TRCM Study of Bill C-18 Jeremy Johnson (AKA Drew Wilson, Founder of Freezenet.ca) About Myself and My Relationship With Bill C-18 I have been an independent news reporter since 2005. I began my online career on Slyck, moved to ZeroPaid in 2007, then created Freezenet in 2013 where I continue to publish news to this very day. Consistently, throughout this whole time, I have covered digital issues such as the evolving technological world, digital rights, copyright, privacy, international issues, and a considerable number of related topics.

Bill C-18 seeks to change the relationship with how news is shared on numerous platforms such as Facebook and Google. As such, this topic not only goes straight to my area of news coverage, but also is a core element in the business model of any news site such as my own. Origins and Motivation for Bill C-18 There are a number of ways to describe how Bill C-18 came to be and the driving forces behind it. After observing this debate for multiple years, the core motivating factor for how Bill C-18 came to be appears to be money.

Indeed, with the constantly evolving technological environment, more and more potential consumers of the media have increasingly relied on the Internet for news and information on what is happening in the world today. Such a demographic shift was entirely predictable as a similar shift occurred with music.

Though the debate of the sharing of unauthorized copies of music had been occurring for longer, the launch of Napster on June 1, 1999 would popularize the idea among younger populations that music can be listened to online.1 Though the sharing and listening to music published by major records was largely unauthorized, no amount of changing the law, lawsuits, or inserting of provisions in international trade agreements were ever going to put the genie back in the bottle. The world has changed.

Despite many calls for the major record labels to change their business models, to adapt to a modern age, those record labels resisted those calls for years. It wasn’t until the launch of numerous online services such as Apple Music, Spotify, Netflix, and Hulu by third parties did the acceptance, to some degree, come that the world has changed and that a new business model was, indeed, needed to adapt to a major technological and cultural shift.

Though the lessons were hard learned for the music industry – at least for the major record labels – it appears that some in the news business have not necessarily paid attention to this particular history given what some have sought for in this legislation. It is, indeed, true, that traditional newspapers have experienced major challenges as they grapple with the internet age. Some have adapted while others have chosen to simply continue with business as usual with the hopes that the internet won’t impact their business.

News rooms who have resisted such 1 Napster turns 20: How it changed the music industry (BBC) https://www.bbc.com/culture/article/20190531-napster- turns-20-how-it-changed-the-music-industry

changes have seen numerous closures. The problem of newspaper closures has been so severe, that a website was created, called Newspaper Death Watch, to document such closures.2 In many communities, a website like that isn’t needed to see problems within the industry. Many have seen several newspaper closures. In a number of communities, the community’s only newspaper has either seen a reduction in circulation, or have closed entirely. For some observers supporting Bill C-18, money is a key concern in keeping such news operations afloat.

So, it stood to reason that additional financial assistance of some kind was in order. It is worth pointing out that subsidies for journalism operations have been going on for years. For example, the Canadian government has already handed out hundreds of millions of dollars to media outlets through funds such as the Canadian journalism labour tax credit ($360 million) and the digital news subscription tax credit ($138 million)3.

When the pandemic hit, advertising dollars were particularly hard hit, so additional funds were handed out to the tune of $30 million among other COVID-19 relief programs.4 As a result, it isn’t as though the media in general hasn’t received considerable funding from the government. In fact, they have. However, the arguments are that media outlets need additional funding to stay afloat.

This raises the question of just how much additional money these media outlets need to stay afloat as well as the question as to whether it is worth this much money to keep an industry afloat that is seemingly incapable of continuing to operate as a private for-profit business. Yes, it is very easy to support the idea that news is important and valuable in a democracy, but where the question becomes blurry is where the line is on just how much the media is subsidized. Bill C-18, as supporters are quick to point out, simply changes the source of the revenue from the public purse to the private sector.

