Thank you, Madam Chair.
I would firstly like to thank the committee for inviting me to express my point of view on this important topic.
Good morning.
I'm speaking in an individual capacity. In my comments I will be speaking in support of this bill.
In doing so I would like to address three criticisms that have been brought against it.
The first is that the measures proposed by Bill C-18 to stem the decline in journalism are taking aim at the wrong target, the large digital intermediaries, on the grounds that they do not benefit financially from including news content on their platforms and even if they do, they are already providing some financial support to some media.
The second is that the ambit of the bill is too broad because its definition of “making available” includes some content that would normally be considered fair dealing under the Copyright Act such as links, headlines and snippets.
The third is that if implemented in its current form Bill C-18 would violate Canada's international trade obligations under the Berne Convention and/or the Canada-U.S.-Mexico Agreement, CUSMA.
I believe all of these criticisms are inaccurate.
I write a weekly blog on international copyright issues and have noted that a number of governments, in the face of fierce opposition from the platforms, had to resort to legislation in order to level the playing field between news media publishers and the larger intermediaries.
In 2014 both Germany and Spain passed laws requiring Google to pay news producers for use of their content. Google's response in Spain was simply to close down Google News, its news aggregation platform, and in Germany to delist any publisher who refused to give Google access to its content without payment. The EU tackled this issue through the creation of a limited two-year press publishers' right. Google and Facebook have since come to the table and struck deals with publishers for access to news. France has been particularly successful in this regard.
We know that when Australia decided to bell this cat, Google and Facebook mounted a vigorous lobbying campaign and threatened to pull out of Australia. Google also tried, unsuccessfully, to get the U.S. government to intervene. In the face of the legislation, however, the platforms backed down and managed to conclude revenue-sharing agreements with most Australian media outlets.
In the United States, Congress is currently debating the bipartisan journalism competition and preservation act, which seeks to do much of what Bill C-18 is aiming to accomplish. I mention these examples to underline that Bill C-18's objective of helping to preserve a viable professional journalism sector by requiring negotiations for compensation for use of news content by the large digital intermediaries is not unique. In fact, it's very much in the mainstream of what's taking place in a number of western democracies.
Another criticism is that Bill C-18's definition of “making available” is too broad because it includes some actions such as linking to content or featuring headlines or snippets that are normally considered fair dealing under the Copyright Act. It's also been argued that posting hyperlinks provides a benefit to news outlets so why should platforms pay? Indeed, news outlets do derive some benefit from the referral just as the platforms derive benefit from using news content to attract more users and thus sell more ads.
Under Bill C-18 the balance of respective benefits will be worked out in negotiations between the parties. But Bill C-18 does not deny digital platforms their fair dealing rights. Putting it another way, their rights under the Copyright Act are not diminished or changed by Bill C-18. However, it will be a violation of the new act if they do not bargain in good faith with respect to making content available. Use of fair dealing exceptions is not a licence to ignore other laws, whether it be the online news act, defamation laws or any other legislation.
Finally, the criticisms that Bill C-18 will violate Canada's international trade obligations, including the Berne copyright convention and CUSMA, leading to potential trade retaliation from the United States, do not stand up to scrutiny. The legislation is drafted in such a way that it does not target U.S. companies but, rather, companies with certain market characteristics of size and dominance. Likewise, it does not seek to protect Canadian digital intermediaries that compete directly with Google or Facebook. In addition, the section on non-discrimination does not impose any must-carry requirements that could violate CUSMA. In the case of Berne, which contains a right to quotation, nothing in Bill C-18 derogates from the quotation right although, of course, use of quotations from news content providers could be a factor in the bargaining process.
Quite apart from not having a strong legal argument to challenge the bill under either CUSMA or Berne, it is highly unlikely that any government, including the U.S. government, would take up a trade challenge under either CUSMA or the WTO. I would be happy to elaborate on why that is the case, if people are interested.
Let me end my comments there, Madam Chair. I look forward to questions.
Thank you.