THE STANDING SENATE COMMITTEE ON TRANSPORT AND COMMUNICATIONS
EVIDENCE
OTTAWA, Wednesday, June 2, 2021
The Standing Senate Committee on Transport and Communications met by videoconference this day at 6:30 p.m. [ET] to study Bill S-225, An Act to amend the Copyright Act (remuneration for journalistic works); and, in camera, to consider a draft agenda (future business).
Senator Michael L. MacDonald (Chair) in the chair.
[English]
The Chair: Honourable senators, I am Michael MacDonald, senator from Cape Breton, Nova Scotia and chair of the Standing Senate Committee on Transport and Communications. Today we are conducting this meeting by video conference. Thank you in advance for your patience as we adapt to this way of holding our meetings. Before we begin, I would like to share several helpful suggestions which we feel will assist you in having an efficient and productive meeting.
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I would like to introduce the members participating this evening. First, the deputy chairs of the committee, Senator Dawson and Senator Miville-Dechêne, and our members: Senator Boisvenu, Senator Cormier, Senator Dasko, Senator Forest-Niesing, Senator Griffin, Senator Manning, Senator Simons, Senator White and Senator Woo.
Today we are beginning our examination of Bill S-225, An Act to amend the Copyright Act (remuneration for journalistic works). We have with us today our colleague, the Honourable Senator Claude Carignan, who is the sponsor of the bill. Senator Carignan, thank you for joining us this evening. We invite you to address the committee before we go to questions.
[Translation]
Hon. Senator Claude Carignan, P.C., sponsor of the bill: I would like to thank my colleagues for having me here to make this presentation.
It is an honour to testify before your committee in connection with your study of Bill S-225, An Act to amend the Copyright Act.
Given the major crisis the traditional media are experiencing relating to the loss of advertising revenue to the web giants, and the importance of those media in our society to ensure a healthy democracy, I believe that we must act now.
This crisis is a global one. In recent months, we have seen countries try to apply solutions that are for the most part legislative, and that has plainly prompted negative reactions from digital platforms like Google, Amazon, Facebook, Apple and Microsoft, commonly referred to as GAFAM.
These web giants alone now account for 80% of revenues from the various advertisers, and the problem is that they reign supreme and, month after month, cause the disappearance of many daily and weekly publications. Some will say that this is the law of the marketplace. That is not entirely accurate, since GAFAM companies fill their sites with news and information taken from the traditional media and pay no compensation. The law of the marketplace would actually mean that these web giants would pay the fair value for that content to the press outlets where they find their raw material, but that is not the case.
It is not reasonable for the web giants to rake in large sums of money for content they did not produce. In Canada, it is estimated that the advertising revenue taken in by GAFAM from print media content comes to between $200 and $600 million per year, money that largely goes to the United States.
According to the media studies centre at the Université Laval, daily newspapers’ revenue fell from 31% to 11% between 2003 and 2017, while the digital giants’ rose from 1% to 44%.
Countries such as Australia, France and Germany, as well as the State of Maryland, have enacted laws to regulate digital platforms and require them to redirect royalties to the traditional media or pay taxes on advertising. A senator in Minnesota has also introduced a bill to do this.
The owners of digital platforms have contested these legislative measures every single time and have even occasionally threatened to block entire populations from accessing their pages. Some have carried out their threat.
For example, Facebook recently shut down all its Australian media pages, which have been deactivated, as have Australian government pages relating to COVID-19, forest fires and suicide prevention, for example.
My colleagues will see that it is urgent that we act. In itself, the bill I have introduced is not a definitive response to this real problem, but it is a step in the right direction to get us thinking about what actions we should take.
To that end, the Senate, through its committees, can make an enormous contribution to this global issue.
There must be heightened cooperation among all of the countries concerned. As I said in my speech at second reading, I recently got a call from Berlin, from a media and technology company operating in over 40 countries. That company wanted to know more about the bill. This means that a real international movement is starting.
The purpose of my bill is essentially to amend the Copyright Act to provide Canadian journalistic organizations with a right to remuneration for the distribution of their journalistic works on digital platforms owned or controlled by providers that have been designated by the Governor in Council. It also amends the act so that this remuneration is managed by a collective society.
