June 8, 2024
The highlight of the week in Canadian media has to be the CRTC’s release of its Phase One ruling on implementing the Online Streaming Act, Bill C-11.
News reports describe how beginning in September video and music streaming platforms must contribute five per cent of their annual Canadian revenues to various media funds that subsidize Canadian news and entertainment programming. With the details, here are reports from the Globe and Mail, CBC and Radio-Canada.
As to the wisdom of the Commission’s ruling, try Peter Menzies (critical) or Barry Hertz (supportive).
For my own comments, I am still working on that and hope to have something in a few days.
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Copyright law is everyone’s bedtime tea, yes?
For the last decade, the federal statute regulating the ability of content creators to monetize their own work, including news reporting, can’t seem to escape the gravitational pull of the “user rights” singularity. That refers to the judicially expanded rights of other people to consume content without paying for it.
Simple, it is not. The legal test drawing the line between ripping off creators by not paying or, on the other hand, using the copyrighted material for a limited non-commercial purpose is one of those “multi factor” things that turns the policing of content piracy into an unpredictable contest of competing claims.
There is a story to be told at greater length about how Blacklock’s Reporter, the uber-watchdog of the federal government, has now lost two Federal Court decisions in an effort to enforce its paywall subscription model without which it cannot remain in business.
Unlike some streaming services or news websites we could name, Blacklock’s does not wink at sharing content or passwords.
In 2016 Blacklock‘s lost a case of copyright violation at the Federal Court. The news site had filed suit against the federal government when Finance Canada officials circulated news stories among themselves that the department received from a Blacklock’s subscriber: despite that private subscriber buying only a single subscription and clicking the standard “browser wrap” consent to terms and conditions of purchase which prohibited sharing.
At the time, user rights advocate Michael Geist celebrated a victory for “the right to read,” while the country’s foremost copyright lawyer Barry Sookman said the court got it wrong on copyright violation.
There was a round two in the fight between Blacklock‘s and the feds, this time on the issue of whether a Parks Canada official sharing a password without permission violated rules on technological protection measures. TPMs include software locks and passwords.
No matter, last week the feds won again: password sharing is fine if the non-paying customer successfully claims “user rights.” Professor Geist celebrated again. And we are waiting for Barry Sookman to weigh in.
The implications for not only the Canadian news industry, but also any subscription-based streaming services, should be obvious.
Blacklock‘s publisher Holly Doan has not decided yet on an appeal, telling me “the ruling has huge implications for large password-using corporations and Canada’s agreements with the U.S. and Mexico on TPMs. No small business should be expected to litigate the meaning of the word “password” in 2024.”
“Users rights” are a strange beast.
The right or privilege to quote from copyrighted content, even at great length, seems a reasonable concession to the public interest and at least arguably sends more buyers to creators.
But the Federal Court’s endorsement of the right to reproduce or share without payment or permission the entire piece for the self-declared purpose of “research” or “education” is difficult to understand. After all, what is the difference between breaking a news paywall —-oh sorry, accepting a shared password—— to satisfy your curiosity about current events and claiming to do so legally “for research purposes?”
An earlier version of this post inaccurately identified Parks Canada as the respondent in the 2016 case.
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Josh O’Kane has written a feature in the Globe and Mail on the alarming state of finances in Canada’s arts sector (visual arts, books, music, theatre, dance and other live performances).
The confluence of inflation (affecting venue rents and ticket purchases), shrinking philanthropic donations and flat-lined government subsidies are hitting a cultural sector that already seems to live hand to mouth.
The biggest (and flat-lined) funder is the federal Canada Council of the Arts ($365 million in annual funding). Provincial governments modestly or generously top that up (Alberta at $30 million, Ontario at $60 million and Québec at $150 million).
The high visibility Canada Council may be set to become a political football yet again. Its funding was cut by Harper Conservatives, restored by the incoming Trudeau Liberals, and may soon fall under the beady eye of a Poilievre government’s finance minister.
Book publisher Ken Whyte has written a scorching review of the Council, suggesting its policy goals (by which I think he means priority funding for Indigenous, official minority language groups, and equity-searching communities) contribute to “a gulf between the Canada Council and the Conservative Party of Canada [that] is vast and unbridgeable.”
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