Bill C-10: Modernizing the Broadcasting Act

“We need modernized legislation, regulation, and a modernized CMF to deliver programs in today’s environment.” – Valerie Creighton 

Valerie Creighton, CEO of the Canada Media Fund, appeared on February 22, 2021 in front of the Standing Committee on Canadian Heritage to talk about Bill C-10. The Bill to amend the Broadcasting Act was tabled in the House of Commons November 3, 2020 and is now being studied by the Committee, which may then suggest amendments before it is voted on again by the House. 

The current Broadcasting Act that governs the Canadian broadcasting system was enacted in 1991. To put this into historical context, the year that the Broadcasting Act was enacted the Billboard No. 1 song was Bryan Adams ‘Everything I do, I do it for you’ and ‘Terminator 2: Judgment Day’ was the No. 1 film at the box office for North America. A lot has changed since then. Netflix. Amazon Prime. Disney+. AppleTV+. Crave. CBC Gem. Club Illico...

As the Internet and its delivery of content grew over the intervening decades stakeholders have argued for modernized legislation that can either stand the test of time and maintain the principles of the Broadcasting Act throughout innovation or to allow the CRTC to deregulate to support innovation and increase competitiveness.

In 2018 the federal government established the Broadcasting and Telecommunications Legislative Review Panel to review both the Broadcasting Act and the Telecommunications Act and make recommendations to modernize the legislation. After reviewing submissions and conducting outreach, the Panel issued their extensive recommendations in January 2020. Bill C-10 implements some of the recommendations and is supported by the Panel. 

While some commentators object to Bill C-10 as so imperfect that it needs to be scrapped, in her speech Creighton argued that it is a positive step forward that should be improved during the committee process.

“Our system has become archaic,” said Creighton. “The orderly marketplace is a thing of the past, but the economic potential for Canadian content has never been greater. Bill C-10 is a critical step to unlock change.”

Creighton outlined for the Committee that it is critical to modernize Canadian broadcasting policy now because of the shifts in consumer behaviour and introduction of new industry players such as foreign-owned online services like Netflix and Amazon Prime. There has been a reduction in cable and satellite subscriptions that have impacted the CMF’s revenues and put its ability to fund Canadian programming at risk. This is happening at a time when Canadian productions such as ‘Jusqu’au déclin’ and ‘Schitt’s Creek’ have achieved unprecedented success in Canada and around the world. Creighton advised the Committee that “this is not the time to lose the economic impact or stifle the creative growth of this industry.”

Bill C-10 will make broadcasting regulation platform neutral so that it applies both to traditional broadcasting and ‘on demand’ services delivered through the Internet (now known as ‘online undertakings’). Creighton affirmed the CMF’s support for a Canadian broadcasting system that is “platform-agnostic to domestic and international content distribution”. As Creighton has said in the past: “The government has clearly stated all players in the screen-based sector, whether Canadian or not, will play by the same rules. This will help create a fair, competitive environment in this growing sector.”

This aspect of Bill C-10 has the biggest potential impact on Canadian programming as it will clarify that the CRTC has jurisdiction to impose Canadian programming expenditure requirements, programming quotas and/or discoverability (i.e. promotion) regulations on online undertakings as well as traditional broadcasting. Creighton advised the Committee that Bill C-10 should make “growth in direct investment in Canadian content production in English and French” a priority and pursue a strategy that leverages the legacy and success built to date. 

Currently, though some foreign services spend a lot of money on production in Canada, most of those shows use Canadian crews but are not Canadian productions. They use few Canadian creative talent and are not owned by Canadian producers. If Canadian producers are limited to being service producers on their productions because the online undertakings own all the rights, the lack of revenues from exploitation around the world would limit their ability to be a sustainable industry. Creighton therefore argued in favour of ensuring that Bill C-10 prioritizes “Canadian ownership of intellectual property”.

A key element in the modernized broadcasting policy is to emphasize the need for the Canadian broadcasting system to reflect the diversity of Canadian society and specifically refers to the needs of racialized communities, those of diverse ethno-cultural identities, abilities, sexual orientations and gender identities.

The Bill makes a further commitment that the Canadian broadcasting system is to offer opportunities for Indigenous-produced programming and broadcasting and no longer limits support for Indigenous programming to ‘as resources become available’. While the new language reflects a ‘nothing about us without us’ commitment that ensures a welcome support of Indigenous broadcasting, Indigenous producers and Indigenous language programming, Creighton advised the Committee that the CMF supports the recommendation of the Indigenous Screen Office to use the more specific language of ‘First Nations, Inuit and Métis’ rather than ‘Indigenous’ as part of that commitment.

The Bill does not however extend the need to reflect the diversity of Canadian society to a need for programming that is produced and broadcast by other underrepresented communities such as racialized, LGBTQ2+ or persons with disabilities. Creighton supported the proposals of both the Indigenous Screen Office and the Racial Equity Media Collective to address this legislative gap and ensure the growth of representation in the Canadian broadcasting system with the support of regulation.

The amendments to the Broadcasting Act are intended to create a legislative framework that then allows the CRTC to collect data, gather evidence and make decisions after weighing competing interests. The legislation sets out broad principles that can be applied by the CRTC as the Canadian broadcasting system evolves over time.  The government will be attempting to speed up the usual regulatory process (which could take two years or more) to nine months with a Policy Direction which will provide the CRTC with guidance on how to implement the modernized broadcasting policy. The CMF’s recommendations are therefore applicable to both Bill C-10 and the Policy Direction. 

Creighton ended her presentation with optimistic language: “With the right legislative language, we can achieve the phenomenal levels of success available to us in this new future.”

Kelly Lynne Ashton
Trained as an entertainment lawyer, Kelly Lynne Ashton has been working in the Canadian film, television and digital media industries for over twenty-five years. She has worked as a business affairs executive in several Toronto television production and distribution companies, including Atlantis Films Limited and the Owl Group of Companies. Kelly Lynne then entered the world of digital media to act as Senior Producer at children’s web studio Big Orbit Inc. While at Big Orbit she also developed, managed and marketed the online youth research company Reactorz. She has also worked in government relations and media policy as Director of Policy at the Writers Guild of Canada. Kelly Lynne is currently bringing together the different strands of her career in the Canadian media industries - legal, business, marketing and research - and providing consulting services to clients in all areas of the industry including evaluation services for various funds, authoring research reports and programming industry conferences. Kelly Lynne obtained a Certificate in Leadership and Inclusion from Centennial College and now provides clients with diversity and inclusion consulting services.
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