Collective societies will be composed of voluntary associations of journalism organizations that are recognized by the Copyright Board. This collective society, or these collective societies, will be authorized to negotiate, with the digital platforms designated by the government, the annual royalties to be paid by them to the collective society, which will then handle the distribution of the royalties to its members, on the terms established by the collective society.
The negotiations between the parties will result in agreement on a tariff schedule. In the event of disagreement, one of the parties may appeal to the board, which will rule on the matter.
The creation of collective societies is not mandatory. It is up to the industry to choose and to organize accordingly. The act simply gives them an additional tool to address the competition they are facing from the media giants of the world.
The Governor in Council may, by order, designate the owner or controller of a digital platform to be a designated digital platform provider for the purposes of this act.
The last point is that remuneration for journalistic works has a value that is payable for two years after publication.
Thank you for listening. I will be pleased to answer all your questions.
[English]
The Chair: Thank you, Senator Carignan. We will now proceed to questions.
[Translation]
Senator Miville-Dechêne: Welcome, Senator Carignan. First, of course, I find your bill interesting. I think that the timing is most opportune. It brings this issue onto the public stage. It is an important one for the media, and unfortunately we do not yet have a government bill on this subject. Your bill is therefore a welcome one. I am going to ask you some critical questions, because that is why we are here.
In the documentation I have read, there was an article that came from the law firm Bereskin & Parr, signed by François Larose, who was somewhat critical of certain aspects of your bill, including reducing the term of the copyright that the media could claim from GAFAM to two years. He wondered what would be done with press photos, which have a value well beyond two years. How can that right be enforced, when there is no other right in all the rest of copyright law that terminates after two years?
Works do have journalistic value that can last longer than two years. Why was the choice made to make the period so short? Obviously, for breaking news, that may make sense, but journalism is also about major investigative reporting, things that last over time.
Senator Carignan: Thank you for your question, which is very much on point. We set an expiry date of two years because we were mainly focusing on news, since a news item rarely lasts for two years, except in the case of very special reporting. We set an expiry date of two years, as in Europe, in fact; in France, it is also two years. These are certainly things that we can consider.
That being said, it is important to make the distinction between remuneration and copyright. What we are adding here is a right to remuneration, which is for a period of two years. The copyright itself is maintained. The work continues to be protected, the difference being that if it is used after two years, there would be no right to remuneration that would be payable after that period.
Once again, as I often say, when a bill is introduced in the Senate, we don’t claim that the bill cannot be perfected; quite the contrary. We are open to suggestions. If there are things that mean the right to remuneration should be extended for photographic works, I have no objection. The reference to two years comes from a suggestion from France and it applies more to the lifespan of a news item, for it to have a commercial value, and not a right to remuneration.
Senator Miville-Dechêne: You are talking about written journalism, essentially; as you know, most newspapers, today, also do video reporting, to try to stay afloat, or to try a new model. Will those video works not be protected?
Senator Carignan: No, unless it is a work or a video that reiterates a written text. Obviously, this would take us into a hybrid right or a hybrid section, but the objective, whether for a written text, a photograph or certain media for the hard of hearing, where there is automatic text reading, would be to provide protection.
Mixing video with news is a hybrid composition; the courts would probably be the ones to rule on its intrinsic value or the substantial element. So if the video reiterates the written text exactly or almost exactly, I think there would be protection. In any event, these would be points to be negotiated between the collective society and the platforms, to assign a particular value to the video. Once again, the issue is the right to remuneration; that is part of the negotiations between the collective societies and the digital platform organizations.
Senator Miville-Dechêne: Thank you very much.
[English]
Senator Simons: Of course, as critic of the bill, I have critical questions, although I want to thank Senator Carignan very much for putting this issue on the national agenda.
Your bill specifically excludes the sharing of hyperlinks. I understand that is because there is a lot of Canadian case law that says that a hyperlink is not a republication. However, your bill would only come into force when people shared entire articles or significant excerpts of articles. That almost never happens. When it does happen, it is very difficult to trace. A copyright collective like SOCAN can trace every play of a song and track down people who have used the music and demand their royalties.
Do you imagine that a company would have to discover that somebody’s aunt cut and pasted part of something to Facebook, or would you simply establish an understood royalty amount that would be automatic, even if copy wasn’t being shared in that way?
