Western Standard - Professor Michael Geist explains the impacts of Canada's bill c11 and c18.

00:00:00.000 things I want to talk about, and it's very familiar ground for you. You've been outspoken

00:00:04.020 and writing on it lately, and there's two bills, C-11 and C-18. Particularly as an independent

00:00:09.360 media outlet, we're, of course, very concerned about C-18. But I guess in a nutshell, could you

00:00:14.760 kind of give some short definitions of what those bills are and what they entail?

00:00:18.140 Yeah, absolutely. And I'm glad you raised both, because I think they're both really important as

00:00:21.720 part of this discussion. C-11 is probably better known to certainly some of your audience as C-10,

00:00:28.300 because it was C-10 in an earlier life. That was last year. It died and has returned as Bill C-11.

00:00:34.380 It is reformed to the Broadcasting Act. And while it started, I think, somewhat uncontroversially when

00:00:42.620 people looked at it and thought, well, this is a bill that tries to bring companies like Netflix

00:00:46.480 and Disney into the Canadian broadcast system, became much more controversial once government

00:00:51.620 removed some safeguards that then brought in user-generated content within its ambit. And I

00:00:58.160 think caused a fair amount of concern. We can get into some of those details if you like in a

00:01:02.240 moment. C-18 quickly involves the, is called the Online News Act, and it is designed to provide

00:01:08.920 support, the government says, for Canada's media. That includes not only a conventional print,

00:01:16.160 but also any number of radio, of the CDC even. And the idea that they've got is that that should

00:01:24.560 all be paid for by, by the large internet platforms, such as YouTube, such as Google and Facebook.

00:01:31.680 Okay. So yeah, I guess starting with the C-11 and the, and that's talking about the regulation of user

00:01:39.120 content. I mean, they kind of deny that, but that's essentially what it's about. And they use the CanCon

00:01:45.520 basis for, for feeling that they're going to do it. And one of the things you'd spoken on was that,

00:01:49.120 that it wouldn't even necessarily protect Canadian content all that better anyhow,

00:01:54.560 and then it might not be the route to go. Yeah. Well, I think one of, you know, to me,

00:01:59.040 one of the foundational problems with C-11, the Broadcasting Act bill, is that it is framed by the

00:02:06.000 government as, as being there largely to promote Canadian content. And they, they, they often discuss

00:02:12.320 that in the, in terms of saying, we want to ensure that Canadian stories get made, but the, the not so

00:02:18.160 secret reality of the current Canadian system is that it does a really lousy job of doing that. And so

00:02:25.520 it's a bit more of a tick box exercise where if you check the right boxes, you are considered to be

00:02:31.680 Canadian content. And if you don't, you're not. And the problem with that is that there is content that

00:02:37.360 qualifies as being Canadian content that most would agree has really nothing to do with, uh,

00:02:43.120 or even pretend to be about Canadian stories in any meaningful way. It just ticked the right boxes.

00:02:48.560 And then on the other hand, you get content that in many respects meets all the standards that we

00:02:54.320 would otherwise consider to be Canadian content, yet it doesn't qualify. Just to give you one example,

00:02:58.960 I raised it when I appeared before the Heritage Committee earlier this week. One of Netflix's

00:03:03.680 productions is a French Quebec produced French based film called just a decline.

00:03:09.280 It's a Canadian, it's got a Canadian production company, screenwriter, director, lead performers,

00:03:14.320 photography director, production designer, composer, editor, quite literally, it takes every box. But

00:03:20.800 the fact that it is Netflix that financed and produced it means that it does not count as certified

00:03:27.040 Canadian content. So we've got a system that frankly, just isn't fit for purpose. If the goal is,

00:03:32.560 is truly to promote these so-called Canadian stories.

00:03:36.320 Yeah. I mean, the goal shouldn't matter which outlet or which media source is doing it. Like

00:03:40.320 we've have a changing world where it's going to be cooperation with large operators such as Netflix

00:03:45.760 and streaming services that are going to be partnered in making Canadian content that gets to a broader

00:03:50.320 audience. So if we don't recognize what they're producing under that field, we're doing ourselves a

00:03:55.440 disservice.

