Last week Canadians received a dual dose of bad policy prescriptions through Bill C-18 which seeks to “regulate digital news intermediaries” and the Budget Act which indicates that twenty years will be added to the duration of copyright protection, as was “agreed under the Canada-United States-Mexico Agreement.”
Lengthening copyright term will please the likes of Disney and other corporations which hold the rights to masses of popular, profitable, creative works. But term extension affects all protected works, whether they are profitable or even in use. Unnecessary copyright protection creates hurdles for archivists, scholars, students, authors, artists, and musicians, who wish to preserve, learn from, or build on, such content. (Michael Geist has described some of the harm that will be inflicted on Canadians.) This is not healthy for Canada’s overall wellbeing; for the last twenty years, our Supreme Court has repeatedly emphasized the importance of legitimate, unauthorized uses facilitated through user rights and the public domain.
Canada could mitigate the worst effects of term extension by expanding legitimate, unauthorized uses of protected content. However, the Federal Government appears disinterested in facilitating use: “The government is committed to ensuring that the Copyright Act protects all creators and copyright holders.” Copyright users only receive attention as consumers in a market. This despite copyright’s 300-year history of lawful, unauthorized uses that supported creativity, education, and the growth of new industries.
Such details are already in the hands of the Federal Government. In their mandate that spanned 2015-2019, the then-Standing Committee on Industry, Science, and Technology did all Canadians proud with an unbiased, comprehensive review of the Copyright Act. With respect to term extension, the Committee recommended requiring “rights-holders to register their copyright” in order to assert and receive protection for the additional twenty years.
Registration affords copyright owners the opportunity to decline the extra twenty years of protection when those years provide no added benefit. Copyright users are then able to distinguish between protected material and freely, fulsomely usable, material. Registration facilitates choice.
Yet that Industry report was left to gather dust; in February 2021, the Federal Government sought fresh consultation on the matter of term extension. The outcome of which is still not publicly known. Instead, Canadians were provided the details of Bill C-18 which is poised to do more harm than good.
If left unchanged, C-18 would establish a framework in which digital news intermediaries (Google and Facebook) are compelled to pay for Canadian news served up on their platforms, though both have already initiated agreements whereby payment is provided when articles are reproduced in full. But C-18 requires payment for uses involving any portion of news content. Even more disturbing is the requirement that simply providing access to news—a link—is deemed a compensable use. Such links are to the advantage of Canadian media by increasing traffic to their sites. And, more to the point, linking to content is not reproduction/communication of that content. The Supreme Court of Canada settled this matter more than ten years ago; in Crookes v. Newton (2011) , then-Justice Abella (writing for the majority) stated: “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 (para 30).”
Demanding payment for links is not only bizarre, it risks destabilizing how linking is treated for all Internet operations carried out in Canada. And herein lies the problem. While this government has taken care not to frame this as a copyright amendment, the thrust of the bill revolves around the copying of content. This is the purview of copyright. Requiring that links be paid for as a matter of regulation will be seen as indication that, in Canada, all links should be paid for.
Yet neither copyright nor the Internet can be confined as a domestic matter. International copyright treaties require that all creators be treated equally within countries. Given the borderless nature of the Internet, it would be only a matter of time before other countries expect the same treatment for links to their content. Setting aside the nightmare of administration that such a framework for payment would entail, the net result will echo what we have seen throughout Canada’s history–increasing the scope of copyright only means more money leaving the country to benefit foreign copyright owners, than what remains to support homegrown entities.
The premise of C-18 is that Canadian media must receive fair compensation. The simplicity of the word fair masks the complexity of the criteria to be met and the control asserted over the process and potential arbitration. The CRTC will have the final word, along with expanded powers. And for all the hubris of the bill—to bring the tech giants to heel—C-18 would achieve the opposite. Michael Geist writes:
The power of large Internet platforms clearly present policy challenges and broader societal concerns. … But establishing a cross-industry subsidy model premised on little more than one sector being more profitable than the other further embeds the reliance on big tech. Indeed, rather than creating alternatives to big tech, it renders the Internet companies even more powerful.
It is hard to imagine a more dysfunctional attempt at legislation. Canadians can only hope that saner heads will prevail.
Fair Duty 