[Translation]
Senator Carignan: On the subject of hyperlinks, that is a very interesting question. I had initially excluded that subject, because it was just an address or a link in which only an address was provided. However, there are sometimes contextual elements that create a link to an address, that give substantive information or that create a link using a title. I have heard some comments and I have read a number of criticisms on that point. I would be quite comfortable accepting a proposed amendment to include hyperlinks in the bill.
On the idea of complete articles, the bill talks about substantial parts of the news item or the article. There is also case law, including the decision in Cedrom SNI inc. v. Dose Pro inc. involving La Presse and Le Devoir, which is a 2017 decision of the Superior Court of Quebec given by Justice François P. Duprat. The lead in the title is a significant part of the news item. The title is chosen to attract attention to the content of the news item and the decision of the Superior Court of Quebec held that it is a significant part of the article that would also be covered by the protection or right to remuneration.
You will often hear me say that the bill creates a context for negotiations between the digital platforms and the press outlets, so there is a lot of room left for negotiations to determine these points, to make proposals and ensure that the spirit of remuneration is honoured, as long as there is a link with relatively significant elements of the news that is reported.
[English]
Senator Simons: I’m sorry, I don’t understand how this would work. I do not think that you can include hyperlinks, because there is clear Canadian case law that says that a hyperlink does not constitute a republication. There are clear exemptions in the Copyright Act for fair use and fair dealing which would make it—
[Translation]
Senator Carignan: That is not what I am saying. In technological terms, the tools are very advanced. When you click on a hyperlink, the fact that the click occurred can be measured, and then how much time, seconds or microseconds, were spent on the text can be determined using technological tools.
So all that is measurable and is part of, or could be part of, the negotiations.
[English]
Senator Simons: Yes, but your bill specifically excludes hyperlinks so that wouldn’t apply.
[Translation]
Senator Carignan: I know, and that is what I said: that it was my original intention to exclude them, but I am open to making an amendment to include them and I think they should be included.
Senator Cormier: Senator Carignan, thank you for this bill, which is generating a lot of questions. I am going to try to be succinct.
First, I need a clarification — you will forgive me if I do not have this answer. A journalistic work is defined in the bill as any literary or artistic work. So this raises the question for me, I would like to understand what artistic means in this context. What is included in the definition of journalistic work? This is a point of clarification that I would like to hear your thoughts on.
As you know, I am very concerned about regional, community and local media; GAFAM is not solely responsible for their advertising revenue losses. Competition among the large and small traditional media outlets is also a factor.
Regarding the collective societies, we know that the act does not provide any requirements for their organizational structure, that is, the way in which they obtain their repertoires, how they manage them, the nature of their relationships, and so on. You also talked about Berlin, where one of the associations had the idea of bringing large traditional media outlets together. Would that be risky? I would like to hear your thoughts on the subject of the imbalance there will be between the big traditional media outlets and regional media.
As a final point, regional media also place content directly on GAFAM forums, so how will they be remunerated?
Senator Carignan: That will be part of the tariff proposal. First, people and organizations are free to set up or not a collective society. Again, the bill adds a possibility for revenue, but it is not the only revenue possibility. I am not claiming that the bill is the solution to every ill, but I think it is part of the solution; there may be others.
Last week, we saw that Le Devoir and Le Soleil, among others, signed an agreement with Facebook concerning pilot projects and validation applications that the new union and Facebook are seeking to put in place.
The negotiations will be conducted by the collective societies that will be set up. In the event of a disagreement, the collective society, as you know, will propose a method, a tariff, and the board will hear cases and give judgment. There is an arbitrator, so it is somewhat as if it had been modelled on Australia, where there is an impartial third party who determines the content if no agreement is reached.
That is all part of the negotiations. The small media outlets will also be able to organize into collective societies to put their demands forward. From that point, nothing is off the table, so the number of clicks is not the only thing that will be part of the remuneration; it will also be the nature, the substance, of the news item. Is there a more scientific article that is less well known, but would have more value in terms of content?
That is all part of the negotiations that may be undertaken in order to obtain fair compensation.
Senator Cormier: Briefly, what about independent journalists who do not necessarily register their works; are they excluded from this system?
Senator Carignan: In fact, the Copyright Act provides that when a journalist signs an agreement with a media outlet, they are then protected; the licence belongs to the media outlets.