00:03:56.000 Yeah, no, I think that, you know, I think we should recognize we've got a hugely successful sector right

00:04:02.960 now, and one in which there's record amounts that are coming into the sector. Part of the challenge

00:04:09.200 with this issue is that when people talk about Canadian content, there's real differences in terms

00:04:15.120 of their views about what they're trying to achieve. So sometimes it's about Canadian stories. Sometimes

00:04:19.760 it's about the economic imperative of jobs. And sometimes it's about intellectual property. It's

00:04:24.720 about Canadians owning these productions. Depending on what you're trying to achieve, you need a policy

00:04:30.800 that kind of moves you in that direction. But it's pretty tough to achieve all three, at least

00:04:35.600 simultaneously, and have a coherent policy. And yet that's what we have right now, which I think helps

00:04:41.520 explain a little bit why the policy is so incoherent.

00:04:44.080 So, I mean, just to, you know, play a little devil's advocate, at least as far as I'm concerned,

00:04:50.000 is more libertarian minded of saying, kind of, let it go. I trust our Canadian producers to come

00:04:54.080 up with good quality content and do well. But people are concerned they'll be overwhelmed. We

00:04:58.320 have a neighbor who is very large and can really dominate the media industry. Is there room then for

00:05:03.840 some sort of legislation, though, to protect Canadian content? Or does the current legislation still

00:05:09.840 serve even? Or does it need change? Well, that's a great question. I guess I would start by saying,

00:05:15.920 you know, there's a number. Let me unpack a few things there. First, specifically on the question,

00:05:21.760 is there a role for government to support the production of content in Canada, including, of

00:05:27.280 course, Canadian content? I think my view is that the answer is yes, there is. We already certainly

00:05:32.320 provide significant support through tax credits. And we know that without some of that tax credit

00:05:38.880 system, both federally and provincially, that a lot of that economic activity will simply walk

00:05:43.520 away and go elsewhere. And so there is a role. All countries do it. All jurisdictions do it. If you

00:05:48.720 want to have a robust sector, there is a role for the government to play. And I think I'd be willing to

00:05:53.520 go further and say that if you want to ensure that there are certain kinds of stories and productions,

00:05:58.720 that you're not just a so-called branch plant for production, let's say, coming out of the United States,

00:06:03.920 there is also a role for government to incentivize some of that kind of creativity and provide

00:06:08.560 support in that regard. Part of the problem, I would say, is that our current system does a pretty

00:06:13.040 bad job of that, even though it is used as the rationale for the kinds of reforms that we're

00:06:19.040 seeing. In terms of whether or not we need some of these changes, you know, I think you can make an

00:06:24.000 argument that the large curated streaming services, so the Netflix and Disney's of the world, function in

00:06:31.440 many ways like large broadcasters. And so you could try to make the case that, you know what, it makes sense to

00:06:36.800 have some kind of regulations associated with those large curated streaming services in the same way

00:06:43.920 that you would with broadcasters. The problem with this bill is that it goes way, way, way beyond that.

00:06:50.080 It covers all streaming services, covers, frankly, all audio visual content anywhere in the world,

00:06:56.240 and then leaves it up to the CRTC to decide what gets exempted. And I think that kind of flips the

00:07:01.600 approach we ought to be taking. We could identify, I think, a narrow group of very large influential

00:07:07.120 streaming services and say, you sure look a lot like a broadcaster. We want to bring in some of

00:07:11.840 those same kinds of rules. That's a far cry, though, from what the government has in mind with Bill C-11.

00:07:17.440 And I had Peter Menzies on as a guest before. I believe he spoke to the same committee that you

00:07:22.160 did, and he was a former head of the CRTC. I mean, he's not fully opposed to a degree of regulation and

00:07:28.080 mandating in broadcast and journalism, but he's quite concerned with what he's seeing coming out, too.

00:07:34.400 Oh, no, no doubt. I mean, certainly, you know, Peter and I did appear together and we raised

00:07:39.920 concerns. Notably, I think on that same day, we had some coming from the Digital First creative

00:07:46.080 community. Morgan Forche, for example, who runs a company called Skyship Entertainment, which is

00:07:52.480 Canada's largest YouTube streamer. Frankly, its numbers would be mind-boggling,

00:07:57.360 even to some of the very well-established Canadian services. We're talking about tens of millions of

00:08:02.560 subscribers, billions of streams, 97 percent of which occur outside the country. All of their

00:08:09.680 intellectual property and their creativity created here in Canada, yet you don't hear about them.

00:08:14.800 They don't actively use some of the kind of government granting systems that we've seen.

00:08:19.600 And they're concerned about the bill because they're concerned that when the government oversteps

00:08:23.760 into this area, because they are not one, they're not a Netflix and they're not using those kinds of

00:08:29.520 platforms, they're worried it could have a real negative impact for them.