Making Google and Facebook Pay for News The simple logic for those supporting Bill C-18 appears to be that if an industry is seeking additional streams of revenue, look to an industry that is, in fact, very profitable. Indeed, companies like Facebook (Meta) and Google (Alphabet) are the easy targets in this given that they are easily the biggest players in the online space. It is not controversial to say that generating revenue from a successful business model should be seen as a positive thing. There is nothing wrong with that.

Where some Bill C-18 supporters get the wrong impression, however, is that Facebook and Google generating revenue means that such a revenue source has to have been obtained through ill-gotten gains. A number have taken the extreme perspective that their alleged ill-gotten gains were taken from the media specifically. Such accusations, however, have never been substantiated.

The closest evidence that I could determine is the allegations by various prosecutors in the United States that say that Google, through their Adsense and related programs, suppressed publisher revenue by as much as 40% through a program called “Project Bernanke”.5 While the accusations are, indeed, worrying for both advertisers and those who place advertising on their sites for Google, such 2 Newspaper Death Watch https://newspaperdeathwatch.com/ 3 “Explainer: Canada’s News Bailout, and what Facebook and Google have to do with it” (Canadaland) https://www.canadaland.com/qcjo-news-media-bailout-explainer/ 4 “Which Media Benefitted From The Trudeau Government’s Covid-19 Funds?” (Canadaland) https://www.canadaland.com/canadian-media-liberals-trudeau-government-funding-covid-cbc-erin-otoole/ 5 “Court Documents Accuse Google of Suppressing Publisher Ad Revenue by Up to 40%” (Freeznet) https://www.freezenet.ca/court-documents-accuse-google-of-suppressing-publisher-ad-revenue-by-up-to-40/

allegations transcend every website project that has taken out advertising from Google, not just the media publishers themselves. Bill C-18 doesn’t even begin to address such an issue. Nevertheless, supporters of Bill C-18 insist that platforms have wronged media outlets in particular despite the lack of evidence supporting these allegations. One major argument that has been a theme is that Google and Facebook are overwhelmingly dominant in their advertising positions and putting pressure on news organizations ad revenue.

This argument is fundamentally flawed because Google is a search engine and Facebook is a social media platform. These are services that media outlets generally do not provide. The drop in ad revenue has been more correlated with the affects of COVID- 19 lockdowns which is an observation I have seen throughout the pandemic both on my website as well as the anecdotal evidence of others.6 The logic is very easy to follow: why advertise for a place of business that is forced to close down due to COVID-19 pandemic restrictions? At least in the online world, this is a problem that many faced.

When this argument fell flat, Bill C-18 supporters doubled down on these allegations and go so far as to accuse platforms of “stealing” news from news outlets. This sentiment was echoed by Liberal MP, Lisa Hepfner on Twitter.7 The Link Tax Concept Is Born Rather than take a more palatable approach of asking platforms to help support journalism efforts, Bill C-18 seeks to establish a link tax.

Armed with the false concept that platforms are somehow “stealing” news articles from journalism outlets, Bill C-18 aims to create a new compensatory requirement that linking or otherwise referencing a news story is a form of republication that requires a license fee.

While Hepfner took a direct approach in saying that platforms are somehow “stealing” news articles, numerous outlets have taken a more soft approach by saying that “Bill C-18 is designed to require web giants to compensate journalism publications for reposting their content.”8 In all of my years of experience in journalism, I have attributed ignorance of a technological issue to journalists not having an understanding on par with someone such as myself who specializes in such issues. However, in this instance, media outlets, generally speaking, know better about how their business works.

In 2021, media outlets went to the extreme of executing a campaign called the “disappearing headline” which was an absolutely shocking development where outlets cast aside their credibility in favour of what they see as their own business interests in such a blatant and obvious manner.9 Of course, the media’s campaign wasn’t strictly public facing.

