The longstanding debate over whether Bill C-18, the Online News Act, requires payment for linking came to an end yesterday. Government officials admitted that even basic quotes from news articles that include a hyperlink to the original source would scope user posts into the law and require platforms such as Google and Facebook to negotiate payment for the links. As noted below, even that position may understate the impact of the bill, which appears to also cover a user post of a news quote without a link. In other words, merely quoting a few sentences from a news article on an Internet platform is treated as making news content available, which triggers a requirement for the platforms to negotiate payment. This position runs counter to Canada’s copyright obligations under the Berne Convention and has no place in a country committed to freedom of expression.
The effort by the government and Bill C-18 supporters to downplay or deny the issue of payment for links has been shameful, particularly since it is has been readily apparent for months that payment for links are a foundational element of the proposed legislation. I’ve argued that this element represents a serious threat to freedom of expression, but yesterday’s exchange cast the issue in an entirely new light. Rather than focus specifically on the link, the question and answer exchange between Conservative MP Rachael Thomas and Heritage official Owen Ripley placed the spotlight on the basic expression rights of Canadians and the stunning over-breadth of Bill C-18.
This where the government is at with Bill C-18. A Canadian can post a quote from a news article on their Facebook page, but if they include a link to the source article, there would be a requirement for the platform to negotiate mandatory payment for linking. pic.twitter.com/8dt618rHaQ
— Michael Geist (@mgeist) November 29, 2022
The Thomas-Ripley exchange was sparked by a proposed amendment to affirm the bill does not limit the right of quotation of any party. This is no small matter since the Berne Convention, the international copyright treaty, provides a positive right of quotation for all member states. Simply put, the right to quote is inextricably connected to freedom of expression and countries must not limit those rights. Yet that is precisely what Bill C-18 does by stating at Section 24 that
For greater certainty, limitations and exceptions to copyright under the Copyright Act do not limit the scope of the bargaining process
The government’s aim is to remove the ability for platforms to argue that the use of news content on their platforms through quotation is permitted under the Copyright Act and therefore does not require payment or permission. The government now admits that the platforms are correct – this is a permissible activity – but wants to suspend the fair dealing rights of the platforms for the purposes of negotiating an agreement. Bill C-18 therefore sets aside user rights by forcing bargaining as if they did not exist. 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.
Soon after the government voted against the amendment (citing a non-lawyer’s committee testimony as evidence that there is no copyright issue), Thomas asked Ripley if a user posted a quote from a news article on Facebook and the social media giant responds to Bill C-18 by blocking news sharing on its platform, whether the quotation would be scoped into the law. Ripley responded that merely quoting a news article would not trigger the law. Thomas then followed up by asking about the consequences if the user included a link to the source material. Ripley replied that the post would then be captured by the bill and require negotiations on mandated payments.
The exchange raises three critical issues. First, Ripley actually may understate the impact of Bill C-18. Not only does the bill apply to user posts with quotations and links, it applies to posts that only contain quotations. Section 2 of the bill provides:
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.
While much of the emphasis has been on the remarkable breadth of subsection (b) and its application to links, in the case of a quotation, subsection (a) applies. The government’s position in Bill C-18 is that reproducing any portion of news content constitutes making it available. In other words, if a user posts a quote from news content, the bill would apply. As crazy as mandated payments for links sounds, this is even crazier as the bill provides that quotation of a news story requires negotiation for mandated payments. It is not clear on what basis Ripley argues that such quotes fall outside the legislative scope of the bill.
Second, even if the quotation was excluded, Ripley now expressly acknowledges that adding a link would bring the post into the scope of the legislation. The link is nothing more than citing the source of the quotation, an act that provides the reader with attribution and helps curtail potential misinformation. Moreover, the link provides value to the news outlet, since it sends the user to originating source. Yet the government’s position is that referring website traffic actually requires payment by the party providing the referral, an approach that runs counter to online commercial arrangements (not to mention common sense).
Third, the implications of this approach in Bill C-18 are devastating. As noted above, the provision violates the Berne Convention by imposing conditions on the right of quotation for the users of large Internet platforms. The approach also has dire consequences for freedom of expression, since the government is legislating that some links on some platforms require negotiated payment, while others do not. The platforms that seek to opt out of the system by blocking news sharing will be forced to police their platforms to block links and potentially even remove posts with news quotations.
The Canadian public has been slow to recognize the threat posed by Bill C-18. While Bill C-11 rightly attracts attention given its implications for expression and user content, this bill hits directly at critical expression rights, including the ability for Canadians to freely comment on news and political issues on platforms without the imposition of mandated negotiated payments by those platforms. Aided by media companies supportive of the bill, the government has misled the public on the implications of Bill C-18 for the sharing of information for too long. It is time to amend the bill by excluding links, maintaining copyright user rights, and preserving the expression rights of all Canadians.