When this system is put in place, it will change the framework for freelances and journalists, in particular, because they will be able to negotiate under the new system, and say, “Now that you have this right to a royalty, I want to have part of it too, in my employment contract.” It will be a term that freelances or journalists who produce content will be able to negotiate with their employers or with the media outlet, to be able to access a larger part of that remuneration.
Senator Cormier: Thank you, Senator Carignan.
[English]
Senator Griffin: I find the bill very interesting. Like many others, I am concerned that people are not getting properly paid for their work. I also like reading the newspaper in the morning, and there are fewer and fewer writers filling up that newspaper, fewer deep thinkers.
You mentioned it’s one step, it’s one tool, it’s part of the solution. And you’ve already mentioned you would be willing to accept hyperlinks as an amendment. What are other tools that you would see as being priorities in terms of solving the issue that you’re trying to solve with this bill, other tools that either could be part of this bill as amendments or could be a separate bill or government policy or regulation?
[Translation]
Senator Carignan: That is the part that interested me, in that I find it abhorrent for a content producer to have their content taken by a platform with no remuneration, even if, sometimes, because of the system or infrastructure in place, the content owner needs to promote to promote it himself on the platform or infrastructure, because of how omnipresent the entire digital phenomenon has become. That is the part that I decided to address, in particular.
Now, what are the other methods? Listen, there are as many as we can imagine. This afternoon, when I was preparing, I read a bill introduced by the State of Maryland, in which they want to tax the advertising put on social media and allocate that money to schools, for example, but that could be to support journalism. There is a multitude of other tools that could be used. I decided to lay one foundation stone in order to protect copyright and the use of a content product, an intelligent product that has added value, but there are certainly other methods, including taxing the web giants.
I am not fond of the single argument that now that the web giants have made off with a portion of the advertising, thanks to their model, we should tax them in order to restore balance and give back to the lower performers. That being said, these are choices to be made by society and by Parliament. The argument that I am making, and the situation I find truly unfair, is using intelligent content that has been produced in an original format to profit from it without compensating the author or the organization that holds rights in it.
[English]
Senator Griffin: Thank you.
Senator Dasko: It’s a very interesting bill. I’m still trying to get my head around it.
I’m from Toronto, so I have to be interested in the big media. That’s a joke, in contrast to Senator Cormier. I am interested in the responses you are getting from the media organizations I know well, which are The Globe and Mail; the Toronto Star; and Canadian broadcasters such as CTV, CBC, and so on. I would like to know what reactions they have to your bill — also, Facebook, Twitter and the platforms. Let’s start with the media organizations that I mentioned.
[Translation]
Senator Carignan: I think the big media outlets have organized, at present, under the name Canada News, and they are putting a lot of pressure on the Government of Canada to get compensation. I think Mr. Guilbeault spoke on the subject and said that a bill would be introduced this spring. Spring before over. From what we have heard, there will not be a bill; it will be a white paper. If you want my opinion, there will be no white paper, with an election being held this fall; it will come to nothing.
They are putting themselves in a position where they do not want to hurt their relationship with the minister, until they realize they are not going to do anything. They will probably be more interested in the method I am proposing or in finding a formula similar to Australia’s, that may be incorporated very well into the present bill, because there are major similarities as a result of which a hybrid formula can be developed.
Curiously, Facebook and the other social media have not reacted strongly for the moment, but they have reacted indirectly by signing an agreement with certain pressure groups, including Le Devoir, the co-op Le Soleil, and a group in English-speaking Eastern Canada in connection with a pilot project.
Without disclosing the names of the people I have spoken with, who participated in the negotiations, the possibility of a law being passed and the introduction of my bill are certainly prompting increasing concerns. Social media are feeling a need to start paying or to find formulas for paying for content that is produced. I do not know whether you have had a chance to read about the pilot project, but they want to validate facts. A link will be used to validate a news item and check whether it is fake news by taking the reader to a reliable, verified source, which is positive.
So there is actually some openness. For example, Apple News has signed agreements with a number of media outlets, including L’actualité, La Presse and Le Devoir. Compensation has been paid for articles that are produced and read. There is an entire method of reading based on clicks. They can measure the time spent on the article and get an appropriate amount of remuneration. Not all digital platforms are opposed to a compensation approach. Apple News is a good example. The press outlets and a digital platform have signed an agreement for what is actually significant compensation, according to what the various media outlets have told me.