Prior to Bill C-18 being tabled, media outlets, while ironically crying poverty, lobbied government MPs once every four days.10 Suffice to say, with Bill C-18 before the Canadian Senate, the media got exactly what they wanted. 6 “Drew Curtis: Fark.com Facing “Existential Threat” With Plummeting Ad Revenue” (Freezenet) https://www.freezenet.ca/drew-curtis-fark-com-facing-existential-threat-with-plummeting-ad-revenue/ 7 “MP Lisa Hepfner Faces Backlash from Journalists After Saying Platforms “Steal” News Articles” (Freezenet) https://www.freezenet.ca/mp-lisa-hepfner-faces-backlash-from-journalists-after-saying-platforms-steal-news-articles/ 8 “Dismantling the Big Lie Canadian Media Outlets Use to Sell Bill C-18” (Freezenet) https://www.freezenet.ca/dismantling-the-big-lie-canadian-media-outlets-use-to-sell-bill-c-18/ 9 “Canadian Newspapers Launch Coordinated Anti-Tech Propaganda Campaign” (Freezenet) https://www.freezenet.ca/canadian-newspapers-launch-coordinated-anti-tech-propaganda-campaign/ 10 “MPs Were Lobbied on Average Once Every Four Days Prior to Bill C-18 Being Tabled” (Freezenet) https://www.freezenet.ca/mps-were-lobbied-on-average-once-every-four-days-prior-to-bill-c-18-being-tabled/

Bill C-18 is About Much More Than Simple ‘Reuse’ of Content Much of the premise supporting Bill C-18 is fundamentally flawed. So, it is likely not a surprise that the bill itself is also fatally flawed on execution as well. While some have argued that this is about re- use of content, the text of the bill is very clear.

Under “Making available of news content”, the legislation is clear that this is about republishing or any portion of it or “access to the news content, or any portion of it, is facilitated by any means, including an index, aggregation or ranking of news content.”11 This is extremely broad as it covers not only portions of the text, but merely linking to or even simply mentioning a source by name. Any suggestion that this legislation is strictly about the republication of whole articles is purely fabricated.

The Sharing of News Articles is Voluntarily Being Made by the Media Outlets Themselves This leads to the next fundamental flaw used to bolster this legislation. As highlighted above with the media assertion that platforms are republishing media outlets content, the notion that the platforms themselves are actively copying and pasting content without permission has never been substantiated and, as such, I can conclude that this notion is false.

For instance, though news articles do appear automatically in the Google News service, such an appearance requires not only the permission from the publishers themselves, but requires the publisher to actively submit their news feed for approval to appear in the Google News index.12 Simply put, if a publisher does not wish to appear in Google News, they can simply choose not to submit their website to that particular service. Also worth pointing out is the fact that advertising does not appear in the Google News service. As such, Google doesn’t actually generate revenue for offering such a service.

Likewise, Facebook is no different in that publishers are actively sharing their own articles on such platforms. This is evidenced with the following sample of screenshots on Facebook: 11 Bill C-18 https://www.parl.ca/DocumentViewer/en/44-1/bill/C-18/third-reading 12 “Show up in Google News” (Google) https://support.google.com/news/publisher-center/answer/9607025?hl=en

If it is well and truly is a concern that news articles are, indeed, appearing on Facebook, publishers can either very easily remove their own posts sharing those articles or simply stop sharing their articles on Facebook altogether. Not only does the media actively share their own stories on such platforms willingly, but they actively encourage their readers, on their own websites to share their articles on these platforms as well.

This also evidenced by the following screenshots: Thanks to the Facebook transparency report feature, it is also possible to see that some media outlets have even gone to the extreme to paying Facebook money to “boost” their news articles to encourage such active sharing of news articles.13 14 15 While some will no doubt continue to argue that platforms are actively taking news articles and republishing those articles without permission, this flies completely in the face of both reality and basic standard practices of online news activities. What is on display here is standard practice.

The Damaging Consequences of Bill C-18 The problems of Bill C-18 stretch far beyond simple misunderstandings (or misleading statements) of how news is actually shared on the internet. It puts at risk the future innovation of Canadian start ups, risks billions in international trade tariffs, and even goes so far as to put in jeopardy journalistic independence and the longevity of journalism in Canada. The Threat to Freezenet and Other Small Operations Contrary to what Hepfner asserted, small operations such as Freezenet do provide valuable contributions to journalism in Canada.

