A new streaming bill is close to becoming law in Canada. Here's how it works
Joseph Pugh | CBC News | Posted: March 3, 2023 9:00 AM | Last Updated: March 3, 2023
Bill C-11 creates a framework to regulate streaming platforms like Netflix, Disney+ and Spotify
A bill that will update Canada's laws around broadcasting for the first time in the internet age is one step away from becoming law and impacting popular streaming platforms.
Bill C-11, also known as the Online Streaming Act, creates a framework to regulate digital streaming platforms like Netflix, Disney+ and Spotify, and would require them to contribute to the creation and promotion of Canadian content. The bill passed its third reading in the Senate last month with 26 amendments. It will be up to the House of Commons to decide which of those changes to keep before passing the bill into law.
Canadian creative unions, including the Writers Guild of Canada and Canadian Media Producers Association, are generally supportive of the bill, but have some concerns that its language could create a two-tiered system that would mean Canadian broadcasters are being held to higher standards than foreign streamers. Meanwhile, Canadian content creators on sites like YouTube and TikTok are concerned about how the bill will impact them.
With Bill C-11 so close to the finish line, here's how it will work.
What is the point of Bill C-11?
Since 1968, the Broadcasting Act has set a series of goals for Canada's broadcasting system, including that it should strengthen Canada's cultural fabric, and that it should make use of Canadian talent.
To do this, the country has rules that define what counts as Canadian programming and how much of it Canadian TV and radio broadcasters have to play. They must also contribute financially to the development and promotion of Canadian content.
Right now, those rules don't apply to online broadcasters like Netflix, Disney+ and Spotify, which are earning money in Canada without being required to reinvest in Canadian content.
Bill C-11 wants to give new power to the country's broadcasting regulator and extend the current broadcasting policy to the digital realm.
According to Vass Bednar, executive director of McMaster University's Public Policy in Digital Society program, Canada is doing its best to extend its cultural values and expectations to digital platforms.
"And instead of building a whole new vehicle to do that, we're trying to use the one that we have already, which is the CRTC," she said.
Who defines Canadian content?
Bill C-11 doesn't define what counts as Canadian content on the internet, or say how much Canadian content a foreign streaming service needs to have.
That task would fall to the Canadian Radio-television and Telecommunications Commission (CRTC), an independent organization that regulates and supervises Canada's broadcasting system.
It's the CRTC's job to make and enforce rules that achieve the goals of The Broadcasting Act. Bill C-11 updates what those goals are, and gives the CRTC new powers to achieve them.
For example the CRTC defines Canadian content for different types of media. There are different rules for television productions than there are for songs.
What changes is C-11 trying to make?
The Broadcasting Act was last updated in 1991, before the internet and streaming changed how we consume much of our entertainment.
Bill C-11 brings the CRTC into the internet age, giving the regulator the authority to impose conditions on how online streamers support Canadian content and contribute to production funds, as well as ensuring Canadian programs and films show up in search results.
It also includes a clause that would require foreign online streamers to make use of Canadian creative talent. It would be up to the CRTC to define exactly what that looks like.
Alex Levine, the president of the Writers Guild of Canada (WGC), says when foreign streaming platforms became available in Canada, it meant less money for traditional broadcasters here, which means less investment in creating Canadian programming.
"We have 25 per cent of the actual work for Canadian screenwriters that we had in 2014 in terms of number of episodes created," he said.
According to Levine, the concerns are even more pronounced for writers than they may be for other Canadians working in film and television production.
"We only work on Canadian content. We don't work when, for example, Netflix or HBO decides to shoot a show here."
Without the bill, Levine says market forces mean Canadians "will see a world reflected back to them that is determined by studio executives in Los Angeles and not by Canadian artists."
C-11 and foreign broadcasters
While supportive of the bill overall, the WGC is concerned about a clause that would make foreign broadcasters subject to different rules than their Canadian equivalents.
The current Broadcasting Act has language that requires Canadian broadcasters to make "in no case less than predominant use" of Canadians in making and presenting content.
Bill C-11, would keep that language, but also require foreign online broadcasters to make the "greatest practicable use" of Canadians and contribute to the production of Canadian programming.
The clause concerns Reynolds Mastin, the CEO of the Canadian Media Producers Association (CMPA), who noted in a statement that as the bill currently stands, Canadian companies are being held to a higher standard than foreign streamers.
"This stands in direct opposition to the government's stated objective to level the playing field and support Canadian creators and companies," he said.
"Allowing foreign companies to use fewer Canadian creators will negatively impact Canada's cultural industry."
Senator Paula Simons says Canada's trade obligations may prevent the government from being able to make foreign streamers follow the same rules as Canadian broadcasters.
"What C-11 has tried to do, and what we've tried to do with various amendments is to strike a balance," she said. "I think for each streamer there will be a different deal struck and there will be a different way that they can contribute."
How does it impact online creators?
There has been a lot of discussion surrounding how Bill C-11 might impact user-generated content from creators on sites like TikTok or YouTube.
The bill would allow the CRTC to create discoverability rules to ensure Canadians are able to see Canadian content online.
Some creators are worried that if those rules extend to social media sites, it may mean that their videos are shown to people who wouldn't be interested in them, which they argue could hamper their success, since many user generated sites reward creators based on positive engagement.
"I'm looking at it saying, 'Well, am I going to be able to realize my dream or my vision for my content?'" says Hamilton-based TikToker Nathan Kennedy, who has more than half a million followers on the platform and visited Ottawa last year to express concerns about the bill.
Some Senate amendments were tweaks to language about user generated content.
"Some of our anxieties were realized and passed with the Senate," Kennedy said. "And so that was validating in a sense, to say that we're not just like making this up."
In November then-CRTC Chair Ian Scott told a senate committee studying the bill that it wouldn't allow the regulator to manipulate algorithms to achieve its goals, and that it wasn't interested in doing so anyway.
"The CRTC's objective is to ensure that Canadians are made aware of Canadian content and that they can find it," he said.
"I wish to assure you and Canadians more broadly that the CRTC has no intention of regulating individual TikTokers, YouTubers or other digital content creators."