Over the years, it has become easier for people to create and share content online. On February 2, the Federal Government introduced the Online Streaming Act (OSA), Bill C-11. The proposed legislation aims to modernize the Broadcasting Act which has changed little since 1991, before the internet became more accessible to people worldwide.

This Bill could be considered by others as a “reboot” to the controversial broadcasting bill, C-10, that was tabled last year, but failed to pass through Senate before the 2021 Federal election.

According to the Federal Government, the new legislation aims to support greater diversity in the broadcasting sector. This could mean greater representation for underrepresented communities like cultural and linguistic minorities, Indigenous peoples, racialized and LGBTQ communities and persons with disabilities.

If passed, it would subject major streaming services and social media platforms like Netflix, Instagram, Spotify and YouTube to the same rules as Canadian broadcasters. It would also ensure that such companies contribute to the creation of Canadian cultural content and pay a share of profits to Canadian artists. This could have a significant impact for print publications like the Corriere Canadese that post news and media content online.

The Federal Government claims that once implemented, the Bill will promote a more inclusive broadcasting system that is reflective of Canadian society. At the same time, C-11 aims to support Canada’s creators and ensures that the Canadian Radio-Television and Telecommunications Commission (CRTC) employs the proper tools. These mechanisms include the ability to gather information, make rules and assign penalties for non-compliance to platforms that stream into Canada.

This Bill is not without controversy. Critics argue it could lead to the regulation of people posting original content on platforms like YouTube and interfere with free speech. To quell some of those concerns, the Federal Government indicated the OSA “does not apply to individual Canadians, whether they are users, creators, digital influencers or workers”. Instead, it would apply to internet giants that broadcast commercial social media content, such as professional music videos, movies and news on their streaming platforms.

However, other concerns persist, as pointed out by Michael Geist, law professor at the University of Ottawa. He specializes in issues regarding technology law, including copyright and privacy matters. In an article titled Not Ready for Prime Time, published on his website (February 3), he highlights several issues with Bill C-11 such as the question of “regulating user generated content”.

According to Geist, the Bill contains a set of exemptions that empower the CRTC to create regulations to treat uploaded content on social media platforms as “programs” under certain criteria. Some factors include whether the uploaded content generates revenue (directly or indirectly), if the program has been broadcast by an enterprise that is licenced or registered with the CRTC, or if the program has a unique identifier under an international standards system.

This could lead to bigger problems as the criteria could be applied broadly to other areas. For example, Geist suggests uploaded videos or music that generate indirect revenue including individual podcasts could be treated as programs, essentially getting “caught up” by the rules and subject to CRTC regulation.

Other factors like who and what identifies as Canadian creators and content remain unclear. For instance, films made in Canada with Canadian actors may not be considered Canadian content if key contributors such as writers, directors or producers are not from Canada. The same could apply for music written and produced by Canadian artists if they are based outside of the country.

Before Bill C-11 can be approved and receive Royal Assent, it requires extensive review and consultation with key stakeholders and creators. The Federal government has more work ahead. Not only does it need to address the uncertainties, but also to create a level playing field for Canadian broadcasters (including print media) and big social media platforms.

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