OTTAWA – Minister of Canadian Heritage Pablo Rodriguez has always emphatically said no, Bill C-11, the Online Streaming Act, does not capture individual creators or user-generated content (UGC).
He said this when he first introduced the bill, and he did so again earlier this week during question period. “Platforms are in, and users are out,” he said.
Section 2.1 does specify that a person using a social media service to upload content online to be viewed by other users of the service does not carry on a broadcasting undertaking for the purpose of the act, unless they are “the provider of the service or the provider’s affiliate, or the agent or mandatary of either of them.”
So, regardless of how much revenue individual users generate they will not be considered broadcasters and will not be regulated under the act.
“The goal is not to go after digital creators and the content that they are making on their own and uploading to a service like YouTube. The goal here is really to capture that slice of commercial content that’s being uploaded to a service like YouTube,” a senior government official with the Department of Canadian Heritage told Cartt.ca.
“If you’re a record label and you’re uploading records that your record label has published and those records would also be found on a service like Spotify, then yes, with respect to that kind of content, YouTube may have certain obligations,” the official explained.
In other words, the government is not interested in regulating creators or their content but is interested in regulating the platforms the content appears on under certain circumstances. The bill ultimately leaves it up to the CRTC to decide what, if any, obligations a social media platform has to the Canadian broadcasting system.
The part of the bill leading to much confusion and debate is section 4, which deals not with creators themselves but with their content.
The bill clearly excludes content uploaded by users on social media services in section 4.1(1), but section 4.1(2) provides two exceptions to this – the first is for programs uploaded to a social media service by the service provider or an affiliate of the provider while the second is for programs “prescribed by regulations under section 4.2.”
Section 4.2 asks the CRTC to make such regulations taking into consideration three things: the extent to which the program generates revenues (directly or indirectly), whether the program has been broadcast by a broadcasting undertaking that either requires a licence to operate or is required to be registered with the CRTC but is not a social media service provider, and whether the program has a unique identifier under an international standards system.
The senior government official explained the intention of this section is to bring into scope commercial content on social media services while keeping out non-commercial UGC. The three factors the bill asks the CRTC to consider are intended to be “breadcrumbs” that indicate what content would be considered commercial, the official said.
“This isn’t about individual pieces of content, this is about whether a service like YouTube is subject to certain obligations under the act and whether there is a slice of content that will meet those characteristics that would be subject to YouTube having certain obligations,” the government official explained, adding that no one is going to be analysing every individual piece of content uploaded to a social media site.
Ultimately, it will be up to the CRTC to makes regulations that specify how this will all work.
“What it will look like in practice would be the CRTC going through a regulatory process and saying, okay, here are the characteristics of commercial music on a service like YouTube, and the expectation is with respect to that type of content on YouTube, YouTube [will be given] obligations under the act to support Canadian music, for example,” said the government official.
Not knowing exactly how this will play out has been a topic of much C-11 discussion with people including YouTube’s head of government affairs and public policy, Jeanette Patell and OpenMedia’s campaigns director, Matthew Hatfield arguing the bill should more clearly exempt UGC.
“We are engaging with YouTube and others who feel like the government isn’t being as clear as we could be on this and so we are engaging with them on their suggestions for how to make that intention clearer,” the government official said.
Perhaps confusing the matter is that while Rodriguez indicated the bill does not give the CRTC the power to regulate UGC, CRTC chair Ian Scott (who initially said he agreed with this assertion), told the Standing Committee on Canadian Heritage earlier this month the bill does give the Commission the power to regulate such content, adding that this power exists today under the current act as well.
Yesterday, when speaking at another Heritage Committee meeting, Scott specified those powers are limited.
CRTC general counsel and deputy executive director Rachelle Frenette explained this further, stating: “User uploaded content can be the subject of some authority by the Commission, but contrary to what many have suggested, the Commission’s powers in relation to social media platforms and user uploaded content are actually quite narrow. For example, rules on the proportion of Canadian programs, French-language programming and programs devoted to specific genres cannot be imposed on user uploaded content. The CRTC is also prohibited from imposing any rules regarding standards of programming on user uploaded content.”
This is because section 2.2 states that social media services do not exercise programming control for the purposes of the act and specifies social media are online undertakings. Because of this, the CRTC is explicitly prohibited from imposing certain conditions on social media services that it can impose on other broadcasting undertakings.
For example, the CRTC cannot impose conditions on services that do not exercise programming control regarding the proportion of French-language programs expected to be available and cannot impose conditions on online undertakings regarding things such as the portion of time that can be devoted to political advertisements and announcements.
The CRTC can, however, make conditions that apply to social media sites regarding things such as discoverability, which on its own has been a topic of much discussion at the Heritage committee meetings this week.