So it is a formula, it is an addition. It is not exclusive. It is not mandatory. It is one more tool to ensure fair compensation for the work.
[English]
The Chair: Senator Dasko, do you have a follow-up question?
Senator Dasko: No, thank you. That was very helpful.
Senator Woo: Thank you, Senator Carignan. Can you help me understand the distinction between right to remuneration and copyright? You mentioned that the two-year right to remuneration does not extinguish copyright, which is for much longer, but what is the point of a copyright if you don’t have a right to remuneration? Is there something I’m missing here in the distinction between these two categories?
[Translation]
Senator Carignan: No, the copyright belongs to the person who owns it. A royalty will not necessarily be paid. That is a question to be negotiated with the person who owns the copyright. A person who owns the copyright is in a position to negotiate. That person alone has the power to act in relation to the title of the work they own.
Compensation is another matter: it is the revenue that results from this. For example, the right to remuneration is a right that is added and for which compensation is provided, but it is not the only compensation possible when a person owns the copyright.
If I produce a musical work, I can sell it and negotiate various uses of it, for example by making a record. I can also be remunerated under the Copyright Act, in connection with the collective societies that are created to record when the music is listened to on the radio, in particular. This is an additional method for securing a source of revenue.
This is particularly important and you do well to ask the question. It is fair use when there is copyright. If the news item is used fairly, for example, there is no copyright violation, but fair use does not mean that no royalty should be paid. Remuneration is received all the same. These are important nuances.
[English]
Senator Woo: Yes, they are, but does it then mean that if the right of remuneration is only two years — and I know you are open to a longer period — that the right of remuneration, then, is effectively lost even though you still have a copyright, while you may have other rights, such as right of usage and —
[Translation]
Senator Carignan: No. The copyright protection continues. It is the right to remuneration that is for two years. Obviously, there is a right to collect it after two years, but the period when it is used extends to two years after first publication. As I said earlier, in the case of a news item, an advertorial or a truly substantial report that has added value, I am open to them being protected beyond two years, because it is fair to do so over a longer period.
[English]
Senator Woo: Yes, you’ve been very clear on that. That’s helpful.
I see the two-year period as a kind of enhanced copyright privilege where the copyright holder has increased powers of remuneration. I hope I’m summarizing it accurately. After the two-year period, or whatever period that one might settle upon —
[Translation]
Senator Carignan: Our copyright is still protected, that is, it is maintained. A work cannot be stolen, modified or manipulated; otherwise, copyright is being infringed. That protection remains. However, the right to remuneration is provided for a two-year period.
[English]
Senator Woo: Thank you. Do I have time for a follow-up?
The Chair: I’ll put you on second round, senator.
[Translation]
Senator Forest-Niesing: Senator Carignan, thank you for being with us this evening. My question is about the Australian model. In October 2020, News Media Canada asked the federal government to adopt an approach similar to Australia’s to combat the monopolistic practices of the web giants.
I am wondering what the main features of the Australian model are that do not appear in your bill, to combat monopolistic practices more stringently.
Senator Carignan: That is a good question. I would say that I compare the Australian model to negotiating a collective agreement, in which both parties have a framework, a structure. There is the kind of last best offer that the parties present, that would have to be accepted if no agreement is reached. That forces the parties to move closer, because if an offer is reasonable, the arbitrator who makes the ruling may choose one or the other without necessarily creating a mixture or choosing parts within an offer.
Obviously, that results in a certain type of remuneration, while with the copyright model, the Copyright Board may make the decision that it considers fair, based on certain points from each position, with the aim of creating something else. That formula is a little more complex, while the other is perhaps simpler to apply. Which one is better?
Europe has adopted the same one as I am talking about here, and which, I think, fits better with the Canadian tradition, while Australia focuses more on negotiation. The Australian system places greater emphasis on competition and adopts a more commercial model. There are some fine distinctions to be made, still, but I would say that this is the big difference.