The assertion that online news outlets are little more than “opinion only” is completely offensive and wrong.16 Throughout my career, both on my own website and working for others, I have been playing my

part in holding politicians to account.

This career 13 The Toronto Star (Facebook Transparency Report) https://www.facebook.com/ads/library/? active_status=all&ad_type=all&country=ALL&view_all_page_id=184906186150&search_type=page&media_type=all 14 The Globe and Mail (Facebook Transparency Report) https://www.facebook.com/ads/library/? active_status=all&ad_type=all&country=ALL&view_all_page_id=140961138903&search_type=page&media_type=all 15 Global News (Facebook Transparency Report) https://www.facebook.com/ads/library/? active_status=all&ad_type=all&country=ALL&view_all_page_id=114019975312443&search_type=page&media_type =all 16 “Liberal MP, Lisa Hepfner Launches Smear Campaign, Says Online Outlets are “Not News”” (Freezenet) https://www.freezenet.ca/liberal-mp-lisa-hepfner-launches-smear-campaign-say-online-outlets-are-not-news/

stretched from the Paul Martin Liberal government to the Stephen Harper Conservative government and continues to this day with the Justin Trudeau Liberal government. What’s more, throughout my career, I have been able to provide valuable fact checking and journalistic coverage that provides necessary context to stories – even to the point of fact checking anything between online rumours to media reports whenever there is a misrepresentation of the facts. Additionally, I am far from alone in providing such a service.

Though there are online services that do provide sub-par coverage of events, to paint everyone with the same brush is an affront to everything online news outlets have worked hard to achieve every day. Such assertions, sadly, are nothing new. Throughout the Bill C-11 debate, digital creators have been attacked as being not credible or not contributors to culture.

This has led to activities ranging from social media attacks of creators17, experts18, and even politically motivated “investigations” into any individual or organization daring to question Bill C-11.19 After witnessing such attacks, I have legitimate reason to worry that even speaking out against Bill C-18 could open me up to personal attacks and other forms of political retaliation. However, I am compelled to speak as the future of Freezenet is threatened. On Freezenet, I have conducted my own independent analysis of Bill C-18.20

Section 11 of the bill says that all links to news sources require compensation to be sent by the platform. The only exception is if the platform in question has already worked out a deal with the publisher in question. In that case, the Commission (CRTC) can waive such a requirement.21 This

section is problematic because there is no mechanism for a small independent journalism outlet such as my own to request that all fees be waived and that links can continue to be posted as before this legislation would become law. This removes my choice as an independent news organization as to whether or not I should be charging for the linking to my own news articles. At the same time,

Section 27 provides eligibility requirements that operations like Freeznet would never be able to qualify for. As such, there is no way for Freezenet to receive compensation. Freezenet only has me as someone operating the site itself. While I hope someday to have a full staff of news writers, this is not something I have been able to achieve as of yet.

Section 27 (1) (b) (

i) would disqualify Freezenet from receiving compensation for the news links that platforms are forced to be charged. Even if Freezenet were to take out loans and hire sufficient staff,

Section 27 (1) (b) (iii) would disqualify Freezenet anyway as the site has a focus on technology and, as such, would theoretically trigger the language of covering “a particular topic”.22 The net effect of both sections would mean that funds would be extracted on my behalf without any chance to waive such fees and those funds would be redirected to other news organizations that theoretically would be competing against Freezenet.

This is a permanent government mandated advantage other players have over Freezenet and, as such, could very easily be seen as other media outlets stealing revenue from Freezenet for their own financial gain. This is unfair and wrong. 17 “Liberals Now Openly Attacking Creators for Daring to Question Bill C-11” (Freezenet) https://www.freezenet.ca/liberals-now-openly-attacking-creators-for-daring-to-question-bill-c-11/ 18 “Liberals in Full Meltdown.

