I was pleased to appear yesterday before the Senate Standing Committee on Transportation and Communication on Bill C-18. The discussion focused on a wide range of issues, including the risks of mandating payments for links, the non-compliance with international copyright obligations, why the CBC should not be included in the payment for links system, and how a fund would be a better approach. My opening statement, which tried to identify some fixes to the bill, is posted below as text and as a Youtube video.
Appearance before the Senate Standing Committee on Transport and Communications, May 2, 2023
Good morning. My name is Michael Geist. I’m a law professor at the University of Ottawa where I hold the Canada Research Chair in Internet and E-commerce Law and I’m a member of the Centre for Law, Technology and Society. I appear in a personal capacity representing only my own views.
I have been quite critical of Bill C-18, but that criticism does not stem from doubts about the importance of a robust, diverse news sector. However, the bill as currently constructed raises significant concerns involving the free flow of information online, freedom of expression, and Canada’s international copyright and trade obligations. If left unchanged, I believe it is likely to cause far more harm than good including the possibility of blocked news sharing or indexing on Internet platforms.
There is so much discuss, including the bill’s implications for an independent press, the distortion of competition, the dependence on foreign Internet companies, the suitability of CRTC administration, and how the emergence of generative AI renders the bill, which does not cover services like ChatGPT, already outdated. But with limited time, I’d like to focus on five issues and propose some fixes.
First, the bill is fundamentally about mandated payments for links. Indeed, last week Mr. Ripley acknowledged to this committee that without linking companies like Google and Facebook are not digital news intermediaries and fall outside of the law.
The Supreme Court of Canada has warned that creating liability for links could impair the way the Internet functions. Yet payments for links are at the core of this bill and it doesn’t matter if it is an aggregate charge for all links or a per link fee. The harmful impact is the same including the prospect that the same link payment principle be applied to other policy objectives and the entire foundation for sharing information online placed at risk.
The solution? Section 2(2) should be removed and the definition of “making available of news content” – which is a requirement to be a DNI – be limited to reproduction, which is how most Canadians would understand use of news content. If Google or Facebook publish full text of articles and run ads against them, let’s talk about compensation. If it is just links – often posted by media companies themselves – it should fall outside of the framework.
Second, the definition of “eligible news business” in section 27 should be revisited by limiting it to outlets that actually produce news. The government started with supporting the sector several years ago with tax measures based on the creation of Qualified Canadian Journalism Organizations, which were defined by detailed CRA criteria. Bill C-18 expanded that approach to include broadcasters, who the PBO estimates will receive 75% of the revenues from the bill. But the House committee added another eligibility criteria based solely on holding a CRTC licence. This expansion raises trade concerns given that only Canadians can obtain these licences and turns the bill into a subsidy program without regard for actual news production.
Third, Bill C-18 violates copyright norms by suspending limitations and exceptions from the bargaining process in section 24. This runs counter to the foundation of Canadian copyright law and may violate Article 10(1) of the Berne Convention, which has a mandatory right of quotation that expressly includes newspaper articles. The provision should be removed.
Fourth, the inclusion of the CBC within the Bill C-18 framework is a mistake. In a world where Canadians often encounter either paywalls or increased misinformation when seeking out reliable news, the CBC should welcome anyone that extends the reach and accessibility of its news content for which the public has already paid. Indeed, given concerns about public broadcasters competing with the private sector for ad dollars, to have it also compete for DNI money makes matters worse. Section 28 should be amended to make all public broadcasters – federal and provincial – only eligible upon the enactment of relevant regulations.
Fifth, there are better ways to do this, including a fund model that served as the basis for the Shattered Mirror report that launched much of this public policy debate. A fund based on the Canada Media Fund model to support actual journalism with mandated contributions based on ad revenues by large Internet companies would address concerns about mandated payments for links, the independence of the press, and a myriad of eligibility concerns. The section 11 exemption order provision should be expanded by giving the CRTC the power to exempt based on contributions to the fund.
There is much more to discuss, but I’ll stop there. I look forward to your questions.
Whether it’s a tax credit, link tax or government mandated fund, they all result in the same thing – a press that is dependent on government funding either directly or indirectly. And that is not good for democracy.
Furthermore, none of these policies address the fundamental problem – the press is losing readers because there are now so many other sources of information. People can now get information directly from the government, businesses, charities, the police, bloggers like M. Geist, and numerous other sources. In other words, the press has lost its monopoly on the news.
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Re: ” In other words, the press has lost its monopoly on the news.”
I would not disagree about the loss in monopoly, but I would suggest it is the loss in the monopoly on the channel. There were significant natural monopoly effects involved in newspaper production, most of which did not really apply to the news, but more to the “advertising”. I quoted that, because what it really included was all the content that someone paid to have put in the newspaper. This included not only business advertising, but also the classifieds, and all of the announcement sections – and yes, that includes the obituaries. Almost all of those have headed elsewhere.