For the rest, there is an impartial third party and a desire to create content that has a fair value. The Australian law establishes certain criteria that determine what will produce value. Personally, I do not do that because I leave it to the parties to negotiate the value criterion. Plainly, this will have an influence on what has value and how financial value is to be assigned. This will all be included in negotiations and points to be decided. Even if they are not specified in the act, the criteria have to be established in order to determine what does or does not produce value. The bargaining process will establish this and the Copyright Board will rule if there is a disagreement.
Senator Forest-Niesing: Thank you.
Senator Boisvenu: I have two questions. The first refers to the speech given by Senator Simons last week, in which she said there was no clear definition of a journalist in Canada. Is that true?
Senator Carignan: In fact, there is one. We worked on that definition during the study of the bill on journalistic sources. We defined what a journalist is in relation to the Evidence Act. Nonetheless, there are certain points that define a journalist in relation to the different acts.
It is true that journalists are reluctant to be governed by a professional body. It annoys them when that subject is brought up. Nonetheless, as I said, the Evidence Act defines what a journalist is, and therein lies the beauty of the bill. That is why, by assigning the right to remuneration to the press outlet that hires a freelance or a journalist or someone who is going to create content, knowing whether the person is a journalist, a semi-journalist, a part-time journalist, or a blogger is of little consequence. If the person produces content that meets the definition of a journalistic work, that is published in a media outlet and is republished, the bill avoids those discussions for determining whether the person is a journalist or not.
Senator Boisvenu: That is what we have seen over the last 10 years with the advent of the Internet. The journalist’s profession has changed considerably. At the time, journalists had long careers in the media and were very loyal to their company. Today, what we see is that the media — especially digital media — make extensive use of freelances, and there is no obvious employer-employee relationship. Is the bill going to protect freelances who go from one company to another and produce content? Are they going to enjoy the same protection?
Senator Carignan: Obviously, the right to remuneration goes to the press outlet. If I am a freelance and now I know that the press outlet is going to be getting remuneration for my work, I will be able, in my negotiations with the media outlet in question, to establish terms of employment or remuneration that take that additional revenue into account. A freelance can sell their article to a particular media outlet for a specific territory, and sell it again to another one for another territory. The final point is that this will all be negotiated between the freelance journalist and their employer or the press outlet that retains their services.
Senator Boisvenu: My other question concerns especially the authors of short stories and books, especially the ones who do research. There are a lot of authors who deal with the environment, the economy, and so on. At present, they have copyright when their texts are reproduced in a university or in the media; if I understand correctly, they are going to get double protection by adding the right to remuneration. Does that mean that the author will have to negotiate with two different bodies?
Senator Carignan: When the person negotiates their contract with the publisher, that is when they will have to deal with it. At present, they do not deal with it, because there is no such remuneration, so publishers do not include it in the authors’ contract, but it will be one of the items for negotiation.
Senator Boisvenu: Since I have written a book, it is the Copyright Board that contacts me each year and tells me that my book has been reproduced, and I receive a cheque. The terms and conditions were negotiated at the outset. For information, the author will have to negotiate two items, the right to remuneration and copyright?
Senator Carignan: That is correct. And you will probably receive a cheque from the Union des écrivains, which also negotiated. This also applies to copies that are in libraries, funds that are created for photocopying in universities, in particular. So this will be an additional source of revenue to negotiate.
Senator Boisvenu: Thank you.
[English]
Senator Simons: I want to thank Senator Woo for his question because it clarified something for me and I hope for other people. When a recording artist makes a CD, they sell the CD and they have copyright of that music. If I steal that music, I’ve violated their copyright. They also licence that music to bars, restaurants and gym facilities, and they have royalty agreements through SOCAN with radio stations. They receive royalties for the reuse of their music. So this is the paradigm you’re working with.
Senator Carignan: Exactly.
Senator Simons: Does that paradigm work for the news industry in a scenario whereby news organizations are sharing very proactively and, indeed, very aggressively with web giants because they believe they will make money by monetizing the clicks they get by selling advertising on their own websites?
I know it is tempting and convenient to be angry at the web giants who have so much money and power and who curate what we see, but on what moral basis do we ask them to pay for what is being freely offered and given to them? The Australian model that forces people to the table and forces them to negotiate almost makes more sense to me because it’s just brute force without an attempt to find a legal solution.