Now Picking Fights With Michael Geist Over Bill C-11” (Freezenet) https://www.freezenet.ca/liberals-in-full-meltdown-now-picking-fights-with-michael-geist-over-bill-c-11/ 19 “Chris Bittle Demands “Investigations” Into People Daring to Criticize Bill C-11” (Freezenet) https://www.freezenet.ca/ chris-bittle-demands-investigations-into-people-daring-to-criticize-bill-c-11/ 20 “Canada’s Link Tax (Bill C-18) Tabled. Our Analysis” (Freezenet) https://www.freezenet.ca/canadas-link-tax-bill-c-18- tabled-our-analysis/ 21 Bill C-18 –

Section 11 http://www.parl.ca/DocumentViewer/en/44-1/bill/C-18/third-reading#ID0E0OD0AA 22 Bill C-18 –

Section 27 http://www.parl.ca/DocumentViewer/en/44-1/bill/C-18/third-reading#ID0E01C0AA

Of course, this assumes that platforms would be willing to pay for news links in the first place without question. Evidence, however, suggests otherwise. Facebook, for its part, has said not once23, but twice24 that it is seriously considering blocking news links should Bill C-18 become law. Some Bill C- 18 supporters have insisted that such remarks are little more than a bluff and that platforms would not really follow through with such threats. Often, these supporters cite what happened in Australia because Facebook and Google backed down.

Left unsaid, however, is the fact that Google did, in fact, carry through with similar threats in Spain back in 2014.25 The end result was obvious to anyone who knows the industry well enough. Revenue and traffic to news Spanish news sources plummeted, resulting in those same publishers begging for Google to return. By one estimate, traffic to Spanish publishers plummeted by 14%, leading some to even shut down entirely as a result.26 The harm of such a move was almost exclusively felt on the publishers side, not on the platform side.

If it wasn’t obvious before, it was after the news broke: publishers depend on platforms far more than platforms depend on publishers. This point is compounded by the fact that Facebook’s main feed contains news links in 4 in every 1,000 posts and is, subsequently, taking steps to de-prioritize news links further.27 In February, Google has conducted a test presumably to see if blocking Canadian news links is viable.28 The test itself affected 4% of Canadians, meaning that 96% of Canadian’s were not affected. I personally wasn’t part of the 4% of the test.

Anecdotal evidence, however, suggests that those who were affected saw no Canadian news outlets in Google News in search results. A number of media outlets falsely claimed that Google was blocking access to news. The truth is that Google has no power to block Canadians from accessing news. Anyone affected by the test could still access news by accessing the URL directly. What was, in fact, blocked, was the display of news links on their service.

Some lobbyists called the move disrespectful.29 No matter what supporters of Bill C-18 say, however, nothing will change the fact that this is a business decision held on private virtual property. Google is well within their right to conduct such a test and isn’t under any obligation to actually carry such news links in the first place. Because Freezenet has no mechanism to opt out of Bill C-18, and no way of even financially benefiting from Bill C-18 after, the picture is grim for operations like Freezenet.

Freezenet takes all the risk of never having access to platforms for link publication with no hope of ever benefiting from it. Freezenet, in this regard, would be considered little more than collateral damage in the grand scheme of things. If the test by Google becomes permanent practice across platforms, the ability for Freezenet to reach a global audience would, without dispute, be significantly damaged.

