Honourable senators, I am honoured to speak today as the official critic of Bill S-225, An Act to amend the Copyright Act (remuneration for journalistic works).

I want to begin by sincerely thanking this bill’s sponsor, Senator Claude Carignan, for bringing forth this legislative proposal which addresses an urgent question about the existential crisis facing journalism in Canada, particularly in print journalism.

This debate could not be more timely; indeed, it is long overdue. I want to commend my Senate colleague for putting this issue squarely on the parliamentary agenda and for goading us all to think long and hard about new and creative solutions to the challenges facing Canadian journalism and about what the collapse of the Canadian journalism industry, as we once knew it, means to the well-being of Canadian society and Canadian democracy.

This issue matters profoundly to me, not just as a senator but as someone who dedicated 30 years of my professional life to the craft of journalism, working for newspapers, magazines and both public and private radio. Let me begin by painting you a picture.

When I first started at the Edmonton Journal in the fall of 1995, there were hundreds of writers, editors and photographers on staff. There were 40 news reporters in the “city” room alone. When I first arrived in the crowded Edmonton Journal newsroom, indeed I had to share a desk. It was mine during the day and belonged to someone else who worked the evening shift. And reporters didn’t just compete for physical space; we had to compete for space in the paper. Every day the assignment editors would assign far more stories than the paper had room to hold. The evening editors would then choose only the best ones to print.

We had fully staffed bureaus at City Hall, at the provincial legislature and at the courthouse. We even had a bureau at the University of Alberta campus. As I remember it, we had four reporters and a columnist in the legislature press gallery alone and a team of six or eight covering the crime beat.

Every floor in the five-story building was filled, not just with writers and editors, but with photographers, artists, designers, ad sales people, marketing staff, librarians and circulation sales teams.

But perhaps the most important people of all, and the people I took most for granted, were the lovely ladies who worked on the main floor taking the classified ads. Do you remember classified ads? They were tiny advertisements that cost very little but were the glue that held a community together. That’s where people went if they wanted to sell an old piano or a new kitten. It was how they advertised for a nanny or a snow shoveller or someone to work at their corner store. It was where you announced births, engagements and deaths or sought companionship of various kinds.

The ads were cheap, the type face was tiny, and most of us who worked in the newsroom had no idea how important those pages and pages of little classifieds were. But the classifieds, along with all the other advertisements for local businesses, were the newspaper’s bread and butter. Sure, we sold subscriptions. We sold newspapers in boxes and at newsstands, but daily newspapers in Canada made the vast majority of their vast income from advertising, not from selling their stories to readers.

Then one day the game changed. Buckle up now: I’m about to bury you in numbers, courtesy of the Canadian news media association.

In 2005, Canada’s daily newspapers took in a total of $875 million in classified advertising revenue alone — just the classifieds, almost $900 million.

By 2010, just five years later, the total classified advertising revenues for Canadian dailies had plummeted to just $462 million — a decline of almost 50% in five years. By 2019, classified revenues accounted for just $69 million in daily newspaper revenues. That’s a loss of more than $800 million in less than 15 years.

What happened between 2005 and 2010? The explosion of the Internet as an advertising platform. Suddenly, people weren’t buying our classified ads. They were advertising on sites like Kijiji and craigslist and then on Facebook and Google, and then on YouTube and Instagram and dozens of other smaller sites.

After the classifieds, the online competitors came for the local advertisements: the ads for local restaurants, car dealerships, movie theatres, department stores and school boards. In 2005, that local advertising brought in revenues of $1.2 billion for Canadian daily newspapers. By 2010, those revenues had collapsed to just $631 million, again a loss of just under 50%. By 2019, local advertising in daily newspapers brought in just $247 million — about a billion dollars less than in 2005.

The magazine industry faced its own parallel crisis. In 2005, magazine advertising revenues in Canada stood at $665 million. In 2019, magazines made just $116 million in ad revenues — a decline of 82%.

People in our industry used to joke that we had a licence to print money, and that was scarcely an exaggeration. After all, companies and individuals needed to advertise locally, and there was virtually no competition. Sure, the Edmonton Journal competed with the Edmonton Sun and newspapers competed with local radio and television. But we kept all that nice revenue in the local media family. Local media companies had natural local geographic monopolies, especially in one-newspaper communities such as Victoria, Regina or Fredericton. Frankly, no one imagined it would ever be any other way until the bottom fell out.

