Month: October 2021

The Institute for International Communications (IIC) annual meeting held recently in the UK (London, October 5-7) featured, among other topics, a “streaming video roundtable”, an informative discussion of the issues surrounding growth of the VOD sector in the current regulatory climate. I was fortunate enough to be able to be in the audience (virtually) for that panel. It featured a regulator, an academic researcher and two representatives from the content industry. Informed by a number of market studies recently conducted by the research firm Frontier Economics, the panel explored the economic drivers of local content production and the relationship between production, and government regulation of the video streaming sector. The studies document that sensible regulation can make a difference. Policies that promote inward investment and allow the creative juices of AV producers to flow provide a range of benefits to consumers, local economies and culture, domestic production facilities and artistic output. Heavy-handed regulation and imposition of legacy conditions on new streaming services is counter-productive in terms of achieving growth in local content production from streaming services. Read the full article here (Local Content Production and Sensible Regulation: New Studies Demonstrate the Close Relationship).

© Hugh Stephens, 2021

A couple of weeks ago I put up a blog posting looking at the history of copyright and news content over the past two hundred years or more. It discussed the longstanding question of who “owns” the news, and who should be compensated when news content is copied. This issue is not new but has become very topical in recent months and years because of the use of snippets of news content by digital platforms to attract and retain users on their services. In most instances the snippets (which encourage users to click on links) were not authorized or licensed. Given the parlous state of the print media, with advertising revenue streams drying up as ad dollars gravitate to digital platforms (the same platforms that are, in effect, monetizing the content produced by others), pressure has mounted from news publishers for governments to “do something” about the problem.

Various solutions have been proposed. The European solution has been to create an additional “neighbouring right” to give news content producers a supplementary, limited duration (two years from date of publication) right to license their material. France has been the most aggressive EU state in implementing the new provision, and just this past week it was announced that Facebook has reached agreement with a group of national and regional French newspapers to pay for content shared by Facebook users.  Australia played a game of chicken with Google and Facebook until both platforms blinked and suddenly found the means to reach licensing agreements with major Australian news publishers. Australia used the lever of competition law to bring the two gigantic digital platforms to heel. (For more details, see here and here).

In Canada, the newly-elected Liberal minority government proclaimed in its platform that within 100 days (of Parliament being recalled) it would introduce legislation that would “require digital platforms that generate revenue from the publication of news content to share a portion of their revenues with Canadian news outlets”. Across the Atlantic, the British government has recently (April 2021) established a Digital Markets Unit (DMU) within its Competition and Markets Authority. The DMU was tasked by the UK’s Digital Secretary to consider a possible code to govern the relationship between platforms and content providers, such as news publishers, although the impetus for the introduction of regulation in Britain is less than elsewhere, having been forestalled by pre-emptive actions taken by both Google and Facebook. The internet giants, seeing the writing on the wall, moved to head off a regulatory approach by reaching agreements with British publishers for payment for content in late 2020.

Until recently, the world’s largest media market globally, the United States, has been relatively unengaged in this process although legislation has been (re) introduced into Congress to provide US news providers with an exemption from anti-trust laws for a limited time so that they can negotiate collectively with digital platforms like Google and Facebook without running afoul of anti-competition laws. Known as the Journalism Competition and Preservation Act, it has bipartisan support, having being introduced by U.S. Senators Amy Klobuchar (D-MN) and John Kennedy (R-LA) and Representatives David Cicilline (D-RI) and Ken Buck (R-NY). That legislation has received two readings and been referred to the Senate Judicial Committee.

The process in the US has now taken a step further with the announcement on October 12 by the US Copyright Office (USCO) that it will be undertaking a “Study on Ancillary Copyright Protection for Publishers”.

The USCO, in its introduction, states that:

“At the request of Congress, the Copyright Office is undertaking a public study to evaluate the effectiveness of current copyright protections for publishers in the United States, with a focus on press publishers.”

Noting that the EU has brought in a neighbouring (or ancillary) right for news publishers, the announcement goes on to say that, “The Office will consider whether or not similar protections are warranted in the United States, as well as the potential scope, source, and appropriate beneficiaries of any such protections.”

A Federal Register notice seeks public input on a number of questions, and the Office will hold a public roundtable in early December.

The Congressional request came from Senators Thom Tillis (R-NC), Chris Coons (D-DE), John Cornyn (R-TX), Mazie Hirono (D-HI), Patrick Leahy (D-VT), and Amy Klobuchar (D-MN) who sent a letter to Register of Copyrights, Shira Perlmutter, requesting the Copyright Office study the viability of adding ancillary protections to U.S. copyright law that would require platform aggregators to pay publishers for excerpts of content they provide for others to view. The request was one of several copyright-related studies initiated by Congress over the past summer. In examining the ancillary copyright issue, the USCO states that it will consider;

“… the potential scope, source, and appropriate beneficiaries of any such protections. The Office will also consider how potential ancillary copyright protections might interact with current copyright law, looking at issues including the underlying rights of writers, photographers, and other authors; existing rights of publishers; and exceptions and limitations such as fair use.

