Michael Geist - The Shattered Mirror, Part One: Fair Dealing Reform Isn’t the Answer for News in the Digital Age
The Public Policy Forum released its much anticipated report on the future of Canadian media yesterday. The Shattered Mirror: News, Democracy and Trust in the Digital Age garnered considerable attention and may influence policy discussions over what – if anything – to do about the struggling media industry. I tweeted some initial responses to the report and plan several posts to examine some of the recommendations more closely.
This post starts with one of the worst (if unsurprising) recommendations: copyright reform. For the better part of two decades, business sectors facing digital challenges invariably think that copyright law offers a solution. It rarely does and definitely does not in the case. In fact, the proposed copyright reform to fair dealing would cause considerable harm to freedom of expression and the practice of news reporting with little likelihood of economic benefit.
The copyright recommendation is one of the least developed in the report as it pops up with no advance discussion or analysis. Rather, the report simply recommends:
The fair-dealing provisions of the Copyright Act, amended in 2012, are scheduled for review in 2017. We recommend that this review tighten usage of copyrighted news material in favour of creators, without unduly stifling the social power of sharing on the Internet. News producers have a right to benefit from their work for a reasonable period while pursuing the business strategy of their choice.
In the notes that follow, the report claims that aggregators, bloggers and others may use materials without permission by relying on fair dealing. The report concludes that “even if the material links back to its source, the original producer should be able to decide whether it wants to share–and whether it wants to negotiate compensation in some form.”
Simply put, the recommendation doesn’t make sense. There are at least two kinds of activities that seem to raise anger among some media companies. First, there are sites that largely re-write original reporting and run the alternative version of a story on their site with their own advertising. This may be the reference in the report to bloggers using materials without permission. For this form of use, fair dealing is not implicated at all. Copyright law is designed to protect specific 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.
Second, there are sites that aggregate content and link back to the original story. This has generated frustration among some media organizations, who fear that users rely on intermediaries and social networks to decide what to read. It is true that aggregators typically rely upon fair dealing (or fair use) to generate snippets or short summaries of the articles. Efforts in some European countries to legislate payments for snippets or create a “link tax” has been disastrous for publishers, where aggregators simply opt out the system, reducing traffic to the sites (and with it advertising revenues).
The report doesn’t recommend a link tax, but it does suggest somehow limiting fair dealing to grant greater control over the materials. Yet left unsaid is that fair dealing is exceptionally important for journalists and efforts to restrict it would harm the practice of news reporting. Indeed, news reporting is included as one of the purposes of fair dealing 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. If the media were required to seek permission each time it quoted from another work, expression would be curtailed and costs to produce original reporting would increase.
Not only is flexible fair dealing important to new reporting, but it is far from the free-for-all feared by publishers. Commercial republication of full articles is unlikely to qualify as fair dealing. The courts have rightly permitted copying and posting portions of articles for criticism or review purposes, but competitors cannot rely on fair dealing to copy and post full articles. The fair dealing fears are largely the stuff of fake news that is raised throughout the report and the ill-advised recommendation of reform would do more harm than good.
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