Bill C-18 supporters have struggled to justify Bill C-18. Hugh Stephens is the latest to make a swing and a miss.
There are piles of arguments against Bill C-18. From the government picking winners and losers in the news market to how linking is legally well within the realms of fair dealing, there has long been a lopsided victory in logic with opponents of Bill C-18. Supporters of the legislation, as a result, have really struggled to even come up with a vague notion that actually defends Bill C-18. Instead, supporters often fall back on buzzwords and catchphrases such as “market imbalance” and “fair compensation” – phrases that never really meant anything and are easily debunked.
Still, that hasn’t stopped publishers from pushing this narrative. In the process, the reputation of whole publications have taken hit after hit because they have devolved into mere propaganda outlets in this debate. Any semblance of objectivity has long been taken out to the woodshed and, as a result, some of the most bizarre arguments have been given rather large megaphones.
The latest example of a supporter trying to float really bizarre arguments for the legislation is Hugh Stephens of the National Post. In an article that makes you wonder if Stephens actually read his own article, there were quite the logical leaps with buzzwords thrown in for good measure. To his credit, though, there are some logical facts that he starts off with. From his article (website appears broken, though reader mode in FireFox seems to allow the article to be readable without ads overlapping text):
Bill C-18 targets not just “snippets” — those mini-excerpts containing the gist of the story used by the platforms to entice readers — but also hyperlinks. It is a standard feature of copyright law in most countries that posting a link to content does not constitute copyright infringement. Content is not reproduced; rather readers are directed to the content by giving them the URL, usually by embedding a link to the original material. This could be seen as a positive since more traffic is directed to the original site. That is what the big internet platforms maintain they are doing when it comes to linking to news articles.
This snippet does gloss over the fact that even mentioning a news organization in any way also counts. So, if Google simply lists “National Post” on their search engine in any way (even without linking), that constitutes an action that is also captured in the bill. Otherwise, this is pretty much spot on. Linking is fair dealing and does not constitute copyright infringement. News outlets benefit from having their content linked to on these platforms. Further, many outlets actually voluntarily post links to these platforms. So far, so good. Right after, however, is where we start running into problems:
But Canada nonetheless intends to include links in the bill’s coverage because to exclude them would not target the “problem,” which is that the big platforms use links — among other devices — to aggregate material produced by others (and to profit from it). Bill C-18’s solution is to require the platforms to compensate producers of media content when they make that content available to online audiences.
Um… what? First of all, what entitles these media outlets to compensation over an act that is fair dealing? The author himself admitted that it is fair dealing. Fair dealing allows people to re-use content in a reasonable manner such as criticism, commentary, journalistic purposes, and others. It’s why when a news organization uses the logo of a company (ironically, just like what you see in the National Post), they are not automatically forced to compensate the company for the use of that logo (and, subsequently, are not committing an act of copyright infringement).
If anything, if we are to follow the same logic here, then the National Post should compensate Alphabet and Meta for the use of the companies logo’s. After all, you can very easily argue that the National Post is profiting off of content produced by Meta and Google. What’s more, Meta and Alphabet’s intellectual property is being made “available to online audiences”. Obviously, those running the National Post would (rightfully) object for the simple reason that this is not how fair dealing works. Yet, here we are with someone from the National Post making that argument for their content.
The real question at this point is, what is the difference between the National Post demanding payment for links and Meta or Google and Alphabet demanding payments for the National Post using Google’s logo?
It is well known that publishers themselves often post links to their own content on the platforms, especially Facebook, as the platform is a key tool in attracting an audience. The platforms argue that they should not be required to pay news publishers when they themselves have posted the link. The answer comes in the wording of the legislation requiring “fair compensation.” Fair compensation negotiations will take into account the benefit that news publishers gain by posting links to the platforms. That benefit will be offset against the greater benefit the platforms gain by using news content to attract viewers and advertisers. That trade-off will normally be worked out during bilateral negotiations between the publishers and the platforms, with the government stepping in only if there is a failure to reach agreement.
You really have to re-read that paragraph several times just to derive any kind of sense – and to realize just how senseless it actually is. Fair dealing allows the re-use of material under limited and reasonable circumstances. There was never any intention that, somehow, parties have to come together to negotiate compensation for what is considered fair dealing. The argument here is that the big publishers are different and play by their own set of rules. So, while the National Post might not need to pay for the “fair compensation” for the use of Google’s logo, they are different… somehow… so when Google links to them, they want “fair compensation”.
