Across the world, as digital companies’ advertising revenues climb, traditional news organizations’ revenues fall. As a result, many traditional news organizations, like broadcasters and newspapers, are going out of business. The public’s appetite for journalism, however, has not waned. If anything, the public needs reliable news sources more than ever in this era of “fake news” and internet-borne misinformation. Often it is the very digital platforms that share news organizations’ content that are perceived as putting news organizations out of business.
Governments around the world are contemplating various policies and legislation to save struggling traditional news organizations. Many of these solutions contemplate tying the fortunes of ailing news organizations to those of thriving digital platforms like social media companies. For example, Australia has been in long-standing disputes with large tech companies about its proposed law that would require big tech companies to pay news organizations for use of their content.
Recently, the first proposed legislation to tackle this problem in Canada was tabled in the Senate in the form of a private members bill, Bill S-225.Bill S-225
Bill S-225 was introduced as a “private members bill” in the Senate on February 17, 2021. Private members bills are proposed legislation created by members of Parliament and Senators who are not part of the ruling party’s cabinet. Private members bills rarely become law, particularly when they originate in the Senate (Canadian Parliament is a bicameral legislature consisting of two separate branches: the House and the Senate). That said, private members bills are more likely to become law when there is a minority government in power, which is the case at the moment.
The proposed legislation aims to require digital platforms to compensate Canadian news organizations for the use of their journalistic works, either in their entirety or for a substantial part thereof. It plans to do this by using Canada’s Copyright Board to set tariffs that lay out royalty rates which digital platforms will have to pay news organizations in exchange for the use of journalistic works. The Bill defines a “Canadian journalism organization” as a corporation, partnership, or trust (with Canadian ownership requirements) engaged in the production of journalistic works. A “digital platform” is a publically accessible service on the internet that has works reproduced or published on it by the platform’s owners or by its users. Bill S-225 would give the government the power to designate specific entities as “digital platforms” for the purposes of remuneration.
On its face, Bill S-225 raises several potential issues: (i) How will the power to designate “digital platforms” be used?; (ii) Will this legislation cover digital platforms’ most common uses of journalistic works?; (iii) How will this legislation handle situations where journalistic organizations reproduce their own works on digital platforms in order to be remunerated?; and (iv) Will this legislation lead to social media sites and / or search engines feeling like they are being unfairly targeted, if–for example–they are designated as “digital platforms” while their competitors are not?. In addition, Bill S-225 would explicitly exclude hyperlinking to journalistic works from its remuneration scheme, raising the issue of whether common forms of reproduction on digital platforms would be covered. It is often journalistic organizations themselves who reproduce their works on digital platforms.
In summary, Bill S-225 represents the first proposed Canadian legislation that attempts to strike a balance between traditional news media and social media. As a private members bill tabled in the Senate, it is unlikely that it will become law. Nevertheless, Bill S-255 may be indicative of what is to come since the Canadian government is set to unveil its plan for the relationship between news media and social media later this year.