Digital platforms didn’t just offer cheaper, easier, more user-friendly ways to buy ads. They offered laser-focused micro-targeting. Google knew every time you searched for a product or used Gmail to talk to a friend about buying a new car or getting pregnant, and they could promise advertisers that they would send their ads to exactly the right people, and it was the same with Facebook. The company’s data-mining brain read all your posts and sent you ads based on your conversations and preferences. A newspaper had no way to tell advertisers if their print ads had been read or understood. Google and Facebook could effortlessly track clicks and engagement and tell advertisers whether their ads had landed.

Even once newspapers tried belatedly, sometimes clumsily, to get into the game with digital online ads of their own, they simply couldn’t offer the detailed demographic data and analysis that Google, Facebook and their successors could. That’s why my Instagram feed is clogged with ads for dog toys, shape wear and brassieres, and perhaps why YouTube suddenly and instantly started showing me ads for bed sheets after I complained in a cellphone call how much I hated changing the duvet cover.

Our Alexas, our Siris, our Google Homes and smartphones and browsers deliver up reams of real-time data that allow online advertisers to get their ads in front of just the right eyeballs. No newspaper or news site can possibly match that degree of sociological or demographic specificity.

The upshot? In 2006, Canada’s newspapers, both urban dailies and community weeklies, brought in total advertising revenues of about $3.9 billion. In 2019, Canadian newspapers had advertising revenues of just $1.4 billion. That’s a loss of $2.5 billion.

In the meantime, newspaper companies have been desperately trying to replace that lost revenue by doing everything from selling off their buildings to printing sponsored advertorial content that dresses up an ad to look misleadingly like a news story or even, in the case of the Toronto Star, trying to launch their own online casino.

I hope you’ll forgive me. I’ve been rattling off a lot of numbers, a lot of figures to sum up the fact that the revenue model on which the Canadian newspaper industry was based has collapsed. Those billions upon billions of dollars have been lost to digital platforms, and they are never coming back. I feel I need to stress this so that you can understand the true and daunting extent of the economic problem Bill S-225 is seeking to solve.

Just as papyrus made the clay tablet obsolete, just as Gutenberg’s printing press put thousands of monks in scriptoria out of work, the digital revolution has caused a cataclysmic shift in the economic models that long made newspapers, magazines and local television and radio stations solidly profitable, pushing them instead to the brink of failure.

It isn’t that people have stopped consuming the news. Far from it. A recent News Media Canada survey found that 86% of Canadians are regular readers of newspaper stories, whether they read them in print or whether they read them on platforms such as Twitter, Reddit and Facebook or via news aggregating services such as Google and Apple.

Here’s the catch: People don’t have to read their local paper or watch their local TV news anymore. You can fire up your phone and instantly access The Washington Post, The New York Times, the BBC, The Guardian or Le Monde diplomatique. Yes, local papers could suddenly share their stories with all of Canada and all the world, but they also suddenly had to compete with the very best international journalism for the eyes and attention of their readers.

Here’s the fact that I absolutely need you to understand: These platforms — Facebook, Twitter, Reddit, YouTube, Apple, Microsoft, Bing, Google and Yahoo — didn’t steal our stories. We gave them to them. We begged them to take our copy. We built buttons and links on our websites to make it easy to share our content online. We built our own newspaper-branded Facebook pages and started our own YouTube channels. Those of us in newsrooms attended endless seminars on how to create “search engine optimized” headlines, leads and tweets so that our stories would go viral, so that the websites would be more likely to pick them up and share them.

We tracked every click, praying that Google News or Apple News would make us trend. We — I notice I’m still saying “we” — believed that being shared on social media would be our salvation, that social media clicks would drive more eyeballs to our own websites and allow us to sell more ads and more subscriptions. We willingly, eagerly entered into what we thought was a mutually beneficial symbiotic relationship, giving our content away for free, trying to expand our readership, trying to compete for page views, without realizing that the relationship wasn’t symbiotic but parasitic and addictive. We got hooked on those social media clicks, and we just couldn’t quit them.

By the time newspaper companies started to think that maybe — just maybe — giving their copy away for free was not a sustainable business plan, it was too late. Many papers tried to put up paywalls to hide their content from anyone except subscribers, but digital-savvy readers, raised and trained to get their news for free, hated the new paywalls and found ingenious ways around them. Even when papers did successfully hide their content away, they lost readers and clicks — and advertisers, too.