Additionally, the Office will examine whether any hypothetical new protections might apply to publishing sectors other than news, the potential impact of such protections on users including news aggregators, and the interaction between ancillary copyright and the United States’ international treaty obligations.”

That’s a lot to take on.

The Federal Register notice provides the rationale for the study; the decline of the traditional news publishing business. Over the past decade employment in newspaper newsrooms has dropped by 40 percent and one in five newspapers in the US has closed. Meanwhile online news aggregators have grown exponentially to the point where they are now the preferred or initial source of news for a majority of digital news consumers. Noting that there already exist certain copyright protections for news publishers, such as copyright in the print edition as a whole or the website containing individual news articles, as well as individual journalistic works if written by staff writers or if rights have been assigned, the notice also notes the limitations on copyright, such as content that cannot be copyrighted (facts) as well as fair use.

There is already a form of additional protection for publishers that was frequently applied in the past in the US. This is the so-called “hot news” doctrine that emerged from the 1918 US Supreme Court case, International News Service v Associated Press (the INS case). The additional protections have some of the characteristics of ancillary copyright. To quote from the recent work, “Who Owns the New: A History of Copyright” (Will Slauter, Stanford University Press, 2019, p. 227);

“In INS, the court recognized…a ‘quasi-property’ in news that was entirely independent of copyright…(I)t could be enforced only against business competitors, not against members of the public. Although readers were free to discuss and share news, press agencies were not allowed to reproduce news gathered by a competitor until its ‘commercial value’ had passed”. This established the tort of misappropriation that became known as the “hot news doctrine”. In Slauter’s words, it protects organizations that collect time sensitive information from free riding by competitors. Why not use it to protect news sources from appropriation of their property by news aggregators? It’s not that simple.

This is the USCO’s take on INS (as outlined in the Federal Register notice);   

“Because International News Service was based on no-longer extant federal common law and pre-dated the 1976 Copyright Act and modern First Amendment jurisprudence, this tort’s continued viability is unclear… even if a hot news misappropriation claim could be brought against a news aggregator, it would face a significant hurdle in avoiding preemption by the Copyright Act”.

The notice then examines various models that are being implemented or studied in other jurisdictions with particular reference to the EU and Australian models. Coming to the point of the study, it requests input and comments on three issues;

“(i) The effectiveness of current protections for press publishers under U.S. law;

(ii) whether additional protections for press publishers are desirable and, if so, what the scope of any such protections should be; and

(iii) how any new protections for press publishers in the United States would relate to existing rights, exceptions and limitations, and international treaty obligations.”

Comments are due by November 26.

I am sure there will be plenty of response from various stakeholders, from news publishers to internet platforms. Hopefully the USCO study will bring the US more into alignment with what is happening elsewhere in the world with regard to “encouraging” digital news aggregators to find ways to compensate news producers for the content that they, the platforms, use to attract and retain users.

Given the increasing momentum that the study and public hearings will give to news publishers in their quest for compensation from aggregators for the use of their product, it is possible that just the process alone will be enough to bring publishers and aggregators together to strike deals. However, until the Journalism Competition and Preservation Act passes Congress and becomes law, content producers will be disadvantaged since they will not be able to negotiate with the large and powerful platforms as a collectivity owing to anti-trust laws. They run the risk of being “picked off” by individual deals offered by the aggregators, on their terms. It is time to pass that legislation.

Now that the process of reviewing the terms of copyright to deal with the uncompensated and unlicensed use of news content by internet aggregators is underway, you can expect this issue to move more to the front-burner in the US, as it has in several other countries. Whatever mechanism the US eventually chooses, it seems inevitable (to me) that some form of revenue-sharing through licensing of content by the aggregators from news content providers will be the end result. After all, if Google and Facebook can come to an arrangement with Rupert Murdoch in Australia, or with French publishers, or north of the border with a number of Canadian publishers, why not in their home market?

Of course, the precedent-setting nature of the payment agreements in Australia and France helps explain why the two platforms engaged in such protracted trench warfare with the governments and courts in those countries, fighting for every inch of territory. But in the end, it was self-defeating, and they waved the white flag. So, while I believe there will inevitably be a similar outcome in the US, just how, when and on what terms are still the big questions. The just-launched US Copyright Office study on ancillary copyright–and the public input and roundtable that will be part of it—are important parts of the process that will help shape the outcome. We should follow it closely.

