Newspaper Stands by Sue Thompson (CC BY-ND 2.0) https://flic.kr/p/8dwwVa

Newspaper Stands by Sue Thompson (CC BY-ND 2.0) https://flic.kr/p/8dwwVa

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Digging Into the Government’s Online News Act Claims, Part One: Compensation For “Use” of News Content

With the Online Streaming Act having passed second reading in the House of Commons and headed for further study at the Standing Committee on Canadian Heritage, the government moved swiftly to second reading debate on Bill C-18, the Online News Act. I’ve already written several posts expressing concern about the overbreadth of the bill and its implications. The House of Commons debate is just getting underway with the opening defence of the bill delivered by Chris Bittle, the Parliamentary Secretary for Canadian Heritage, presenting a vision of minimal intervention based on fairness:

The compensation that tech giants would provide to Canadian media through Bill C-18 would represent a giant step in ensuring the viability of strong and independent journalism in Canada, which is essential to our democracy. That is what Bill C-18 would do. It is simple. Tech giants would fairly compensate Canadian journalists when they use their content. That is it: no more, no less. It is a market-based solution that involves minimal government intervention, and I think everyone in this place can agree on that.

The government is relying on two claims here: fair compensation for the use of journalist content and a market-based approach with minimal government intervention. While there might indeed be support for a bill that did that, the Bill C-18 reality is far different. The bill extends well beyond compensation for use, stretching the meaning of “use” far beyond a reasonable standard and creating a level of intervention that simply cannot be fairly described as minimalist. This post examines the notion of fair compensation for Canadian journalists when their content is used with a post on “minimal” intervention to follow.

First, it should be noted that the bill doesn’t actually use the word “use” (with the exception of a reference to use within the mandatory arbitration system). Instead, the bill triggers a system of mandatory compensation where news content is made available by Internet platforms, called digital news intermediaries (DNI) in the bill. These DNIs will surely include Google and Facebook, but could extend to Twitter, LinkedIn, Apple, and many others.

What does it mean to make news content available? The bill states at Section 2(2):

For the purposes of this Act, news content is made available if
(a) the news content, or any portion of it, is reproduced;
or
(b) access to the news content, or any portion of it, is facilitated by any means, including an index, aggregation or ranking of news content.

The sub-section (a) definition likely fits what most Canadians might think is covered by making available, namely when the platforms reproduce the news content. Yet even this definition may be overbroad. Reproducing an entire article is one thing, but what if the only portion reproduced is the headline? What if the only news content reproduced is a sentence or two from the article? What if artificial intelligence is used to create a two sentence summary but there is no reproduction of the actual text at all? The Bill C-18 definition says “any portion of it”, which suggests that even minimal use such as a headline might be treated as making news content available.

But is it reasonable to legislate that posting a news headline constitutes making that news content available? Can Canada even do that and still remain compliant with international copyright laws under the Berne Convention which require countries to feature an exception for quotation? Indeed, international copyright law recognizes the critical importance of enabling quotation free from limitations as an essential element of expression, yet Bill C-18 adopts an approach that may violate that principle by requiring compensation for quotation.

Sub-section (b) moves far beyond reproduction into a realm that bears little resemblance to use or a reasonable definition of “making available”. It covers facilitating access to news by any means. In what way is facilitating access to news the same as making it available (much less using it)?  A facilitating access to news standard is virtually limitless: newsstands, news screens in elevators or taxis, television manufacturers, or newspaper box makers can all be said to be facilitating access to news. The bill limits its scope to DNIs, but the policy principle that this bill is simply compensating for the use of content is twisted beyond all recognition.

In fact, it is clear that this extreme approach is precisely what the government intends. By citing examples such an indexing, aggregation or ranking of news content it is saying that virtually anything that a platform does – linking to news articles or merely to news organizations, indexing content at the request of the news organization (even if the actual content is not openly available as is the case with paywalled sites), or creating a list of news articles on a given topic are all “facilitating access to news content” which requires compensation.

Would Canadians agree that this link to the front page of the Globe and Mail is making the Globe’s available? If this link appears on Google or Facebook, the government says that it is. If someone searches for newspapers in Montreal to learn more about developments in the city, is the list of newspapers in that city making the content available? Once again, the government says that it is.

The initial debate on Bill C-18 featured several interventions about the problems of misinformation. In light of the actual provisions in the bill, claims that it simply requires compensation for use might ironically be fairly characterized as misinformation. Unfortunately, the problematic claims associated with the bill don’t stop there as tomorrow’s post on market intervention will illustrate.

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