The series on why Bill C-18, the Online News Act, is a bad solution in search of a real problem has thus far focused on three issues: the risk to the free flow of information stemming from mandatory compensation for linking, how the bill encourages clickbait and other low quality news given the absence of standards in the definition of “news content”, and the unprecedented government intervention in a sector where independence is essential. Today’s post raises an unlikely issue given that Bill C-18 is the responsibility of Canadian Heritage Minister Pablo Rodriguez, who also has part responsibility for copyright law in Canada. Buried within the bill is Section 24, a short provision with big copyright implications:
For greater certainty, limitations and exceptions to copyright under the Copyright Act do not limit the scope of the bargaining process.
What does this mean and why is it in the bill?
Bill C-18 is designed to force Internet platforms (called “digital news intermediaries”) to negotiate agreements with news organizations making news available. However, one of the problems with this approach is that platforms don’t typically use the news in a manner that would be compensable. For example, the platforms may link to the news, feature a headline with the link or sometimes offer a one-or-two sentence summary or quote from the article. The reality is that these uses are generally permitted under Canada’s fair dealing copyright law rules and does not require a licence or compensation. This presents a quandary for the government, which wants to require payment but it knows that the platforms are permitted to make use of the works without payment.
Section 24 is designed to address that by effectively suspending the fair dealing rights of the platforms for the purposes of negotiating an agreement. In other words, notwithstanding the platforms’ copyright rights, the government wants to set those rights aside in this case and force bargaining as if they did not exist. In doing so, it is violating the fundamental principle that underlies Canadian copyright law and breaching its obligations under the Berne Convention, the international treaty that governs copyright law.
On the domestic front, the Supreme Court of Canada has repeatedly affirmed that fair dealing is a user’s right. In fact, just this summer it ruled:
Copyright law does not exist solely for the benefit of authors: York University v. Canadian Copyright Licensing Agency (Access Copyright), 2021 SCC 32, at paras. 90-91. Its overarching purpose is to balance users’ and authors’ rights. It does this by securing just rewards for authors while facilitating “public access to and dissemination of artistic and intellectual works, which enrich society and often provide users with the tools and inspiration to generate works of their own”: Access Copyright, at para. 92; see also Théberge, at paras. 30-31. The Copyright Act uses various tools to achieve this balance. Fair dealing, for example, promotes this balance by allowing “users to engage in some activities that might otherwise amount to copyright infringement.”
Bill C-18’s suspension of a user’s right for a particular class of user runs afoul of the core principle of Canadian copyright and the effort to ensure the same balance that journalists rely upon every day.
The approach also may violate Canada’s international copyright obligations. Article 10(1) of the Berne Convention creates a positive obligation to include a right of quotation within national copyright law, specifically citing the right to quote news articles:
It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.
Unlike some limitations and exceptions, the right of quotation is not optional. The Convention states that it shall be permissible to make quotations from a work. That is precisely what Internet platforms are doing and the right the government is seeking to remove for the purposes of mandatory payments. It is an approach not found in Europe or Australia for the obvious reason that it is not consistent with international copyright law. The government should not be picking and choosing which users are entitled to user rights within copyright law and derogating from a mandatory obligation in international copyright law. Section 24 of the bill should be deleted.