All over a law that small outlets like Freezenet never asked for in the first place. 23 “As Facebook Renews Threat to Block News Links, Government Shuts Down C-18 Debate” (Freezenet) https://www.freezenet.ca/as-facebook-renews-threat-to-block-news-links-government-shuts-down-c-18-debate/ 24 “Facebook Threatens to Pull News Links from Platform in Both Canada and the US” (Freezenet) https://www.freezenet.ca/facebook-threatens-to-pull-news-links-from-platform-in-both-canada-and-the-us/ 25 “Google News Spain to close in response to story links 'tax'” (The Guardian) https://www.theguardian.com/technology/ 2014/dec/11/google-news-spain-to-close-in-response-to-tax-on-story-links 26 “New study shows Spain’s “Google tax” has been a disaster for publishers” (Arstechnica) https://arstechnica.com/tech- policy/2015/07/new-study-shows-spains-google-tax-has-been-a-disaster-for-publishers/ 27 “Facebook Mulls Purging News Links from It’s Main Feed, Stop Paying Link Taxes” (Freezenet) https://www.freezenet.ca/facebook-mulls-purging-news-links-from-its-main-feed-stop-paying-link-taxes/ 28 “Canada Was Warned: Google Begins Testing Blocking News Links in Canada” (Freezenet) https://www.freezenet.ca/canada-was-warned-google-begins-testing-blocking-news-links-in-canada/ 29 Bill C-18 Supporters Before Google Test: They’re Stealing from Us!

Supporters After Test: Not Stealing News is Disrespectful! (Freezenet) https://www.freezenet.ca/bill-c-18-supporters-before-google-test-theyre-stealing-from-us- supporters-after-test-not-stealing-news-is-disrespectful/

The Benefits of Bill C-18 to Small Local News is Dubious At Best While everyone shares a collective risk to having their news links blocked on platforms, the benefits of such a bill seems to have been greatly exaggerated. Some supporters of Bill C-18 have said that this bill will completely revitalize the news sector with unprecedented hiring, increased revenue, and an industry wide difference being as stark as night and day. The Parliamentary Budget Officer (PBO) estimated that revenue derived from Bill C-18 is estimated to be $329 million per year.

The numbers starkly showed that the largest industry players would hoover up 75% of that revenue ($247,677,000) while leaving everyone else with the scraps of ($81,550,000). The overall number left over is even worse thanks to an amendment to

Section 27 (1) (

a) which ultimately includes any radio station that so much as have “spoken word”, let alone contribute to Canada’s journalism ecosystem.30 Optimistically, smaller players would, in this scenario, receive a mere $46,151 per year. Depending on region, that may or may not cover the cost of hiring a single journalist. Even those numbers, however, are highly optimistic as the Heritage Ministry released its own modelling after the PBO released theirs. According to their figures, Bill C-18 would pull in only $150 million.

Assuming the 75%-25% split, smaller players would receive, optimistically, on average, $21,222.41 per year. In many regions of Canada, that likely won’t even cover a janitor cleaning out the garbage cans for part time, minimum wage.31 A journalism revolution this is not. Some Bill C-18 supporters may insist that the Australian model of the Australian News Bargaining Code would disagree with this kind of assessment. Some have wildly claimed that the situation in Australia consists of a full blown revolution in journalism, with unprecedented hiring within the sector. Those claims, however, are wildly exaggerated.

This year, News Corp Australia, the largest beneficiary of the Australian News Bargaining Code, slashed 1,250 jobs – or about one in every twenty jobs. Layoffs continue to be part of the journalism picture in Australia and suggests that the Australian model has failed to deliver what was promised.32 It is difficult to see the picture being any different in Canada. The National Threats are Clear While

Section 27 would eliminate Freezenet from eligibility, this same

section would also allow low quality news outlets, foreign misinformation campaigns, as well as conspiracy theory websites, to easily obtain compensation. This raises the possibility that Russia could obtain government mandated funds from platforms, circumventing international trade sanctions. Further, it would offer a financial incentive to build “click bait” farms as well, resulting in an increased flood of misinformation flowing through the news feeds of Canadians that could make the problems seen today seem quaint by comparison. Platforms have few to no legal recourse to exclude such sources from receiving financial compensation as per

Section 31.

