My testimony before a Senate committee on copyright

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I testified — virtually — before a sub-committee of the Senate yesterday (the Canadian one) about Bill S-225, which wants to create a new copyright scheme to help ailing newspapers get money from Facebook and Google. Here’s what I told them (if you want to watch a livestream of testimony from myself and others, including Jason Kee from Google, followed by questions from the senators, you can see that here)

Good evening, honourable members of the committee. I’d like to thank you all for having me here to talk about Bill S-225. I don’t want to take up too much of your time before answering your questions, but I want to give you a brief overview of why I think that this Bill, although directed at a very real and pressing problem, is fundamentally misguided in the way that it proposes to solve that problem.

The preamble to this Bill states several things that are true. Journalism is important in a free and democratic society, there are a number of excellent Canadian journalism organizations, and digital platforms have disrupted the advertising industry. But the preamble also says something that is not quite true, which is that these platforms “supply their sites with the journalistic work generated by traditional media.”

It would be more accurate to say that media outlets themselves supply their readers — and potential readers — with their journalistic work. They post their content on these platforms willingly, and even enthusiastically. Facebook and Twitter and other social networks don’t take content from journalistic organizations, they accept it when it is freely given. In return for this content, these platforms send readers to those journalistic entities, and help them reach new ones — a service which arguably has significant value.

I think it’s also worth noting, as has been mentioned by others today, that journalistic works rarely appear on any of these social networks in their entirety — instead, they appear as clickable links, with a small excerpt of the story or article underneath them. I’m not a media lawyer, but that kind of usage seems to be exactly what the concept of “fair use” or “fair dealing” was designed to cover.

Another aspect of this Bill that I think is problematic is that it would require the government — or its agents — to pick and choose which journalistic organizations qualify for this kind of remuneration. This kind of effort also typically favours existing journalistic entities, at least some of which have caused harm to their own businesses in ways that have very little to do with Google or Facebook.

I’d also like to point out that even if this bill were to be passed in its current form, it would not come close to helping stem the flow of red ink and audiences at most of the journalistic entities in Canada. I think it’s safe to say that even if the law were spectacularly successful in producing remuneration for journalist works, it would be a very small drop in a large ocean.

To sum up my thoughts, I don’t think this legislation will do much, if anything, to solve the problem it proposes to solve, and along the way it could cause a significant number of negative spinoff effects that might make things worse for the industry rather than better. If the Senate wants to help media companies financially, then the proper avenue for doing so is probably taxation of digital advertising revenue, not a reinterpretation of copyright.

Thank you for your time. I would be happy to take any questions you might have.

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