Paula Simons: Will tinkering with copyright law provide a lifeline to news outlets?

Or does a newly proposed bill only continue to entrench the big players, and make them even more dependent on Big Tech?

By: Paula Simons

If you are a news lover — and if you read The Line, I have to assume you are — you know the last 15 years have been rough for Canada’s “legacy” media industry.

Just as papyrus made the clay tablet obsolete, just as Gutenberg’s printing press put monks in scriptoria out of work, the digital revolution caused a cataclysmic shift in the economic models that long made newspapers, magazines and local television and radio stations solidly profitable.

In 2006, Canada’s newspapers brought in total advertising revenues of $3.9 billion. In 2019, Canadian newspapers had ad revenues of just $1.4 billion, a loss of $2.5 billion.

In 2005, Canadian magazine advertising revenues were $665 million. In 2019? Just $116 million, a decline of 82 per cent.

Of course, people didn’t stop advertising. They just switched to cheaper, more targeted digital sites. And despite all efforts to beat them at their own came, newspapers simply couldn’t match the price or power of Facebook and Google and their brethren.

Small wonder failing news organizations look to their behemoth “Big Tech” competitors with a mixture of envy and avarice. Small wonder politicians around the world are looking for ways to force web giants to pay to keep local journalism from complete collapse.

In Canada, the latest effort comes from my Senate colleague Claude Carignan, a Conservative senator from Quebec. Bill S-225, which passed second reading in the Senate this week, would compel designated digital platforms to pay royalties to Canadian journalism organizations for the news stories they share.

Canadian news sites would be encouraged to form a copyright collective — along the lines of SOCAN or the Playwright’s Guild of Canada — to negotiate royalty payments. The bill would establish a right to claim royalties for two years after the year in which the first publication of the journalistic work occurs. The model is, generally, based on a royalty system adopted by the European Union in 2019.

At first blush, that may sound appealing. There’s no denying sites like Google News and Apple News and Facebook routinely share hundreds of Canadian news stories every day, stories written by reporters all across Canada, and for which the digital platforms pay nothing.

Google, Apple and Facebook are unfathomably profitable. Why not make them pay Canadian journalism organizations for the content they share?

In France, a group of 300 accredited French media outlets made just such a deal with Google this past January. And just last Thursday, Facebook announced that it would be paying 14 publishers, including the National Observer, the Tyee, Le Devoir, the Sprawl and the Narwhal, an undisclosed amount to link to their articles on Covid-19, climate change, and other unspecified topics.

But S-225 isn’t the right strategy.

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Canadian copyright law isn’t quite the same as the EU’s.

In Canada, journalism has long had copyright protection. A newspaper holds the copyright for 50 years after publication, not a mere two.

And soon, thanks to recent changes to Canadian copyright law, those copyright protections will endure for 70 years.

Copyright for freelance work actually endures decades after the death of the author. Would adopting a two-year window for royalties actually erode some of those rights? That’s the concern raised by some copyright experts I’ve interviewed.

If digital platforms were plagiarizing or stealing Canadian news stories, publishers could sue them. But in fact, no one is stealing stories. Media companies are giving them away, and begging the platforms to take them, via hyperlink.

That, after all, is how most digital companies now share content. Yet Bill S-225 explicitly exempts hyperlinks from its royalty regime. That’s because there’s already a significant body of Canadian case law that says that sharing a link is not a re-publication. Courts have held it’s more like a citation. And if it’s not a re-publication, it’s not an infringement of copyright.

So, S-225 would apply only in cases where digital platforms shared a substantial section of journalistic work.

What’s “substantial”? The bill doesn’t say. Canadian case law doesn’t offer a clear answer, either. Nor does the bill recognize the long-standing exception for “fair use” of copyright material. In Canada, unlike in Europe, it would be hard indeed to assert that pasting a couple of paragraphs onto a Facebook page, or posting a precis on Google, would violate copyright.

In short, the specific conditions that trigger remuneration under S-225 rarely happen. Claiming such royalties would in no way replace $2.5 billion in lost ad revenues.

Bill S-225 also struggles — as many of us do — to define journalism. It defines who is a journalist. It defines a journalism organization as one that produces journalistic works, and a journalistic work as one created by journalists.

As if such tautologies weren’t dizzying enough, the bill digs itself deeper by saying that journalism is that which “records, investigates, comments on, or explains” issues of public significance to Canadians, issues which are relevant to engaging Canadians in public debate or relate to local events. Journalism, it adds, must maintain editorial independence from those it covers. What about feature stories, entertainment gossip, sports stories, food blogs, pop culture podcasts? Are they journalism? When would they be worthy of protection under this bill? A fair question.

In France, where Google struck its landmark deal, royalty money will only go to 300 approved publishers, who are accredited as legitimate professional media organizations. That kind of model would be anathema to most Canadian journalists, who don’t think any federal legislation, nor any professional association, should be deciding who is or isn’t a legit journalist or publication.

What Google News and Apple News and Facebook share most often, of course, are the stories from the big Canadian players — the Globe and Mail, the Toronto Star, the CBC, CTV, Global. You have to look long and hard to find a story from the Saskatoon Star-Phoenix or the St. John’s Telegram. Yet it’s regional papers who’ve suffered most acutely from the collapse of their traditional geographic advertising monopolies. A copyright collective model — if it worked at all — would likely give the most help to the big companies, leaving smaller papers and online start ups like The Line with little economic relief.

At what point is it actually unfair to help big companies like Postmedia and Torstar and Bell Globe Media, while making it harder for new start ups and innovative news platforms to get a start? Is there a point at which we simply have to acknowledge that the era of the big legacy newspaper companies is over?

Goodness knows, we need Canadian journalism. We have a healthier democracy and society, when we have a shared body of facts and knowledge about what’s going on in our own communities. Yet, over the course of the last 15 years, we have laid off Canadian reporters by the thousands — and turned giant American platforms like Twitter, Facebook, Google and Apple into the curators of our news. Their algorithms decide what we see and don’t — reshaping our vision of our own country, through American eyes.

If Bill S-225 worked at all, it wouldn’t solve that problem. Indeed, it would only make Canadian journalism and Canadian readers more dependent than ever on American corporate gatekeepers.

Tinkering with copyright law, guilting web giants into bailing out the media companies they decimated when they sucked up their ad revenues, won’t bring back the glory days of the great Canadian broadsheet. It won’t repopulate newsrooms which have been denuded of staff and stripped down for parts. It can’t resuscitate a newspaper culture, nor bring back the era when everyone, absolutely everyone, read their local daily to find what was going on in their local community.

And as long as we keep pining for the past, we’re never going to find a way to deliver the news of the future.

The Honourable Paula Simons is an Independent Alberta senator, a member of the Senate Standing Committee on Transportation and Communications, and the official critic of Bill S-225. Before joining the Senate, she spent 30 years working as a radio producer, news reporter and political columnist.

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