The Toronto Star reports that Senator Claude Carignan, a Conservative Senator, plans to introduce a new bill that would amend the Copyright Act to create a new compensation scheme for media organizations by establishing a new collective rights system for the use of news articles on digital platforms. I’ve written extensively about why calls for mandated compensation for linking to news articles on social media sites is an ill-advised policy and how the media organizations themselves are responsible for much of the posting. Heidi Tworek has written about the risks of using IP to address the issue, which she discussed on my Law Bytes podcast (Jeff Elgie of Village Media also appeared on a recent podcast episode to criticize the lobbying campaign for new payments).
Senator Carignan’s bill [will add link once available] seeks to address the issue by purporting to create new copyright rights in media articles. The bill envisions facilitating a copyright collective asking the Copyright Board of Canada to establish a new tariff for digital platforms to pay for the inclusion of news articles on their sites. The bill provides that the government would decide which digital platforms are subject to the system (there are no clear standards articulated in the bill). The right to this new remuneration would apply:
26.2(1) If a journalistic work or any substantial part thereof is reproduced or published on a digital platform that is owned or controlled by a designated digital platform provider, the Canadian journalism organization that owns the copyright in that journalistic work is entitled to remuneration.
Note that the same provision excludes merely linking to an article:
(3) No entitlement to remuneration under subsection (1) exists in respect of a hyperlink to a journalistic work.
Leaving aside doubts about whether there is any need for this mandated remuneration system, it is difficult to pick what is the worst part of this proposal. 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. This reform 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. The blurb is a not full copy of the work nor is it a substantial portion. By its own definition, the reform would not address the articles that appear on platforms.
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 or user right. In this instance, there is a very 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 news organizations for the articles they post would create an odd dynamic where media organizations 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 require exclusion by the Board.
Fourth, creating a subjective system in which cabinet decides which platforms must pay and which are excluded is practically an open invitation for a trade challenge. The Canadian government can’t simply pick and choose a few U.S. companies for payment with no established criteria for why some are in and others are out.
Fifth, 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.
Canadian Heritage Minister Steven Guilbeault insists that his own legislation on this issue is forthcoming. But rather than interfere in the market and risk access to news content on platforms, Canada would do far better by implementing the previously announced industry support mechanisms and encourage all news organizations to spend their time competing in the market, rather than focusing their energies on lobbying that leads to poorly thought out bills such as the one introduced by Senator Carignan.