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and how the emergence of generative AI renders the bill, which does not cover services like ChatGPT, already outdated.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.