I'm sorry. In many appearances, this is the first time it's happened this badly.
First, the approach to the use of news in news articles extends far beyond what a reasonable person would consider “use”. Subclause 2(2) covers both reproduction of any portion of a news article and facilitating access to news by any means. The first part means that even reproducing a news headline or sentence summary is covered, even though that form of use is freely permitted by copyright quotation rights under the Berne Convention.
The second part means that linking or indexing to the front page of the news site—not even to an article—is treated as a compensable activity. That just can't be right; treating mere linking as a thing of value requiring compensation runs counter to Supreme Court jurisprudence on the importance of linking, and threatens the lifeblood of the free flow of information on the Internet.
If Google or Facebook copied and distributed full articles, I could understand the arguments around compensation. Indeed, those companies have struck deals in Canada to pay for exactly that. But when Dr. Fry posts a link on her Facebook to an MSN.ca article or Mr. Julian posts a link on his Facebook to a Canadian Press article, as they did this summer, like millions of other Canadians, I don't think we are anywhere near making available news a standard that should require compensation.
Second, the government has claimed the bill involves minimal market intervention, yet the reality is that there is an astonishing number of standards and bargaining rules established by the government or the CRTC in the bill, which has a real-world impact on government interference, blurring the news editorial and business divide.
Third, at a time when there are rightly concerns about misinformation and low-quality news sources, Bill C-18 risks increased misinformation. For example the definition of “news content” contains no standards or links to professional journalism. Instead, the definition, which I should note is different in the English and French language versions of the bill, could incorporate blog posts, opinion pieces and other content.
The government's approach to qualified Canadian journalism organizations has detailed guidance on what constitutes news to ensure that tax breaks go to high-quality, original journalism. Bill C-18 does the opposite. Moreover, the bill creates potential liability for platforms that use algorithms to demote content. To be clear, we need greater algorithmic transparency, but the provision on undue preferences may mean that platforms refrain from demoting low-quality journalism for fear of liability.
Fourth, the bill is offside several treaty and constitutional obligations. For example, clause 24, which excludes copyright limitations and exceptions from the bargaining process, may violate article 10(1) of the Berne Convention, which has a mandatory right of quotation that expressly includes newspaper articles.
Further, the bill is filled with potential CUSMA challenges. For example, clause 51 of the bill features what amounts to a must-carry obligation designed to prevent a platform from refusing to link to third party content. While self-dealing measures targeting anti-competitive conduct by the platforms are welcome—