Google, for it’s part, did point out this flaw in the bill.33 Bill C-18 is Dead on Arrival from a Technological Perspective 30 “As Small Players Left Out, Bill C-18 Amendment Means News Production Optional to Benefit” (Freezenet) https://www.freezenet.ca/as-small-players-left-out-bill-c-18-amendment-means-news-production-optional-to-benefit/ 31 “PBO May Have Overestimated Financial Benefits of Bill C-18 By 50%” (Freezenet) https://www.freezenet.ca/pbo- may-have-overestimated-financial-benefits-of-bill-c-18-by-50/ 32 “The Promised Land That Wasn’t: After Getting Link Tax, News Corp Australia Slashes 1,250 Jobs” (Freezenet) https:// www.freezenet.ca/the-promised-land-that-wasnt-after-getting-link-tax-news-corp-australia-slashes-1250-jobs/ 33 “Google Warns that Bill C-18 Could Fund Misinformation Campaigns” (Freezenet) https://www.freezenet.ca/google- warns-that-bill-c-18-could-fund-misinformation-campaigns/

At its core, Bill C-18 only envisions a centralized, public platform from an enforcement perspective. The internet, however, is in a constant state of change and evolution. For instance, Mastodon is an increasingly popular microblogging alternative to Twitter. With the takeover of Twitter by Elon Musk, Mastodon has seen a massive surge in traffic, activity, sign-ups, and new servers.34 Mastodon is a completely decentralized social media platform with independently run servers (known as “instances”) all over the world.

At absolute best case scenario, Bill C-18 would be enforced on Canadian instances while international instances would be free of constraints brought on by Bill C-18. This would only encourage users to switch from Canadian instances to others. Such a move is trivial for users, but renders enforcement of Bill C-18 all but impossible. Mastodon isn’t the only service available that would render Bill C-18 impossible to enforce. Other platforms such as the encrypted Telegram network or private Discord servers would also be places people may or may not share news links.

All of the aforementioned services have been around since before Bill C-18 was even tabled and only continue to grow in popularity. As such, Bill C-18, from a technological perspective, was obsolete before it was even first tabled. International Threat of Trade Retaliation is Obvious Though potential payouts to small local journalism outlets is of questionable value (or non-existent), the financial risk to the entire country is potentially very large.

The United States, through its ambassador to Canada, has sent not one35, not two36, not three37, but four warnings38 about the trade violations presented in Bill C-11, Bill C-18, and the Digital Services Tax. The Computer & Communications Industry Association (CCIA) has published a white paper explaining in detail why Bill C-18 violates both CUSMA and the Berne Convention.39 Briefly, the CCIA contends that the

section talking about making available of news content violates

Article 10(1) of the Berne Convention. As for CUSMA, the CCIA says that the designation of Digital News Intermediaries violates articles 14.4, 14.5, 15.3, and 15.4 of CUSMA. The CCIA contends that

Section 27 of Bill C-18 violates Articles 14.4, 15.3, and 19.4 of CUSMA as Canadian news sources would have an unfair advantage over international news organizations. Also, the CCIA contends that

Section 51 of Bill C-18 violates

Article 14 of CUSMA. Additionally, Senators Ron Wyden (

D) and Michael D. Crapo (

R) signed a bipartisan letter urging The Office of the United States Trade Representative (USTR) to “ensure that the United States gets what it bargained for, including by fully pursuing enforcement actions as necessary”, explicitly singling out Bill C-11 and Bill C-18 as points of international trade contention among others.40 34 “The Silver Lining to Musk Twitter Takeover?

