Last week, I appeared before the Standing Committee on Canadian Heritage as part of its study on the future of media. The committee has heard from dozens of witnesses and one of the surprising themes has been the emphasis on copyright reform as a potential solution to the newspaper industry’s woes. My opening remarks, which are posted below, warn against the reforms, including the prospect of new taxes on Internet services or linking as a source of revenue for the industry. Instead, I point to several potential policies including an ad-free online CBC, sales taxes for digital services, and non-profit funding models for investigative journalism.

The Q & A that followed with me focused primarily on copyright law. The copyright discussion stems from the fact that several earlier witnesses implausibly claimed that it would help solve the problems facing news organizations. For example, Bob Cox of the Canadian Newspaper Association told the committee:

we need updated copyright laws to protect original work. Papers invest heavily in original journalism, which is then shared, reused, and rewritten by others, often for commercial gain, because the two-decades-old fair dealing law does not take into account the ease of digital reproduction. If newspapers were compensated for their original content and the investment was protected for longer, it would be a significant boost to our revenues.

Duff Jamison of the Alberta Weekly Newspaper Association said:

I do think that copyright laws were designed before we had this mass digital distribution of content. They probably need to be reviewed and brought up to date, so that there is a means…. We put in a possible suggestion. If you click through to a journalist’s story, then at that point perhaps that journalist and the newspaper that employs him should receive a payment. There are ways to get at this.

Meanwhile, Peter Kvarnstrom of the Glacier Media Group called for fair dealing reform:

Fair dealing within our Copyright Act is a significant detriment to journalism in Canada. Our creators and publishers pay to create content that many news aggregators, including the CBC, republish, copy, broadcast, and sell advertising without compensating the creator or the copyright holder. This must be addressed.

These comments raise at least four possible copyright reforms: scope of protection, term, link tax, and fair dealing. As I told the committee, none will address the underlying challenges faced by the newspaper industry.

The prospect of changing the scope of copyright protection to cover ideas as well as expression would be incredibly harmful to a free press. The law is designed to protect expression, but rightly recognizes that ideas and facts should not be controlled by a single entity. To change the law would grant a single rights holder exclusivity over reporting, effectively limiting the ability of the press to do its job.

Extending the term of copyright seems like an absurd mechanism to address the problems news organizations face today.  Copyright protection for authors already stands at life of the author plus an additional 50 years. Suggestions that newspapers would be assisted by extending the term of protection would do nothing to address revenue shortfalls today, given that works are fully protected right now and will continue to benefit from protection for many more decades.

The link tax proposal, which has gained traction in Europe, speaks to the possibility of requiring compensation for merely linking to an article. Yet as the Supreme Court of Canada noted in the Crookes case involving links:

The Internet’s capacity to disseminate information has been described by this Court as “one of the great innovations of the information age” whose “use should be facilitated rather than discouraged”.  Hyperlinks, in particular, are an indispensable part of its operation.…

The Internet cannot, in short, provide access to information without hyperlinks.  Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.  The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control.  Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning.

While the Crookes case involved defamation, the Court clearly understood the importance of linking to freedom of expression. Attempts to limit linking – whether by regulation or the imposition of fees – would undermine critical freedoms. Moreover, creating a link tax would likely mean that sites and search engines stop linking to news content. Such an approach would hurt smaller news organizations, independent bloggers, and others who are dependent on links to find their audiences.

Finally, fair dealing is also an odd issue to raise. For journalists, fair dealing is exceptionally important as one of the purposes – news reporting – is specifically included to ensure that copyright is not used to stop important journalism. Claims that fair dealing is a detriment to journalism fails to understand that newspapers are themselves active users of fair dealing. Concerns regarding fair dealing being used by competitors to copy articles are unfounded, since commercial republication of articles is unlikely to qualify as fair dealing. The courts have rightly permitted copying and posting portions of articles for criticism or review purposes as well as indexing (but not posting) full text of articles, but competitors cannot regularly rely on fair dealing to copy and post full articles.

My full opening remarks follow:

Appearance before the House of Commons Standing Committee on Canadian Heritage, October 6, 2016

Good morning. My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. My areas of specialty is digital policy, including e-commerce, privacy, and intellectual property.

I appear today in a personal capacity representing only my own views.

I am particularly pleased to have the opportunity to speak before this committee on this study. My interest in this issue extends beyond my academic research into new digital business models and the laws and policies that often follow. For more than 15 years, I have written regularly for a wide range of Canadian media. This includes large news organizations such as the Toronto Star and Globe and Mail, speciality and local publications such as the Hill Times and Vue Weekly, and newer online publications such as the Tyee, Huffington Post, and iPolitics. In that capacity, I have witnessed first hand the different readers, different business models and different approaches to content. I have also been on the receiving end of cuts due to shrinking budgets as well as the conflicts that sometimes arise between editorial and business departments.

My remarks are divided into two sections: my take on the current landscape and a discussion of potential policy reforms.

The Current Landscape

I have been following this study closely and note that you have heard from a wide range of witnesses who have offered up a dizzying array of suggestions and recommended reforms.

Much of the commentary emphasizes the critical link between a strong, independent media on the one hand and citizen participation and holding governments at all levels to account for their actions on the other. While there is little debate over the essential role of journalism, the tougher questions are whether policies are needed to save or assist existing news organizations and whether emerging digital alternatives can provide an effective substitute.