Meantime, the appetite for good, solid, trustworthy journalism — journalism that reports on our communities and our politics — is as strong as ever. The problem is we don’t have a very good way to hire and pay the journalists who do that work.

This is not an overnight phenomenon. Instead, it has happened gradually, incrementally, over the course of three decades. A 2004 study from Ryerson University’s School of Journalism found that staffing levels at small- and medium-sized newspapers across the country fell by 30% between 1994 and 2004, and that was before the collapse in advertising revenues had even begun.

In 2013, the Canadian Media Guild reported that 10,000 media workers in Canada had lost their jobs in the preceding five years, including 6,000 people who worked for newspapers and magazines.

So it went, with each year bringing more cuts and more closures, until it was a wonder there were any reporters left at all. Of course, as the industry shed jobs, it became harder than ever to diversify homogenous newsrooms to better reflect the full multicultural reality of this country.

For years now, Canada’s newsrooms have been putting on a brave face. They’ve started to feel like false-front cities in a western town — facades without much behind them.

Here are some more numbers. Let me try to put things in perspective for you in another way. In 2012, Postmedia, one of the largest newspaper companies in the country, had total revenues of $832 million, including $515 million in revenues from the sale of print advertising. Under expenses for 2012, they listed staff compensation costs of about $350 million.

In 2020, by contrast, Postmedia reported total revenues of $508 million, with just $190 million from print advertising. That’s a drop of 40%. Their staff compensation costs, on the other hand, had fallen to $151 million, a drop of 57%.

I’ve described to you the buzz and the hum of the Edmonton Journal building when I started there 25 years ago. By the time I left in 2012 to join you here, most floors of the building were completely empty. It was a five-storey ghost town. On the fifth floor, a dozen or so dauntless, dedicated editorial staff huddled together in one corner of the once-bustling newsroom — wonderful young journalists working flat out to fill the pages of both the Edmonton Sun and the Edmonton Journal as well as to maintain two different live, 24-hour, seven-days-a-week websites.

I used to joke that we were a homeopathic newsroom — that we had been dissolved and diluted and somehow only got stronger and more potent in the process. In truth, the sorts of young people who somehow manage to hunt down and win jobs in journalism these days are so talented, so driven, so passionate that they are still managing to turn out extraordinary and important work; work that their communities need, in spite of all obstacles and in spite of all terrors. In a Darwinian survival-of-the-fittest world, successful young Canadian journalists today are as good as or, indeed, better than any I’ve ever known.

While print and broadcast journalists across Canada have been on the front lines of this pandemic, often risking their physical and mental health to tell us what’s happening, COVID-19 has taken a lethal toll on the journalism industry.

According to J-Source, a Canadian media research site, 67 media outlets across the country have closed during the first year of COVID-19, some temporarily, others permanently. That includes the closure of 29 newspapers, five radio stations and two television stations. In all, according to J-Source, 3,000 journalists in Canada lost their jobs this past year alone.

Now, lots of people in lots of industries have lost jobs this past year, and I’m not asking you to feel especially sorry for laid-off journalists. I do want you to consider the cost to our community, our democracy and our social contract when we lose newspapers, magazines and radio stations as trusted sources of reliable news, and what it means when we lose diverse voices to tell our stories.

I want you to consider the consequences for small- and medium-sized cities, in particular. It will always be possible to get the hottest political news and gossip from Washington, New York, Toronto or Ottawa. But who is going to tell the people in smaller cities what’s going on at their local school boards or city councils? Who’s going to report on the zoning decisions and the school closure debates, on the highway contracts and the child welfare case rates? Not Google, not Instagram.

That’s why I am so pleased and so grateful that Senator Carignan has started this essential discussion, and compelled us all to pay attention. It is also, alas, why I am so truly sorry to say that Bill S-225 is not the answer to these profound structural, cultural and economic problems.

Unfortunately, it is not going to work.

Bill S-225 is a beautiful, elegant tool like a surgeon’s scalpel. Unfortunately, given the mountain of challenges facing Canadian media, we might need something more like a jackhammer to tackle the problem.

The bill starts from the core assumption that the reason print media outlets have lost their revenues is because social media sites are stealing — copying — their stories and then monetizing them to sell ads.