So, what part of the law delves into this sort of thing so we can find precedence in any of this? Nothing. Zilch. What licenses you do find typically revolves around access to content, not actual use. In fact, demanding license agreements for something that is covered by fair dealing pretty much defeats the whole point of fair dealing.
What’s more, if news organizations suddenly feel entitled to “fair compensation”, then it raises the question: what other sectors will demand “fair compensation” when their works fall under fair dealing? Even more, if license agreements aren’t agreed to, does this suddenly fall into the realm of copyright infringement? If so, then are we really calling for the abolishment of fair dealing?
The article goes even deeper into the realm of hilarity here:
Linking is covered (but not because of copyright) although the calculation of benefit from posting the links is subject to negotiation between the parties, adjudicated in the end, if necessary, by a three-person arbitral panel. “Fair compensation” will likely not be easy to determine, but with the spectre of arbitration in the background, the parties will undoubtedly reach agreement.
So, never mind the fact that there really is no justification for even creating these link taxes in the first place, let’s skip straight to how these magical “three-person arbitral panel” will just somehow solve everything and that money will start flowing to these publishers in no time.
By that logic, I can say that I am entitled to “fair compensation”. After all, I took my valuable time to read the article from the National Post. The National Post benefited from me reading the article as evident by all the Google Adsense ads. Therefore, I am entitled to compensation. Obviously, there is a lot of legal wrangling that has to be set out here, but let’s just let “a three-person arbitral panel” decide what “fair compensation” I am entitled to. I understand that how much money I am entitled to from the National Post as “will likely not be easy to determine”, but I am confident that “the parties will undoubtedly reach agreement”.
Does that sound stupid? It darn well should. The argument presented is just as stupid. What entitles me to money in this situation? Heck if I know. What entitles the National Post to money in their argument? Heck if I know. We then get to this:
Does this legislation constitute a slippery slope toward a so-called “links tax,” as some have claimed whereby individual users will be constrained from posting links unless they pay for access? No, that is not the case. The legislation will apply only to a “digital news intermediary” that has a “significant bargaining power imbalance between its operator and news businesses.” That definition will catch Google and Meta, although they will be exempted if they can demonstrate that they have already entered into agreements with news businesses on the basis of fair compensation, as they did in Australia.
So, here we see a clear misinterpretation of the argument here – and an even dumber counter argument. The author claims that critics are saying that the link taxes will restrict all linking unless there is payment for access. I have never heard that argument put forward by any critic (nor has the author cited anyone who did say that). The actual argument is that smaller players (such as Freezenet) will be iced out of the market because there will not be any reasonable means to form a cartel (a requirement by Bill C-18) just to make it to any bargaining table.
This system is almost designed from the ground up to benefit the biggest publishers. The biggest ones will form their cartels, pour loads of money into bargaining power, and extract the most cash. Meanwhile, the smaller players (such as small local media outlets) will be forced to scrape together what they can and likely wind up getting peanuts by comparison.
What’s more, smaller independent outlets like us will suffer from the legalized stealing of our money. Section 11 effectively compels platforms to pay for linking. Section 27 disqualifies us from receiving that compensation. Our analysis showed this assessment to be accurate. So, large publishers will live high on the hog, smaller players will get scraps, and independent outlets like us will get robbed blind in the process.
The argument that this won’t happen because the law is applied to the large platforms completely misses the point. It’s not that laws are applied to large platforms and don’t impact anyone else, it’s that laws are applied to an internet ecosystem that benefits the largest players and creates massive market imbalances that causes the smaller players to suffer.
Generally speaking, this article makes a lot of assumptions that are straight up untrue. It assumes that search engines and news outlets are in the same market. That is wrong. It assumes that fair dealing requires compensation. That is untrue. It assumes that news outlets are special in copyright law when talking about compensation. They are not. It assumes that there is a case that Google and Facebook should be sending them free money. That case was never really made. It assumes that all outlets are equal under the law. That is demonstrably false. It assumes that no platform would leave Canada. That is, at best, theoretical and, at worse, speaking far too soon.
At the end of the day, another article written by an author who thinks they have the perfect justification for Bill C-11. Another swing and a miss.
Drew Wilson on Twitter: @icecube85 and Facebook.