00:08:33.440 Well, there's a lot of unique ventures and companies and things that didn't exist 20 years

00:08:37.040 ago that exist today. And it's hard to keep legislation to keep up with what's going to develop.

00:08:41.600 So it's good to hear that concern. So to kind of pivot to C18 then, that's a little different and

00:08:47.280 that's getting more towards independent media a lot. And the big providers, Facebook, Google and others,

00:08:54.320 it's basically looking for a setup. I kind of see it as putting the screws to them a little, but

00:09:01.440 paying for access and placement. Can you kind of explain how that's working?

00:09:05.040 Yeah, no. So, so it's the way it's working or the way it could end up working is that,

00:09:11.520 you know, you've had some of the very large Canadian media organizations, Post Media and TorStar,

00:09:16.000 I suppose most notably, arguing that they would like to see companies like Google and Facebook pay them

00:09:22.480 for sort of the references to their news articles that exist on their sites. And I think that for some

00:09:28.880 people, if what we were talking about was some of these platforms taking full copies of their

00:09:34.800 articles and posting them on those sites and then perhaps selling ads against it, they would say,

00:09:39.440 you know what, that's something that we think you ought to be compensating for. But that's not what

00:09:42.880 we're talking about, in part because those platforms don't copy full text of these articles.

00:09:47.760 They typically just post links to the underlying services themselves. And so it seems to me that

00:09:54.480 that's, as I say, that's not what we're, we're not even talking about full copying. And the legislation

00:09:59.680 is pretty clear that it goes well beyond the notion of reap of compensation for reproduction of works.

00:10:06.080 It talks about facilitating access to the news or any portion thereof. And so when you're talking

00:10:12.960 about facilitating access to news, you're talking about linking to the news, you're talking about

00:10:18.000 creating an index that might include various news services. So for example, if you include if,

00:10:24.880 if someone ran a search on Google for tell me Western based news organizations and your news

00:10:31.840 organization and a bunch of others showed up, the mere fact that they were on that list under this

00:10:36.640 legislation would be viewed as facilitating access to the news and would be viewed as something that

00:10:43.120 Google ought to be compensating the underlying companies for, which I must admit, I find baffling because

00:10:50.320 they're actually driving traffic to these underlying sites. And yet the position is that somehow it's

00:10:55.120 Google that benefits, let's say, from the inclusion of this information in their index,

00:11:01.200 and thus they ought to be compensating the underlying news organizations that are linked to.

00:11:07.200 Yeah, I find it kind of bizarre. I mean, for our organization, we are very dependent on that. If we

00:11:11.920 aren't listed in Google and Facebook and some of those, we can't get our message to the broader

00:11:16.240 audience very easily at all. I mean, we have newsletters, we do everything we can. If anything,

00:11:22.320 and I'm not proposing that we should almost be paying them a little bit for how much they promote

00:11:25.680 us outside of that. When we bring traffic in, we bring subscribers, we make our money on the

00:11:29.360 advertising after that. So it's just sort of absurd. But the thing is, this will stack things if they got

00:11:35.360 what they wanted, sort of more heavily for those, the larger the heavyweights out there, as you said,

00:11:40.240 Taurus star post media, and the little independent outlets like ourselves could end up finding

00:11:45.440 ourselves on the outside looking in. And that's very troubling for us. And I think for people in

00:11:50.000 general, I think the independents find themselves in a very, very difficult position, you know,

00:11:54.880 the government has tried to make the case that no, this is, this is not, not going to hurt the

00:12:00.240 independents, that they will have the opportunity to benefit from the negotiations in the same way that

00:12:05.440 the large players would. But left unsaid is that there are, and I think you've hinted at it here,

00:12:10.560 there are many independents that recognize that if anything, the value proposition is one where

00:12:16.080 they're the beneficiaries of this. And those free referrals are worth quite a bit. And we know that,

00:12:22.160 of course, because media organizations pay to advertise on these services all the time to drive

00:12:27.280 links. They, they literally are paying for those links in many circumstances. And suddenly now they're

00:12:32.560 saying, no, no, you should be paying us for those links. I think the problem for many independents is that

00:12:38.080 they may find themselves in a position where they feel they have no choice but to enter into this

00:12:42.800 process, that if your competitors are doing it, then suddenly you say, well, how can I compete if

00:12:48.080 I've created a digital only news service in a local community, and I've got this literally the CBC is my

00:12:55.280 primary competitor already potentially supported by tax dollars suddenly now gaining additional support

00:13:02.320 by participating in a process where they're getting money from Google and Facebook. Can I really afford

00:13:07.600 it to stay on the sidelines and, you know, and put myself in a less competitive position over time?