But this is a fundamental misunderstanding of how digital advertising markets work. Sure, Facebook absorbs Canadian news stories as “content,” but that’s not how or why it makes its hundreds of millions of dollars in Canadian advertising. Facebook’s algorithm likes content that generates engagements, and a story about the Sault Ste. Marie City Council or the Kamloops-Thompson Board of Education or about a Senate debate on supplementary estimates isn’t sexy or juicy enough to do the job. Links to Canadian news stories do get shared on Facebook of course, and sometimes a big, breaking story or a story of a juicy scandal might get a lot of clicks. However, according to Facebook at least, news stories — very broadly defined — make up only about 5% of the content on the platform. Those news stories are not privileged by the algorithm, which would much rather show you that cute video your aunt shot of her cats than link to a story about Ottawa’s LRT construction delays.

The Nieman Lab, an American journalism think tank, did its own survey in 2017 of what content Facebook users see when they look at their so-called news feeds and found that 50% of users saw no news at all in their first ten posts, even with news defined in the most liberal way to include things such as celebrity gossip and sports scores. Since then, Facebook has actually taken steps to tweak its algorithm so people see less, not more, political news and commentary.

For their part, Google News and Apple News don’t post ads on their news sites at all — certainly not ads for local shops and businesses. These sites, along with TikTok, Instagram, Kijiji, LinkedIn, Pinterest and so many others simply don’t make their money by stealing and monetizing news stories. They do it by stealing advertisers, or to put it more fairly, perhaps, by outcompeting legacy media outlets. When social media platforms do post stories, they do it, for the most part, by way of hyperlinks — specialized URLs that take users directly to the websites of newspapers and TV and radio stations.

Bill S-225, it’s essential to understand, specifically exempts websites that share hyperlinks from its remuneration framework. That’s understandable. There is already a significant body of Canadian case law that says that sharing a link is not a republication. Indeed, the long-standing position in Canada is that a hyperlink is sort of just a technologically sophisticated form of citation, like a footnote. It points the reader towards a work, but is not itself a republication of that work and is hence not an infringement of copyright.

Instead, Bill S-225 would apply only in cases where digital platforms share an entire journalistic work or, to quote from the bill, “any substantial part thereof.” If you will allow me a digression, that phrase is the subject of wide judicial interpretation itself. “Substantial,” which is not defined in this bill, is not an objective but rather a subjective term. Under Canadian copyright law, taking an insubstantial portion is not copyright infringement. Even when a substantial portion is taken, the Copyright Act’s fair dealing provisions often arise.

Either way, honourable senators, most people rarely, if ever, cut and paste a whole article, or even a substantial part of an article, to a site like Facebook or Twitter. That’s just not how people share or consume content online. People post and share links. It’s just too much bother to cut and paste, especially when you can quickly share a link that takes people right to the original story.

Facebook’s design has an actual aversion to sharing large blocks of print. Indeed, it has character limitations that make it impossible to share something much longer than about 3,000 words as a Facebook post. So you can cut and paste a 750‑word column, but not a major feature story.

Twitter, the newsiest of all social media platforms, a platform built to share news, has even stricter limitations. You’re only allowed 280 characters. Again, the whole Twitter design is engineered to share hyperlinks, not entire articles. Apple News and Google News simply don’t share text beyond a short headline. They link right to the news organization’s original website, and any very brief introductory text they do use would likely qualify as a fair-dealing exception under Canadian copyright law.

The number of times the conditions would trigger remuneration under the terms of Bill S-225 would be tiny, and it would only come into effect when some user of a digital platform shared a work without a hyperlink. That happens so rarely that claiming royalties would reap almost no one any substantive economic benefit and could in no way come close to replacing the $2.5 billion lost annually in newspaper ad revenues.

Putting aside the very practical concern, how would Bill S-225 propose to work? The legislation seems to beg the question of whether Canadian journalists and journalistic organizations own the copyright to their work. While it is true that journalism and journalistic works are not specifically enumerated in the opening of the Copyright Act, Canadian jurisprudence has long held that journalism is covered as a literary or artistic work, which are areas protected by copyright.

Bill S-225 would seek to allow journalism organizations to seek remuneration by way of royalties whenever their work is republished by a digital platform. It would establish a right to claim royalties until the end of two years after the end of the calendar year in which the first publication of the journalistic work occurs. The proposal is closely modelled on that accepted by the European Union in 2019.

