Michael Geist continues looking at the differences between what the Canadian government says they’re trying to do with their Online News Act (Bill C-18) and how the actual wording of the bill will operate:
Parliament Hill in Ottawa.
Photo by S Nameirakpam via Wikimedia Commons.
But is it reasonable to legislate that posting a news headline constitutes making that news content available? Can Canada even do that and still remain compliant with international copyright laws under the Berne Convention which require countries to feature an exception for quotation? Indeed, international copyright law recognizes the critical importance of enabling quotation free from limitations as an essential element of expression, yet Bill C-18 adopts an approach that may violate that principle by requiring compensation for quotation.
Sub-section (b) moves far beyond reproduction into a realm that bears little resemblance to use or a reasonable definition of “making available”. It covers facilitating access to news by any means. In what way is facilitating access to news the same as making it available (much less using it)? A facilitating access to news standard is virtually limitless: newsstands, news screens in elevators or taxis, television manufacturers, or newspaper box makers can all be said to be facilitating access to news. The bill limits its scope to DNIs, but the policy principle that this bill is simply compensating for the use of content is twisted beyond all recognition.
In fact, it is clear that this extreme approach is precisely what the government intends. By citing examples such an indexing, aggregation or ranking of news content it is saying that virtually anything that a platform does – linking to news articles or merely to news organizations, indexing content at the request of the news organization (even if the actual content is not openly available as is the case with paywalled sites), or creating a list of news articles on a given topic are all “facilitating access to news content” which requires compensation.
Would Canadians agree that this link to the front page of the Globe and Mail is making the Globe‘s available? If this link appears on Google or Facebook, the government says that it is. If someone searches for newspapers in Montreal to learn more about developments in the city, is the list of newspapers in that city making the content available? Once again, the government says that it is.
The initial debate on Bill C-18 featured several interventions about the problems of misinformation. In light of the actual provisions in the bill, claims that it simply requires compensation for use might ironically be fairly characterized as misinformation. Unfortunately, the problematic claims associated with the bill don’t stop there as tomorrow’s post on market intervention will illustrate.
