This article originally appeared in the Globe and Mail.
By Peter Menzies, September 6, 2024
If the federal government is serious about building a long-term, sustainable framework for an independent news industry, it can start by supporting the integrity of subscriptions.
Full recognition of the value of purchased access to news, while just one of many policy shifts required for a healthy Canadian journalism industry has, to date, been less than stellar. If the government truly believes that journalism is a public good, Prime Minister Justin Trudeau and his cabinet colleagues need to concede that the current practice of allowing only 15 per cent of the cost of a subscription to be tax deductible is far from adequate. In our 2023 policy paper, “And now, the news,” Konrad von Finckenstein and I recommended that the deduction be increased to 100 per cent. The Globe and Mail editorial board followed by recommending a still-considerable 70 per cent, which would give a news subscription the same value under the tax code as a political party donation.
That number is certainly open for debate, but what shouldn’t be is the integrity of those subscriptions, once purchased. While publishers should be free to offer them in whatever packages they prefer – individual, household/family packs or bulk purchases – what should not be okay is the sharing of the passwords and usernames for those subscriptions without the publisher’s permission – not if you want a healthy news industry, that is.
And yet, Mr. Trudeau’s government has for years been fighting in court for the right to do just that. So far, it’s winning. A federal court ruling released on May 31 sided with the Attorney-General against Blacklock’s Reporter, an independent, subscription-based news platform that covers parliamentary affairs. In doing so, it ruled that a Parks Canada decision to share the password to a single Blacklock’s subscription with a number of employees was consistent with the broad value of the Copyright Act’s fair dealing exception for research. It further ruled that Parks Canada’s practice doesn’t amount to the circumvention of a technological protection measure.
University of Ottawa law professor Michael Geist called the ruling a “huge win” for copyright user rights in Canada, and from that perspective, there’s no reason to disagree with him.
On the other hand, Barry Sookman, senior counsel with McCarthy Tétrault LLP, said in his own analysis that the decision was “riddled with mistakes.”
“This is a case that cries out for appellate review,” he wrote. “But that is not all. The Government of Canada should take stock of the impacts of its legal positions on the news industry. It professes a desire to build a strong and independent newspaper industry. Yet, the government’s positions in court … all suggest the opposite.”
Both Dr. Geist and Mr. Sookman have expertise that I do not share, certainly not when it comes to legal analyses, the particulars of this case and copyright law.
But it should be obvious that it is bizarre for Mr. Trudeau’s government to be going to the barricades to defend what it interprets as copyright user rights in a manner that could undermine an industry it has attempted to sustain indirectly (such as via the journalism labour tax credit, and the Online News Act) and, directly, through the Heritage Department’s special measures for journalism and the Local Journalism Initiative.
Lobbyists for, and many backers of, the news business have made the case for years that, operating free from government control or influence, a healthy journalism industry is vital for liberal democracies to flourish. Mr. Trudeau himself has made that point on many occasions. And yet his government has doggedly fought a case that – regardless of its particulars – threatens the ability of that same industry to sustain itself through the acquisition and retention of subscribers.
Blacklock’s proprietors appear to have built a successful small business, and after recovering from their initial shock at losing their case, they have organized an appeal of the decision, which was filed with the Federal Court of Appeal last week. But there is no indication that any other news organizations are willing to go toe-to-toe with the government, which leaves Mr. Trudeau and his ministers to consider Mr. Sookman’s advice:
“It is high time the government decides whether it wants to win its suits with Blacklock’s at all costs and in the process create precedents which undermine news services and other cultural industries in Canada or do the right thing and support Canadian news publishing. A good start would be revisiting its legal argument and if this case is appealed, think about what it is really trying to accomplish.”
So far, there is no reason to believe they will do so.
Peter Menzies is a senior fellow with the Macdonald-Laurier Institute, a former publisher of the Calgary Herald and a previous vice-chair of the Canadian Radio-television and Telecommunications Commission (CRTC).
