regulatory System is too Intrusive for Online Undertakings 9. Online undertakings – domestic or foreign – should not be subject to the extraordinarily intrusive regulation of the broadcasting regime. Online undertakings should be exempt from the application of sections 9.1 and 10 of the Act, except to the extent required to determine the amount of revenues a service may have generated from the Canadian market. Clause 11 is amended by adding after subclause 10)(2) the following:

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Chapter Pre-study of Bill C-11 Online Streaming Act Annex Submission to the Senate of Canada Proposed Amendments Standing Committee on Transportation September 14, 2022 and Communications Page 3

(2.1) Sections 9.1 and 10 do not apply to an online undertaking except for paragraphs 9.1(

n) and (

o) and paragraphs 10(1)(

i) and (j). Issue: Online Undertakings must be able to Access Funds to which they Contribute 10. There is a legitimate concern that foreign online undertakings who are required to pay into music, film, or video funds may not be able to access those funds. ISCC believes that foreign online undertakings should be on an equal footing with their Canadian peers. This should be guaranteed by the legislation. Clause 12 is amended by adding after subsection 10.1(8):

(9) Where a foreign owned online undertaking is required under subsection (5) to pay an expenditure to a person or organization, or into any fund, that undertaking shall enjoy all the benefits available from any such person, organization, or fund as if they were Canadian owned and controlled. Issue: Parliamentary Review 11. C-11 is a radical change to the regulation of communications. It targets for regulation as broadcasting a vibrant and innovative engine of social and economic change.

It is typical, when new legislation is introduced, that it be submitted to Parliamentary review, in order that its effectiveness in addressing the issues that gave rise to it be assessed. C-11 lacks such a provision. ISCC recommends that there be a provision for Parliamentary committee review of C-11 within 5 years of its coming into force. That a new Clause 31.1 be added following Clause 31 of the Bill as follows: Three-year review 93. As soon as feasible after the third anniversary of the day on which this

section comes into force and after each subsequent third anniversary, a review of this Act and of its administration and operation is to be commenced by a committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established for that purpose. **** End of Document ****