Newspapers may still be a key employer of journalists, but the loss of all those other items to “competitors with a lower cost structure” (to quote from several years of TorStar annual reports) meant that the channel lost that monopoly benefit.
I heard indirectly about meetings in the very early 1990s – pre-WWW! – where the classified ads manager realized what competition from newsgroups could mean – and it was not good. That would have been the time to act, and start making your ‘newspaper brand’ the place to go online to find stuff. Become your own competitor!
The real challenge seems to be that journalism has never been the key value driver for the entire channel. In 1700, coffee house news-sheets had news on one side and advertising on the other. For 300 years, those two have been bound together really only because of the channel, and, in part, because those running a printing press found that there was at least some benefit in hiring people to find news that they could print, and perhaps also (Joseph Atkinson!) because they felt this was a societal obligation.
As long as payer of your journalism salary thinks that paying you is a societal obligation, I expect we have a shot at getting what is close to unbiased news. Almost any other source of funds is going to come with directions intended to influence what gets published. In that regard, I find myself most troubled – I don’t see that any of our current possible sources – opinionated newspaper owners, shareholder owned broadcasters, corporate sub-businesses, or government-funded journalists (given the polarization of politics) – being a solid way forward into independent journalism.
Independent journalism appears to be headed towards being independent of any funding models. Suggestions, please?
“Independent journalism appears to be headed towards being independent of any funding models. Suggestions, please?”
Substack.
A lot of ex-CBC, CTV and other higher-ups given the boot for not towing the line have successfully started a profitible Substack… Tara Henley for example
I would get a little concerned when it appears that the positive voices are all internal, while the outside voices are at best neutral (links below).
More to the point above – it has been suggested that Substack directly funded some writing, by guaranteeing results no matter the subscriptions. That raises the idea that some profitable Substacks are only that way because Substack made them that way.
https://onemanandhisblog.com/2023/03/does-it-matter-is-substack-is-in-trouble/
https://www.theverge.com/2023/4/7/23674178/substack-burn-2021-numbers-bad
https://boingboing.net/2023/04/11/substack-reportedly-in-financial-trouble.html
https://thedeepdive.ca/substack-says-not-in-financial-trouble-despite-posting-negative-revenue/
In my view, the press used to be the gatekeepers of information. If politicians, businesses, charities, sports leagues, etc wanted to reach the public they had to go through the press. If the public wanted information they got most of it from the press and this attracted Advertisers.
The internet blew up the gates. Politicians, businesses, etc now could communicate directly with the public. Google and social media made this communication easier and, as a result, advertisers flocked to these platforms. The press has been left standing at the ruined gates, crying about being left behind.
The article has a large amount of information, Hope to receive many comments to make the article effective.
I watched the whole 2 hours of statements and then Q&A.
The absolutely best part was when Senator Simons asked Prof. Geist if there was any means in Canadian law to force Meta and Google to continue posting links even if they have to pay an unlimited amount of money for them.
Breaking it down, Senator Simons was basically asking if Canadian law can force a business into a business model that loses them money.
Seriously?!?!
While I appreciate the efforts she put into trying to fix C-11 (and ultimately failed because the Senate was too timid to veto the bill when it came back to them with Rodriguez’ middle finger up at them), she cannot seriously be thinking that Canadian law has any business forcing companies to do business in a way that they don’t want to, or that loses them money.
I rather think that question was asked precisely to show the limits of what the government thinks will happen.
There seems to be an odd air of inevitability about links leading to payment in the government thinking. But there is nothing inevitable about it. It is – as the minister has said – a business decision.
I think she quite expected the answer to be close to what was provided. Facebook? No. Google? Maybe. However, I suspect that Google regularly declines to show results including some sites, and so they may never been in the position of providing everything. If they are already making business decisions about what to include and what not to include, it seems unlikely that any outside party can force them into a “must carry” position.
I use the term “must carry” deliberately. It’s a term that comes out of the highly regulated space of cable television companies, and it is generally accepted that the trade-off of “must carry” often comes with significant *benefits* for the carrying party – sometimes up to and including monopoly-like provisions. For years, Similarly, Bell Canada operated with a “must serve” requirement for land-line phones for many years – but this came with monopoly like control of operating territories, and regulated rate-of-return — which means, simply enough, Bell had to give you a phone, no other company could do that, and Bell was guaranteed to make a certain level of profit doing so. (*)
I do not see us getting any where near offering terms like that in this case.
(*: To this day, in my opinion, Bell benefits significantly from the installed base of copper lines from that era, thus continuing to benefit significantly from their historical regulated monopoly status. The copper wire this comment is going out over would have been run to this location during that monopoly era.)
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