[Translation]
Senator Carignan: The web giants really do have a responsibility. They have built a certain infrastructure, they have established the rules of the game, and they are using content that they should pay for.
For example, if I subscribe to the Globe and Mail, and the paper takes an article and promotes it on social media — and even pays to promote it — and it uses it as an investment formula so that it will generate even more revenue, and it is able to go after part of the money invested, in royalties, well, that is an addition to the business model. There is nothing shocking or immoral in that.
[English]
Senator Simons: What I’m saying is the reason that news organizations share their content is to make money. They make more money by sharing their content, relatively speaking, than the companies do by monetizing it because, as I think I explained in the chamber, the companies do not really make any money by monetizing the news. They make their money by having stolen the advertising market.
Is it not cutting off one’s nose to spite one’s face? Because when I worked for the Edmonton Journal, our whole raison d’être was to get as many platforms to share our links as possible. If we lost that source of revenue, because companies decided not to share the links, we would have been in tremendous trouble.
[Translation]
Senator Carignan: Yes, but at that point, it is interesting: it is exactly this point that is discussed during negotiations between the collective society and the digital platform. They are both going to be able to assign a certain value to it, and, in the course of the negotiations, to set remuneration that will reflect the fact that they have made a certain contribution and there will be a return on the investment. That will be part of the negotiations. The arbitrator will decide. In Australia, it is an arbitrator; here, it will be the Copyright Board. It will be part of the negotiations; that does not shock me.
Senator Cormier: Senator Carignan, are we trying to control something that is no longer controllable? Senator Simons says the traditional media simply give their content to GAFAM. I am asking you an open question: Will the legislative instrument you are proposing really succeed in controlling something that seems to be beyond control?
Senator Carignan: I am not claiming that the bill will solve all the problems, as I explained earlier. It will be an additional tool for getting revenue, or remuneration, to ensure that there is compensation for the content created by journalists, often investigative journalists, that is picked up by GAFAM.
I would like to point out that if an article contains an error and there is a lawsuit for damage to reputation or defamatory libel, for example, it is the journalist or press outlet that will be sued, not the GAFAM platform that transmitted the message. If the message is transformed at a press outlet, ordinarily the press outlet is sued, but GAFAM, which is the medium, is not sued. So GAFAM makes money with the article and on top of that they will not be sued.
Senator Cormier: Excuse me for interrupting you, senator, but time is short. You did not answer me just now about the word “artistic.” Does this bill also affect the arts sector?
Senator Carignan: Yes, since if it is literary criticism or criticism of a play, or a caricature, that is art, so it is an artistic work.
Senator Cormier: Right, thank you.
[English]
Senator Woo: Senator Carignan, I understand now that you’re actually quite agnostic about the collective idea. You say maybe it could be formed or maybe it doesn’t have to be formed.
Can you give us a little bit more of your thinking of why you proposed it in the first place? How central is the idea of a collective to this remunerative model? Can it function without a collective? Is it your preference to have a collective or not have a collective? How would a collective organize itself —
[Translation]
Senator Carignan: I am not sure that I understand your use of the word “collective.” Ah, are you talking about the collective society?
[English]
Senator Woo: Yes, the collective society.
[Translation]
Senator Carignan: If this were to be negotiated piece by piece for each press outlet, it would be impossible, since there are far too many. The advantage of them organizing into associations is to ensure that there is a model that functions and will manage subsequent redistribution. It is like the collective bargaining principle in labour law: if we allowed 3,000 employees to negotiate their individual rights, it would never happen.
[English]
Senator Woo: But the royalties would only go to the owners of the material, not to those in the collective whose material was not used. So it could be that many members of a collective get no royalties because their material has not been used. There’s no benefit to them. It’s just the big guys in the collective who would reap most of the benefit. Is that fair to say?
[Translation]
Senator Carignan: Yes, but that is the law of the marketplace. So I might have a very small newspaper that produced an exceptional article that is picked up by a huge number of media outlets, and I would get more remuneration than a big paper that produced something of no value that attracted no attention, which would mean that it had no commercial value and generated no remuneration.
[English]
The Chair: Thank you, senators. This brings us to the end of our panel.
I would like to thank you, Senator Carignan, for taking the time to meet with us and for the insight you shared with us as we examine this bill.
(The committee continued in camera.)