Academics explain algorithms and weigh in on whether the CRTC can handle implementing the bill
OTTAWA – If Bill C-11 becomes law the side effects “could break stuff”, Frédéric Bastien Forrest, a Canadian radio personality and content creator, told the Standing Senate Committee on Transport and Communications yesterday.
“That’s what’s scary about the business model we have already… a lot of people assume that digital media works just like traditional media, a top-down approach, but it’s more of a grassroots thing so we need separate ways to address these two industries,” he said.
Forrest called on the committee to keep user-generated content out of discoverability requirements and to help empower digital creators.
Traditional media have access to subsidies that do not exist for digital creators – “in other words, our public funds are undermining the Canadian economy since rather than training new workers who understand the codes of web creation, we are subsidizing an aging industry that is slowing down,” Forrest said according to an English translation of remarks he gave in French.
In English, he told the committee if tech giants are taxed, “let’s make sure we subsidize local Internet creators with that money. Let’s not miss this opportunity for stronger creators and a stronger economy.”
For conventional broadcasters, however, C-11 in its current form presents a long-awaited opportunity to ensure support for the traditional system and to have foreign streamers brought under the scope of the act.
“This is an overdue action from our government, and I enthusiastically support the bill,” Michael MacMillan (above), co-founder and CEO of Blue Ant Media said to the committee.
MacMillan pointed out they want American streamers to stay in Canada, noting it is “very good for all of us.” What they also want, however, is support for the Canadian part of the industry.
The Blue Ant exec further spoke to the committee about what is turning out to be a major point of contention in the debate on C-11 – the definition of Canadian content.
“There have been a lot of conversations, I’ve noticed, in recent weeks about the definition of what an “eligible Canadian program” might be,” MacMillan said.
“My view very firmly is that an “eligible Canadian program” is a program produced by Canadians. Who makes the program and also who owns the program? Is a program created by Canadians — actors, writers, directors, producers, editors, cinematographers — and owned by Canadians, where the copyright and the use right are owned by Canadians? That should be the main guideline, that’s been the essence of how we’ve defined a Canadian program successfully over many years.”
He went on to urge the committee “not to be confused by some odd sidebar conversations that seem to be taking place suggesting that the definition of a Canadian content program should be based on the actual subject matter.”
He argued it is not government’s place to make decisions about “whether a story has an appropriate redheaded pigtailed girl or a documentary about wheat fields – that’s not at all the purpose of government support in this industry. We would argue strongly a Canadian program should be one that’s made by Canadians and where the copyright is owned by Canadians.”
Later, Wendy Noss, president of the Motion Picture Association – Canada (representing global studios and streamers including Disney, NBCUniversal, Netflix, Paramount, Sony and Warner Bros. Discovery) appeared before the committee and argued the definition of Canadian programming should not be seen as being set in stone.
“I have been listening to a lot of the debate here, and it’s almost as if people think the definition of “Canadian content” was established on some tablets in the desert long ago and it can’t ever be changed,” she said. “That is just far from the truth. There are already various definitions that apply in Canada for different reasons. Canadian producers already have the benefit of a definition that only recognizes when a Canadian producer owns copyright for access to public funds, like Telefilm and the Canada Media Fund, and for higher levels of tax credits.”
Noss argued defining Canadian programming when you are including global companies making content for the world needs to take “an expansive 2022 approach, rather than being mired in a 1970s approach.”
Netflix’s director of public policy, Stéphane Cardin also called for the modernization of the definition of Canadian content as part of a list of conditions under which Netflix sees C-11 as being a good approach to broadcasting legislation.
According to an English-translation of remarks made in French, Cardin told the committee that, “to the extent that Bill C-11 seeks to create a flexible framework that will enable the CRTC to recognize the different ways that individual online services contribute, to tailor conditions of service applied to online undertakings and to modernize the definition of “Canadian content”, we believe that is the right approach.”
They are concerned, however, about a more rigid approach being taken, including transposing current regulatory requirements traditional broadcasters are expected to meet, onto online streaming services or maintaining the current definition of Canadian content, Cardin said.
Specifically, he referenced the problem he sees with requiring Canadian ownership of copyright. “When Netflix makes a show here in Canada, based on Canadian stories, employing Canadian creators, that should be recognized as a Canadian story,” he said.
During another meeting today, the committee heard testimony about everyone’s favourite C-11 topic – algorithms. This time, associate professors from three Canadian universities provided the committee with their thoughts on it.
Taking a back-to-basics approach to his opening remarks, Blayne Haggart, associate professor, political science at Brock University explained that while the word “algorithm” can be intimidating, “all it really is, is a set of rules that are repeated over and over again.” Algorithms can be seen as a form of regulation, he said, adding that companies such as YouTube and TikTok use this automated form of regulation to decide what users see.
“In other words, they’re private discoverability rules, and these privatized discoverability regulations are not designed simply to surface the most popular content, or the content that you the viewer or reader are most interested in,” Haggart said. “These companies do not just tell us what content is popular they define what popular means. They already create winners and losers, and they define popular to fit their own interests however they decide to define them.”
This means if the CRTC were to require a change to an algorithm to facilitate a certain outcome, it would not be changing what a consumer sees from content displayed based purely on what the algorithm believes the user likes to content the CRTC wants the user to see. Private companies are already making decisions that are influencing what people see and do not see.
“It also means that researchers and creatives for that matter have to kind of reverse engineer the algorithm to understand how it works and the need for this kind of best guesswork also makes it hard to craft legislation to deal with these platforms,” said Haggart.
“One of the benefits of CRTC regulation of these platforms would hopefully be the production of data so that we can make policy based on hard evidence rather than on anecdotes,” he said, adding “It’s also important to understand these companies change the rules all the time in ways that help some creators and hurt others.”
Haggart later told the committee the idea of having discoverability rules is “not an insane idea”, rather, it is in keeping with a long tradition in Canada of promoting Canadian culture and not leaving it to the marketplace. The problem is, however, that there is a lack of understanding around what end is trying to be reached by including discoverability in C-11, he said.
Emily Laidlaw, Canadian research chair in cybersecurity law and associate professor at the University of Calgary argued a problem she sees with the bill is that while it makes room for output requirements, it does not address platform accountability adequately.
“I think one of the issues that we’re facing is a lack of enough detail in the legislation to be able to confidently direct the CRTC in what it’s supposed to do,” she said. “And I don’t think that as it stands it cures the problem of actually knowing and holding platforms accountable for what they do. That accountability mechanism, I don’t really see that – I see output requirements, but I don’t actually see the kind of accountability that we should be looking for from platforms.”
Fenwick McKelvey, associate professor at Concordia University added that “it sounds like a joke” to talk about platform accountability being delegated to the CRTC.
The Commission has “deep issues” holding monopolies in Canada to account, he argued. Noting he has a lot of experience dealing with technical matters in front of the CRTC, McKelvey said the Commission has not demonstrated technical competence, which is concerning.
Both Haggart and Laidlaw echoed his concerns.
