Yesterday I took a break from talking about Bill C-10 to appear before the Senate Standing Committee on Transport and Communications as part of its study on Bill S-225, Senator Claude Carignan’s bill that proposes copyright reform as a mechanism to address the challenges faced by the news media sector (the bill is the focus of this week’s Lawbytes podcast, featuring a conversation with Senator Paula Simons). I was joined by representatives from News Media Canada and Facebook, which made for an engaging discussion. My opening statement is posted below:

Appearance before the Senate Standing Committee on Transport and Communications, June 16, 2021

Good evening. My name is Michael Geist. I’m a law professor at the University of Ottawa where I hold the Canada Research Chair in Internet and E-commerce Law and I’m a member of the Centre for Law, Technology and Society. I appear in a personal capacity representing only my own views.

I’d like to thank the committee for the invitation to appear on Bill S-225, which both raises some critically important national policy issues and gives me the opportunity to talk about something other a certain Broadcasting Act reform bill.

Senator Simons appears on my podcast this week and she rightly notes that no matter ones view of this bill, it has sparked discussion and public debate on the future of media and journalism in Canada, which is something we all should welcome.

That said, I come today with criticism of the bill, which I respectfully think is an ill-advised foray into copyright reform.  First, it misunderstands the technology and doesn’t actually address the issue at all. Platforms such as Facebook and Google only include hyperlinks, sometimes accompanied by the headline and a short blurb from the underlying article. Bill S-225 would seemingly not touch the actual uses on those services since it excludes hyperlinks and is limited to the work or a substantial portion thereof. I should caution that the solution is not to expand the scope of the bill by covering hyperlinks, which would run counter not only to established law, but create a risk to freedom of expression by limiting the ability to cite to other works.

Second, even if a blurb was viewed as a substantial portion, copyright law already would address this and require either a licence or that the work be covered by an exception such as fair dealing, which the Supreme Court views as a user’s right. In this instance, there is a strong argument it would qualify as fair dealing, which the Copyright Board would be required to consider as part of its assessment, leaving little for which to compensate.

Third, the proposal does not address the fact that many of the articles on platforms are posted by news organizations themselves. To compensate those organizations for the articles they post would create an odd dynamic where they could effectively guarantee payment through their own social media posts. Those posts – which are subject to a licence agreement that the organization itself agrees to – should not be compensated and would also require exclusion by the Board.

Fourth, the Copyright Board is known for many things, but speed of process is not one of them. Giving the Board a new tariff to address will take years of hearings and litigation, providing little, if any, remuneration until the latter half of the current decade.

But beyond my concerns with Bill S-225, I have a broader concern with government intervention into this issue. This is not to say that there should not be government support for the sector. I believe there should. The sector lobbied heavily for government support and got it, with hundreds of millions in tax dollars poured into programs and tax breaks. The programs we’ve seen introduced – the Local Journalism Initiative, the Journalism Labour Tax Credit, and the Digital News Subscription Tax Credit – offer some hope, provided they maintain a neutral implementation that does not favour legacy companies over new, innovative services.

However, the new demands for further government intervention, whether by way of legislation or intervening in negotiated licensing has to date caused more harm than good. When Heritage Minister Steven Guilbeault calls linking to social media stories immoral even as he advertises on those services and regularly links to online stories, the message is that government intervention is on the way.

This creates harms several ways. First, there have been numerous deals in Canada, including with members of News Media Canada. The suggestion that Le Devoir can strike a deal but the Toronto Star can’t is absurd. As some organizations hold out hope for government intervention in the hope of getting a better deal, the delays become an own goal and hurt the sector at a difficult time.

Second, the threat of government intervention runs the risk of self-censorship by Canadian media organizations. Indeed, I know of instances over the past year where organizations decided against running approved opinion pieces critical of Guilbeault, leaving the unmistakable sense that criticizing the minister who was most likely to intervene on behalf of the sector was not good for business.

Third, this blurring of editorial and business occurs in other ways. I believe the lobbying campaigns have hurt the credibility of Canadian media organizations by devoting front pages to self-interested lobbying efforts that don’t provide value for subscribers, but do call into the question the credibility and impartiality of the publications.

Fourth, the policies invariably seek to protect legacy companies at the expense of innovative start-ups that are finding alternative ways to cover the news and develop new business models. Support for the sector is one thing, but creating barriers to innovation is entirely another.  We must be careful that in the rush to help the sector, we do not ultimately harm the long-term health of the future of journalism in Canada.

I look forward to your questions.