Transposing that EU model doesn’t quite work here. I am no expert in copyright and I am no lawyer, but I’ve spent the last few days speaking with many who are both. For them, Bill S-225 raises a red flag because, they say, it may actually undermine the long-standing copyright protections that Canadian journalists and publishers already have in Canadian law. They also have concerns that much of the meat of Bill S-225 is modelled on the European Union’s concept of new neighbouring rights — or droit voisin — a system that is not entirely analogous to the Canadian copyright paradigm. Bill S-225, incidentally, also takes its two-year remuneration term directly from the 2019 EU legislation.

In Canada, full copyright law, not just neighbouring rights, has traditionally applied to journalism and journalism organizations both print and broadcast. If you are a freelancer and retain the rights to your magazine story, for example, your copyright endures for 50 — and soon 70 — years after your death, so even your heirs can benefit. Copyright law in Canada provides that the first copyright owner of a work is its creator. However, there’s an employment carve-out: If you are employed expressly to produce copyright-protected works, such as news stories, then your employer owns the copyright. Thus, if you are a staff writer — an employee of a newspaper as I was for so long — then most likely the copyright belongs to the paper and endures for 50, and soon 70, years after publication. If anyone infringes on your copyright by copying, plagiarizing or distorting your work, the copyright holder can take civil action.

Several of the copyright experts I spoke with were worried that S-225 might unintentionally give Canadian journalism a lesser copyright protection than it currently enjoys. Why, after all, would you risk trading a copyright that endures for 50 or 70 years for remuneration or royalty rights that last only two years after the year of publication, especially when good investigative journalism, intriguing feature stories and funny columns are often shared on social media for years and years after publication?

Several of those experts I consulted raised additional concerns about section 26.3 (4) of the bill, which deals with freelancers. Freelancers are writers who are not employees. Right now that section reads:

For the purpose of subsection (1), if a journalist owns the copyright in a work and has granted a licence to a Canadian journalism organization to reproduce or publish that work, the Canadian journalism organization is deemed to own the copyright.

But that’s not how journalism copyright law for freelancers works in Canada. It is possible as a freelancer to assign all your rights in perpetuity to the magazine, newspaper or broadcaster who commissions your article or documentary. However, many of the freelance contracts give a magazine, say, first serial rights and allow the freelancer to retain the enduring copyright. For example, a couple of years ago I wrote a long feature story for Eighteen Bridges magazine. A year later, the Alberta Ministry of Education contacted me to ask if they could use my essay as part of a reading comprehension test on an English 30 diploma exam. Because I still held the copyright to my story, I was able to negotiate for payment for that reuse. But as it’s worded now, Bill S-225 would appear to strip freelancers of some of their existing rights for the benefit of publishers. That can’t be the logical or appropriate way to support the writers who actually create the works and the freelancers who are the most economically vulnerable precisely because they are not employees.

To go on: Bill S-225 suggests that Canadian journalism organizations should collect royalties for reuse by forming a copyright collective — a parallel, say, to the Playwrights Guild of Canada, or Access Copyright, which represents authors, or SOCAN, which represents 150,000 Canadian songwriters, music producers, music publishers, visual artists and crafters.

I think the comparison with SOCAN is, perhaps, instructive. SOCAN licences the sale of music to video game producers, nightclubs, fitness studios and theatre companies, and it tracks every single song played on a Canadian radio station or on digital streaming services such as Spotify, YouTube, Deezer and Apple Music. SOCAN does its work zealously. It has purchased sophisticated software to track which streaming services are streaming which Canadian songs. It counts not the fall of every sparrow but the play of every song — something that’s difficult, to be sure, but far easier than tracking every time someone’s cousin or uncle copies and pastes a news article into a Facebook post.

Fiscal year 2019 was a record-breaking year for SOCAN. The copyright collective collected $405 million in royalties that year, the most in its history. Now, $405 million is a lot of money, and that makes sense given how often Canadians listen to music. But SOCAN members who received royalties earned an average of only $67 from domestic digital royalties, up from $54 in 2018. Of course, that’s the average. The big stars whose songs are streamed the most got paid much more since SOCAN distributes its money based on individual plays. But an average of $67 is pretty much a pittance, and it should serve as a lesson in how a copyright collective for journalists might work in practice, were it ever brought into effect.

What apps like Google News and Apple News share most often are the stories from the big Canadian journalistic websites — The Globe and Mail, the Toronto Star, the Toronto Sun, the CBC, CTV, Global. You have to look long and hard to find a story from the Saskatoon StarPhoenix or The Telegram in St. John’s or L’Avantage Rimouski or the Penticton Western News.