Mastodon Getting Close to 9 Million Users” (Freezenet) https://www.freezenet.ca/the-silver-lining-to-musk-twitter-takeover-mastodon-getting-close-to-9-million-users/ 35 “The US Enters the Chat, Expresses Concern Over Bill C-11” (Freezenet) https://www.freezenet.ca/the-us-enters-the- chat-expresses-concern-over-bill-c-11/ 36 “US Government Reiterates Their Concern With Bill C-11, Bill C-18” (Freezenet) https://www.freezenet.ca/us- government-reiterates-their-concern-with-bill-c-11-bill-c-18/ 37 “US Warns Canada a Third Time About Trade Tensions Surrounding Bill C-11” (Freezenet) https://www.freezenet.ca/us-warns-canada-a-third-time-about-trade-tensions-surrounding-bill-c-11/ 38 “US Issues 4th Warning Against Canada Over Bill C-11, Bill C-18, Digital Services Tax” (Freezenet) https://www.freezenet.ca/us-issues-4th-warning-against-canada-over-bill-c-11-bill-c-18-digital-services-tax/ 39 “Bill C-18 (Canada’s Link Tax Law) Violates USMCA According to New White Paper” (Freezenet) https://www.freezenet.ca/bill-c-18-canadas-link-tax-law-violates-usmca-according-to-new-white-paper/ 40 “US Senators Now Warning Canada About Trade War With Bill C-11, Bill C-18” (Freezenet) https://www.freezenet.ca/ us-senators-now-warning-canada-about-trade-war-with-bill-c-11-bill-c-18/

Some may insist that the US would never initiate trade action against Canada, however, this was proven wrong when the US established a CUSMA Dispute Panel over Canadian dairy products.41 The signs point to the fact that trade retaliation isn’t a matter of “if”, but “when”. Fixing Bill C-18 Adding a mechanism that would allow news publishers to opt out or waive fees for linking would go a long way to fixing the immediate threat small sites like Freezenet faces. Whether it is through an addition to

Section 11 or adding a separate amendment to clarify what options news operations have, this could go a long way to alleviating some of the worries I would have for my own operation as well as some of the worries others have. Also, provisions that require news publishers to show new spending on journalism to receive funding instead of just CEO bonuses would be helpful.

Unfortunately, with so many problems in Bill C-18, it is unclear how this bill can really be truly fixed short of scrapping the bill entirely or performing a complete overhaul with all stakeholders having input on the bill – the latter of which hasn’t really happened up to this point. Bill C-18 is the Wrong Approach to Fixing a Real Problem There is no question that there are problems trying to keep news outlets financially viable. Bill C-18, however, is the wrong answer to this. Treating news links as something that requires compensation completely flips the very nature of copyright and Fair Dealing on its head.

Nowhere else that I am aware of does referencing content require compensation. Essay’s written by students don’t require payment for merely referencing research material or scholarly sources. Access to material does, but not the act of referencing. It is completely unacceptable that referencing material on the internet should be any different. It is as absurd as to say that because this brief makes 41 references that I should be paying, say, $4,100 for all of those those references because they appear in this brief.

A much more appropriate debate would be to ask how government subsidies can better promote journalism. Should media outlets be given more or less? Who should benefit and should that list expand? Completely re-writing the very nature of copyright is a terrible alternative to this debate. Much like Bill C-11, Bill C-18 is a piece of legislation that is backwards looking. It sacrifices future Canadian business and innovation in favour of past business models. In this case, those business models are legacy physical newspapers.

It’s one thing to call for the preservation of old traditional businesses, but to sacrifice Canada’s future in our increasingly digital world was never going to be a worthwhile tradeoff. Canada needs to look forward and ask what it can do to bolster its innovative sectors to help them compete on the international stage. Unfortunately, the Canadian government has rejected that approach and allowed such innovations to die on the vine or force innovators to go it alone.

If the hope is to allow Canada to be an online and innovation hub for the world, it desperately needs to reverse course today and start listening to those innovators on how best to help them, not ignore them and accuse them of being invalid forms of creativity or innovation. By pressing forward with bills like Bill C-18, it is doing precisely the latter.

As a result, it will mean Canadians will pay the price both today and for generations to come. 41 “Despite US Establishing USMCA Dispute Panel, Canada Poised to Pass Bill C-11 on Senate 3rd Reading” (Freezenet) https://www.freezenet.ca/despite-us-establishing-usmca-dispute-panel-canada-poised-to-pass-bill-c-11-on-senate-3rd- reading/