Since its introduction in early April, the Online News Act (Bill C-18) has flown below the public’s radar screen. There have been a few op-eds and considerable coverage on my blog (I’ve posted here, here, here, here, here, here, here, here and released podcasts on the bill with Sue Gardner and independent digital media publishers Farhan Mohamed and Jeff Elgie) but Canadian Heritage Minister Pablo Rodriguez has largely been content to rush the bill through the parliamentary process with little debate. In fact, after Rodriguez left the CBC’s Vassy Kapelos visibly puzzled, he has said little about it. He has never given a speech on the bill in the House of Commons and the government successfully cut off debate after allocating just two hours to it. Bill C-18 is now headed to the Standing Committee on Canadian Heritage with hearings that could start as soon as the end of this week.
This post marks the first in a lengthy series that explain why the bill is a bad solution to a real problem. The series starts with posts that examine some of the specifics in the bill, including problematic definitions for making available news, news businesses, and even the definition of news itself. Once I’ve laid the foundation, the series will highlight some of the implications of the bill, including breaches of Canada’s international trade, treaty, and constitutional obligations; the risk it will hamper efforts to combat misinformation; and the plethora of market problems it would create related to government interference, an independent press, competition, and our dependence on big tech.
I must preface criticisms of Bill C-18 by noting that few dispute the importance of a robust, diverse media sector and the challenges it has faced in recent years in adjusting to far greater competition both local (dozens of new digital-first organizations have popped up in recent years) and foreign (services such as the NY Times, Washington Post and many others actively compete for Canadian subscribers). Changing market dynamics have also obviously changed the digital ad market, with more money moving toward companies such as Google, Facebook, and Amazon. The shift has little to do with the availability of links to news stories, but rather is largely the result of a combination of a better ad model (more precise information and targeting) and advertisers moving with the audience. Indeed, the emergence of Amazon as the third largest digital ad platform and the growth of others (soon including Netflix) highlight the tenuous connection between news and digital advertising trends.
Yet given the importance of the sector and the challenges of economic transition, I am supportive of government support for the sector. Several years ago, 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 that have been 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, transparent implementation that does not favour legacy companies over new, innovative services. The transparency has thus far been a failure requiring immediate action. But it is still relatively early in the process and the government should have been content to allow those programs to play out and judge the need for further measures afterward.
But rather than focus on programs that have offered hundreds of millions in support, Bill C-18 turns to the Internet platforms and the argument that there should be fair compensation for the use of journalist content. While there might indeed be support for a bill that did that, the reality of Bill C-18 is far different. The basic principle of the bill is simple: encourage large digital platforms to negotiate payment with news organizations for using news with the prospect of a mandated arbitration system overseen by the CRTC should they fail to reach agreement. Leaving aside the reality that most major Canadian media organizations already have deals with these companies for actual use, the bill stretches the meaning of “use” far beyond a reasonable standard, creating serious risks of setting precedents for payments for mere linking to content and placing the free flow of information online at risk.
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 that it creates. Instead, the bill triggers a mandatory compensation process where news content is “made available” on Internet platforms, called digital news intermediaries (DNI). 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 would think is covered by making available, namely when the platforms reproduce the news content. Yet even this definition may be over-broad. 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? The Bill C-18 definition says “any portion of it”, which suggests even that minimal use such as a headline might be treated as making news content available. As will be further discussed in a later post on copyright, mere links, headlines, or even short blurbs fall short of copyright protection for the news publishers.
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, an approach not found anywhere else in the world. 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 using the Globe’s content? 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 using the content? Once again, the government says that it is. When members of the Standing Committee on Canadian Heritage link to news stories on their Facebook feeds – committee chair Dr. Hedy Fry, MP Lisa Hepfner, or MP Peter Julian to name just three – why is the link compensable? Facebook hasn’t posted the full article, only a link posted by one of its users, sending interested parties to the original source. Why does that “use” merit compensation?
The truth is that no one should pay for the link. As the Supreme Court of Canada stated in Crookes v. Newton, a case that examined links in the context of defamation:
Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content. The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content-neutral – it expresses no opinion, nor does it have any control over, the content to which it refers.
The court added:
The Internet’s capacity to disseminate information has been described by this Court as ‘one of the great innovations of the information age’ whose ‘use should be facilitated rather than discouraged’. Hyperlinks, in particular, are an indispensable part of its operation.
So concerned was the Supreme Court of Canada with the importance of links that in considering potential liability for defamation for a link, it warned “given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning.” Bill C-18 does exactly that. If the government thinks that legislation is needed to mandate payment for use of news articles, it should amend its bill to reflect actual use as most would commonly understand it. As it stands now, it seeks payment under a broad “facilitating access to news” standard, including through linking. The bill should be amended by limiting making available to actual reproduction. Without that amendment, it establishes sets a dangerous precedent that could result in many other groups claiming rights to compensation for linking to their content and create a serious risk to sharing information online.