© Hugh Stephens, 2021. All Rights Reserved.

These days it is not uncommon to see red paint splashed on the statue of some controversial historical figure, or even to have the statue defaced, vandalized or perhaps torn down from its pedestal. It has happened to  Christopher Columbus, Winston Churchill, Robert E. Lee, and Queen Victoria, to name just a few recent targets. Other statues of people who are not such household names have also been targeted. In Britain, the statue of Edward Colston, a 17^th century slave trader, was chucked into the River Avon. In the Washington, DC, the statue of Albert Pike, a Confederate officer and prominent Freemason, was torn down (Pike’s was the only statue to a Confederate officer in the US capital). One expects to see statues topple when political regimes change. Many of us will recall the fall from grace (and from his plinth) of Saddam Hussein when Iraq was liberated (briefly). Colonial figures are routinely replaced upon independence (you won’t find any statues of Cecil Rhodes in today’s South Africa, although surprisingly one endured on the campus of the University of Cape Town until 2015).

There is much debate about the rights and wrongs of defacing or toppling statues, especially when resulting from the unsanctioned actions of just a few individuals and not as the result of wider public consultation. A case can be made for removal or re-interpretation of monuments to figures from the past whose historical record may be not without blemish. A statue could be removed to a more suitable place, (like a museum), or have additional explanatory text added to contextualize it with respect to contemporary values. One aspect of the debate that seems to have been completely overlooked, however, is any consideration for the rights of the artist who created the statue in the first place. No-one would be prepared to allow protestors to throw red paint at or slash a portrait of a controversial historical figure in an art gallery. Why is it okay then to vandalize another form of art?

There are many reasons, some better than others, for removing and replacing statues. What some call “cancel culture”, others consider the righting of historical wrongs. Often, the interpretation of the contributions or failings of an individual honoured by a statue is not consistent across various groups in contemporary society. Christopher Columbus is a good example. Hailed by many as the “discoverer” of the New World, his “discovery” ultimately led to tragic consequences for the “discoverees”, the collapse of the Mayan and Inca Empires, the ravages of European diseases and the resultant decimation of native populations, the seizure of indigenous lands in North and South America and so on. It is understandable that, from the perspective of current indigenous groups, Columbus’ arrival is not exactly a cause for celebration. Statues of Columbus are not a particularly happy reminder of the last 500 years of history. On the other hand, if Columbus had not sighted Watling Island in the Bahamas on October 12, 1492, would the course of history have changed much? After all, John Cabot reached Newfoundland just five years later and many other explorers followed. Given the advances in maritime navigation at the time, it is hard to believe that the New World would not have been “discovered” by some other European navigator shortly after if Columbus had not made his epic voyage. Still, Columbus has become the physical embodiment of discovery, for better or for worse.

If Columbus has become a polarizing figure and the incarnation of “blame” for the conquest of the Americas by Europeans, so too has another explorer, Captain James Cook,  become controversial. Cook was a remarkable seaman. Born in Yorkshire in 1728 in modest circumstances, Cook joined the merchant navy as teenager, working on coal ships on Britain’s east coast. He did not join the Royal Navy until he was 27, entering as an Able Seaman. He had a talent for cartography and surveying and much of his early career involved mapping the coast of Newfoundland and the St. Lawrence River during the siege of Quebec. He was about as far from the model of an aristocratic British naval officer as one could find. Subsequently he went on to circumnavigate the globe, explore the South Pacific, Hawai’i and the coast of Australia, circumnavigate New Zealand, and explore the west coast of North America as far as Alaska. He was, in short, an explorer extraordinaire.

Because of his exploits, a number of statues of Cook exist around the world. There are several statues in Australia, one in Christchurch, New Zealand and another in Gisborne, in Hawai’i, Alaska, Victoria, BC (where yours truly is based) and in the UK, in both London and his hometown of Whitby. The full list can be found here.  It is fair to say that many of them are controversial because of Cook’s legacy of contact with native peoples, although Cook was never involved in the slave trade. (Cook was killed in an altercation with native Hawai’ians on February 14, 1779). As an example of his mixed legacy, the Cook statue in Sydney, Australia was defaced. At the one in Whitby, England a local guard of volunteers was mounted after the statue was covered in graffiti and listed as a target by a website called “Topple the Racists”. It is worth noting that the website does not advocate vandalizing or tearing down statues on the list. Rather it suggests that “It’s up to local communities to decide what statues they want in their local areas. We hope the map aids these much-needed dialogues. Taking down a statue could also include moving it to a museum, for example.”

