Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.
In the age of streaming, social media, and subscription-based entertainment platforms, critics have called for amendments to Canada's Broadcasting Act, which was last updated in 1991 – long before the internet we know today materialized. On February 2, 2022, Minister of Canadian Heritage Pablo Rodriguez introduced Bill C-11 to parliament, proposing sweeping changes to Canadian broadcasting regulation and policy directives. Referred to as the Online Streaming Act, this proposed legislation purports, among other things, to uplift and amplify Canadian creators by regulating online streaming services such as YouTube, Disney+, Amazon Prime Video, and Netflix.
Its predecessor, Bill C-10, was passed by the House of Commons but was unable to secure Senate approval before the dissolution of Parliament in 2021. Like Bill C-10, the proposed Online Streaming Act seeks to bring unregulated digital media platforms within the mandate of the Canadian Radio-television and Telecommunications Commission (CRTC). Currently, these foreign-based platforms operate outside the regulation of the CRTC as distinct from traditional TV/radio broadcasts, and thus are not required to invest significant resources in Canada's domestic creative industries. The Canadian broadcasting, film and television production sectors are substantial players in the Canadian economy, accounting for approximately $14 billion to Canada's GDP in 2019 and predicted to rise in the coming years. According to a poll cited by the Canadian Media Producers Association (CMPA), 87% of Canadians believe that foreign-owned web companies such as Apple, Google, and Netflix should be required to play by the same rules as domestic broadcasters.
The Online Streaming Act coins the concept of an "online undertaking," broadly defined as "an undertaking for the transmission and retransmission of programs over the internet," giving the CRTC wide discretion in determining what is considered a "program" under its framework. Furthermore, the CRTC would be empowered with the ability to order and impose conditions upon online services to advance various policy objectives, including promoting Indigenous and racialized community-produced content.
Reactions to the proposed legislation have been mixed. The CMPA, which represents over 600 independent production companies across Canada, have launched a public campaign in support of Bill C-11. They argue that the Online Streaming Act will redirect some of the streaming giants' profits back into Canada's creative sectors and make it easier for Canadian audiences to access Canadian and Indigenous content outside platform algorithms. Jennifer Brown, CEO of the Society of Composers, Authors and Music Publishers of Canada (SOCAN) told The Globe and Mail that she thinks "this bill is going to be a step in the right direction" in supporting and growing the Canadian music industry.
Others are concerned with how the proposed amendments would affect user-generated content and individual rights to curate one's own media feed. Ramneet Bhullar from OpenMedia.org takes issue with the bill's potential effects on small and digital-first Canadian creators, arguing that the threshold of "Canadian"-ness is inherently problematic and that the CRTC's expanded powers will only amplify "officially recognized content", rather than the content individual consumers want to see.
YouTube also spoke to CTV News, warning that the bill could hit digital creators' earnings abroad. Youtube noted that arbitrarily promoting Canadian content could skew their algorithms. These algorithms take into account whether a video has been watched, ignored or turned off part way, thus affecting how the content is promoted.
Michael Geist, a law professor from the University of Ottawa wrote in a blog article that he believes “the starting point in the bill is that all audio-visual services anywhere in the world with some Canadian users or subscribers are subject to the Canadian jurisdiction and it will fall to the Commission to establish thresholds exempting some services from regulation. However, even with some exemptions, the Canadian approach will require registration and data disclosures, likely leading many services to block Canada altogether, reducing choice and increasing consumer cost.”
Bill C-11 is currently at consideration in committee at the House of Commons, having completed its second reading as of May 12, 2022.
Further Reading:
Bill C-11 in its entirety: https://www.parl.ca/DocumentViewer/en/44-1/bill/C-11/first-reading
CMPA's Campaign to pass the Online Streaming Act: https://cmpa.ca/PassBillC11/
Global News: What’s a Canadian Film? https://globalnews.ca/news/8749590/canada-bill-c-11-online-streaming/