00:13:14.720 It puts us at a disadvantage. Wasn't there a battle similar to this in Australia in the past? It was

00:13:19.600 sort of Facebook versus Australia. And how did that all finish out? Actually, I think somebody backed off

00:13:25.040 somewhere. It was and so and it's the government will tell you that they're using the Australian example

00:13:30.000 as their model. And the Australian approach did involve Facebook for a brief period of time saying they

00:13:35.520 were simply going to remove news links from their service altogether, that that the reality for them

00:13:42.800 is that news on their platform just is a relatively trivial part of the overall content world on a

00:13:50.400 Facebook platform. And so if they're facing a world in which they're required to pay for that compensation,

00:13:57.600 for links, you know, I think that these companies look at this a little bit as an existential threat

00:14:02.480 because they say, listen, what makes news so special that if I have to pay for links for news,

00:14:07.840 why don't I have to pay for links for a myriad of other content that people happen to post on my site?

00:14:13.120 They might come and say, hey, I want to get paid for that, too. And so they did take a strong

00:14:18.320 position and say that they weren't going to they weren't going to include news. They backed off

00:14:23.200 under a clearly enormous political pressure. But we need to understand, of course, that the Australian

00:14:28.400 market is pretty different than the Canadian market, not the least of which is that in some ways it

00:14:33.040 was largely a battle by Rupert Murdoch on the one side and Facebook, Google, Google on the other. And,

00:14:39.440 you know, as a home cooking, so to speak, for Murdoch, as an Australian based media organization,

00:14:45.200 no surprise what the outcome was. We don't have quite the same kind of media environment in Canada, though.

00:14:51.280 Yeah. So I guess kind of in wrapping up, it looks like these bills, though, are sort of getting rammed

00:14:55.520 through. You wrote recently the government moved to end debate and kind of ramrodding, ramrodded

00:15:00.400 through the next step in the legislative process. Is there much chance, do you think, of having these

00:15:05.600 bills amended or perhaps scrapped? Or does it look like they're pretty much a done deal?

00:15:09.360 That's a great question. You know, obviously, they've got the government right now has the votes

00:15:14.880 minority government, but has support from the NDP. And frankly, on this issue,

00:15:18.800 these issues has the support from the bloc as well. So scrapping the bills does not seem like a likely

00:15:25.280 outcome. Is there the prospect for change in the context of C11? I think we're about to find out,

00:15:31.840 given that the hearings will continue next week and very soon afterwards, we'll see what amendments

00:15:38.160 are proposed. And so it is possible that the government may be open to some change.

00:15:42.720 On C18, on the news bill, it's hard to know, in part because the government is trying to move this

00:15:48.480 very expeditiously with really no debate at all. I mean, it's frankly, I think, remarkable to see the

00:15:55.600 government move ahead with this, with the minister responsible, the heritage minister, Pablo Rodriguez,

00:16:01.680 has quite literally not given a speech on this bill in the House yet. He's never even responded to a

00:16:07.200 question about the bill in the House. And yet the government's already moved to end debate on the

00:16:12.480 bill starting next week. That's quite problematic. I guess all we can do is just keep watching and try

00:16:18.080 to point things out. And I hope perhaps in the Senate, they'll get some more scrutiny. And, you know,

00:16:22.800 sometimes we do get amendments and some good changes in there. So I appreciate you coming on to talk to

00:16:27.760 us about that today and the work you're doing, you know, and bringing attention to this. As I said,

00:16:31.360 kind of some of the viewers, it can be considered somewhat dry content to some, but it's very

00:16:35.200 important. And I appreciate your work on it. So where can people find more information on what you're

00:16:41.040 doing and to keep track of these sorts of issues? Yeah, sure. So I'm online at michaelgeist.ca,

00:16:46.160 m-i-c-h-a-e-l-g-e-i-s-t.ca. And I'm on Twitter at mgeist, at m-g-e-i-s-t.

00:16:54.320 Well, great. Well, thank you again for coming on. And well, let's hope for the best. And

00:16:59.760 perhaps we'll talk again down the road with some positive developments on this front.

00:17:03.120 That would be great. Thanks so much for having me.

Western Standard - May 26, 2022

Professor Michael Geist explains the impacts of Canada's bill c11 and c18.

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