Canadian Heritage committee  It's a question of threshold, to a certain extent. I have described the concept of making news content available as the thing that triggers whether a digital news intermediary is actually caught by the obligation to bargain. Again, that's in recognition that they play that kind of gateway function to news content.

Canadian Heritage committee  The—

Canadian Heritage committee  Thank you, MP Thomas. The way clause 6 is constructed, it talks about “a digital news intermediary if, having regard to the following factors, there is a significant bargaining power imbalance between its operator and news businesses”, and then you have the three factors that we previously discussed.

Canadian Heritage committee  Thank you, MP Housefather. My answer is the same: That the government's intention is not to impact the scope of the Copyright Act. Then yes, potentially teasing out one specific exception to copyright from an interpretation perspective may mean that Parliament has explicitly turned its mind to that question and there could then be inferences made about the other limitations or exceptions that aren't listed.

Canadian Heritage committee  Thank you for the question, MP Thomas. The concepts of “making available” or ”facilitating access to” are really intended, again, to.... The primary driver behind this bill, if we could go back to first principles, is recognizing that Canadians use these services in order to access news content.

Canadian Heritage committee  From my perspective, the act of linking is a critical one. It boils down to the facilitation of access. Again, at the crux of this bill is a recognition that the ways that a significant number of Canadians navigate to news content is via social media services or via a search service, which involves clicking on the link.

Canadian Heritage committee  The obligation, MP Thomas, is recognizing that there is value to facilitating access to that. Again, the business model of these digital news intermediaries is, for the most part, dependent on the advertising market. As we previously talked about, it's in a context where the news businesses are relying on those platforms as distribution platforms and competing against them in the very same advertising market.

Canadian Heritage committee  Thank you, Mrs. Thomas. Nothing in this bill is intended to reduce the scope of limitations or exceptions under the Copyright Act vis-à-vis the digital news intermediary or any use that you or I, as individuals, can make of copyrighted material.

Canadian Heritage committee  What the bill does do is nonetheless impose an obligation on dominant social media and other digital news intermediaries to bargain. That obligation sits alongside whatever use is permitted under the Copyright Act. The consequences of not bargaining under this bill are distinct and separate from questions of infringement of copyright.

Canadian Heritage committee  The act is in no way intended to limit the activity of individuals sharing quotations or any permitted use under the Copyright Act. Section 24, though, is explicitly designed to pre-empt an argument that just because something is permitted under the Copyright Act, it necessarily reduces the value of news content under this act.

Canadian Heritage committee  Indeed, the government had to consider the relationship between this piece of legislation and the Copyright Act. The decision was made that essentially the Copyright Act will continue to stand alongside this piece of legislation and that this piece of legislation would not, in any way, limit the scope of the rights, limitations and exceptions provided for under the Copyright Act.

Canadian Heritage committee  Thank you, MP Thomas. Recognizing that final offer arbitration is the final step in the bargaining process if parties are unable to agree informs, in part, the previous bargaining. Parties know that if they get to that final step, a final offer arbitration decision will reflect that value exchange.

Canadian Heritage committee  That is correct. The value exchange is only necessarily considered at the final offer arbitration stage. Again, the act is constructed in a way to leave as much room as possible for parties to come to voluntary commercial agreements prior to that final offer arbitration stage, where an arbitral panel is essentially making that determination for them.

Canadian Heritage committee  The intention is certainly that parties come to the table understanding that the value exchange flows both ways. It's not to preclude that, MP Thomas, but clause 19 was intentionally not limited, for example, to financial compensation. It acknowledged that it's up to the parties to determine what that appropriate agreement could look like, and that could include a number of things, including financial compensation, but also non-monetary elements of the agreement as well.

Canadian Heritage committee  Thank you, MP Thomas. Through the chair, the relevant provision on the value exchange is at clause 38. Clause 38 acknowledges that the value exchange goes both ways. It says: the value added, monetary and otherwise, to the news content in question by each party, as assessed in terms of their investments, expenditures and other actions in relation to that content; and then paragraph( b) of clause 38 talks about the benefits, monetary and otherwise, that each party receives from the content being made available....