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?
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The first two posts in the series on why Bill C-18, the Online News Act, is a bad solution in search of a real problem focused on the risk to the free flow of information stemming from mandatory compensation for linking and how the bill encourages clickbait and other low quality news given the absence of standards in the definition of “news content.” The series continues by highlighting the remarkable extent to which the government and its regulator (the CRTC) intervene in the news sector, an approach that creates significant risks to an independent press.
The government appears to recognize the risks that come from intervention and have therefore sought to assuage concerns by describing the bill as “a market-based solution that involves minimal government intervention.” Yet the reality is Bill C-18 features an unprecedented level of government intervention into the market in the news sector. Just how extensive is the government’s involvement? Some of the provisions that delegate decision-making powers to the government or CRTC include:
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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.
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The first three posts in this series on Bill C-11 have focused on the risks of regulating user content, the risks to Canadian creators, and the risks of increased consumer costs and less competition. Today’s post identifies another risk with the bill: the prospect of a trade challenge under the CUSMA that could lead to billions on tariff retaliation that target some of Canada’s most important economic sectors. The possibility of a U.S. trade battle over the bill is no idle speculation even if downplayed this week by an official from Global Affairs. This summer, U.S. Trade Representative Katherine Tai raised the issue directly with Canadian Minister of International Trade Mary Ng. While the Canadian readout of the meeting notably excluded any reference to the issue, it was cited in the U.S. readout of the meeting:
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