I am reminded that people like Clay Shirky, a well-known media professor in the United States, predicted the current struggles many years ago.  Indeed, in a widely read piece in 2009, Shirky wrote about the media concern with the digital world:

“Round and round this goes, with the people committed to saving newspapers demanding to know “If the old model is broken, what will work in its place?” To which the answer is: Nothing. Nothing will work. There is no general model for newspapers to replace the one the internet just broke.”

While there are some policies that merit consideration, Shirky’s point is that the general newspaper as we have known it can’t compete with the Internet. It is not solely a function of lost revenues such as classifieds or declining readership. Rather, the newspaper’s role in aggregating diverse content is less relevant today and that package has far less value than it once did.

Moreover, the newspaper faces far more competition than ever before. In my view, newspapers are disappearing not because there are too few voices, but because – at least under their economic model – there are too many. With few exceptions, the content they produce has substitutes from cheaper online organizations, NGO’s, bloggers, and the myriad of other sources. We can debate quality and editorial product, but there are alternatives for virtually all forms of information traditionally published – sometimes on an exclusive basis – by newspapers.

Where there is no substitute or a premium placed on the content, experience shows the market will pay.  Hence the success of financial and sports information as well as some speciality paywalled publication. For general interest publications, the question is whether digital news organizations, who enjoy low entry barriers, the reach into new audiences, and innovative business models, can replace the traditional news organizations.

There is some evidence to suggest that it can, at least in some areas. For example, political news coverage is often viewed as the most critical in holding governments to account. Some have pointed to the regional decline of membership in the Parliamentary Press Gallery as evidence of the crisis, but it is more instructive to see how many new, digital-only organizations are investing in original political reportage.

The current gallery membership list includes newcomers such as the Huffington Post, the Tyee, Rabble, National Observer, and VICE. Moreover, there are a host of experienced freelance journalists whose work appears in many venues alongside specialty digital publications such as iPolitics, Blacklock’s Reporter, and the Wire Report.

The work of journalists at these publications – along with niche print sources and experts who blog or write independently – offers the chance to reach different audiences and to cover specialized issues in greater depth than is often found in larger newspapers that emphasize big picture concerns.

Policy Suggestions

In the face of the obvious decline of some well-known news organizations, the temptation to “do something” is unsurprising.  And there are steps that can be taken that can assist in the digital transition. But we should be very wary of reforms that simply prolong the life of now-unsuccessful entrenched entities or that have serious unintended consequences.  These include:

–    proposals for ISP taxes as a new source of revenue. This would be the equivalent of a digital tax on everything, making it costlier for Canadians to access the Internet and exacerbating the digital divide
–    proposals for “link taxes” on digital aggregators, who drive traffic to the originating sites and only aggregate content that is made available by the original source. These proposals have serious free speech implications and run the risk of reducing diversity of voices
–    proposals to reform copyright fair dealing, by dispensing with the longstanding rule that copyright protects expression not ideas. This runs the danger of protecting facts, which would undermine reporting and add costs to many other groups.

These changes could have a serious, detrimental effect on the Canadian digital landscape and ultimately harm the new entrants that offer hope for more media choice.

What can be done?  I believe the policy goal should be premised on leveling the playing field with the priority being good journalism regardless of the source.  Five possible steps:

1.    The foundation for a robust digital media world is access for all – as participants and readers. This means addressing the digital divide with world class broadband accessible and affordable to all Canadians.  We still aren’t there and experience indicates that the market alone will not solve the issue. The emphasis should be on affordable equipment and Internet access along with digital skills development.

2.    As for Canada’s public broadcaster, the CBC’s emphasis on digital delivery of news content has created frustration with many established news organizations. Reconciling the need for the CBC to remain relevant by embracing digital delivery with the financial impact on private sector news services could be addressed by requiring the public broadcaster to adopt an ad-free approach to its online news presence. That would ensure that it reaches digital audiences but does not directly compete with the private sector for advertising dollars.

3.    There have been some harmful tax policy suggestions but there are some useful possibilities as well. The private news services could benefit from a change to allow tax deductions for advertising on Canadian websites. Online services should remain unregulated and free from mandatory contributions, but should be subject to general sales taxes. Levying GST or HST on Canadian services such as CraveTV while leaving foreign services such as Netflix tax-free creates a tax revenue shortfall and places domestic services at a disadvantage compared to their foreign counterparts.

4.    Remove access barriers for journalism. This includes access to information rules at all levels of government and better recognition of journalists from all organizations in press conferences and availability.

5.    Focus on journalism, not organizations.  Recommendations from the Canadian Association of Journalists on the need to embrace non-profit journalism is an excellent idea that is proven elsewhere. While state subsidies for newspapers should be rejected, funding models for journalism projects as a media equivalent to the Court Challenges Program would be helpful.

The uncertainty associated with digital models, the loss of jobs, and the future of some of Canada’s best-known media organizations unsurprisingly elicits sadness, apprehension, and concern. However, the emergence of new voices and the innovative approaches at older ones point to the likelihood that journalism is neither dead nor dying.  The trick is avoid policy reforms that may do harm than good and trust in a transformation that has more access and more voices as its foundation.

I look forward to your questions.