The one in Gisborne, NZ, was defaced (“Black Lives Matter and so do Maori”) while the one on Victoria’s Inner Harbor was unceremoniously toppled and tossed into the drink by a group of demonstrators protesting Indian residential schools in Canada. Cook may have been a victim of circumstances as some of the crowd who had been protesting in front of the provincial legislature seemed determined to find a target for their wrath. At first they moved against a nearby statue of Queen Victoria but with police between them and the statue, they decided to target the Cook statue instead, pulling it down with ropes and throwing it into the harbour. Cook was defenceless. No-one stood up for him.

Not surprisingly, the toppling of the statue was not universally received with applause. Many citizens of Victoria objected to the decisions of a few as to what public art could be displayed, no matter how sympathetic they were to the underlying cause of the protest. Arguments can also be made that Cook was the wrong target. The historical record suggests that he both respected and was respected by the native leaders with whom he came into contact while exploring the west coast of what is now British Columbia. He certainly had nothing to do with Indian residential schools.

But I want to return to my point about the moral rights of the sculptor being completely ignored in the debate over the political correctness of attacking public works of art. The Cook statue in Victoria is a case in point. While there were many irate letters to the editor, as well as some supporting or at least professing to understand the reasons for the action, the rights of the sculptor were entirely missing from the debate. The statue torn down in Victoria was, in fact, a clone of the Cook statue in Whitby, England. Similar duplicates exist in Waimea, Hawai’i and Anchorage, Alaska. The one in Victoria was not even cast in bronze. It was a fiberglass copy of the original work created by noted Scottish sculptor John Tweed, known as the “British Rodin”. The copy itself was produced by Derek and Patricia Freeborn Ltd, a firm in Britain noted for making models and reproductions used in the film industry.

Tweed was a prolific sculptor who tended to produce stentorian images of military figures, standing tall and proud. He memorialized, among others, Sir Robert Clive, who was instrumental in establishing British rule in India and Lord Kitchener, the WW1 British Field Marshall, as well as James Cook and many, many others. Tweed died in 1933 so his work will be out of copyright, but what would he have said to see his creations treated as objects of scorn and derision?

There is a famous portrait of Cook displayed at the National Maritime Museum in Greenwich, painted in 1775 by Nathaniel Dance-Holland. It is the work on which most likenesses of Cook are based. No-one would think of defacing or damaging this work of art; why should a likeness of Cook—or any other historical figure– in another form be fair game for protestors?

Enough, I say. By all means protest, but do not destroy or damage works of art in the process. If protestors have no respect for the artist who created the work, at least think of the integrity of the art object.

Personally, I favour keeping our public art up to date, and reflective of contemporary society. That does not mean pulling down statues of people whose values are out of sync with today’s beliefs and mores, but instead either moving the work to a more appropriate location where it can be contextualized (such as a museum) or perhaps re-interpreting the person’s life and achievements with additional information. That also avoids desecration of someone’s creation and work, whether or not one agrees with or likes the subject.

Will Cook go back up to his plinth in Victoria harbour? At the moment, that is an open question.  Right now, it is a base without a statue, a piece of unfinished business that attracts more questions than answers. I would like to see James Cook’s likeness, modelled on Dance’s famous image, resume his stance overlooking Victoria harbour. Perhaps Cook could be accompanied by a statue of Maquinna, the chief of the Mowachaht people of Nootka Sound, the dynamic native leader with whom Cook met and negotiated on his arrival in 1778. Mind you, unlike Cook, Maquinna was a slave owner (see White Slaves of Maquinna: John R. Jewitt’s Narrative of Capture and Confinement at Nootka, written 1807, first published 1815). History is complex.

Sculptors are artists whose work is as entitled to respect as other forms of art, even if the object of that art falls out of favour. Of course, it is easier to remove a tyrant’s portrait than his statue, which I guess is why statues are chosen–for their permanency. Nonetheless, for those who wish to protest, do so in a way that respects the artist and encourages debate over interpretations of history, with appropriate actions to reflect new interpretations if they are widely shared. Unilaterally deciding to vandalize public art is inexcusable no matter who the target is.

© Hugh Stephens, 2021. All Rights Reserved. 

The issue of whether news publishers should receive compensation when their content is used by “others” (such as internet platforms, specifically Facebook and Google) has become a hot topic in a number of countries of late. It has arisen because of the near financial collapse of much of the print media, particularly newspapers and news magazines, as the bulk of advertising has gone online. The lion’s share of ad revenues now goes to the platforms that aggregate content rather than produce it themselves. Some shrug and say that just as Gutenberg’s printing press put scribes and illuminators of Bibles out of business, one cannot stop the march of technology. In their view, the old-fashioned news business will just have to adjust or go the way of the dodo.

Historical Challenges to News Publishing

It is a historical fact that news publishers have been challenged and required to adapt multiple times over the centuries as business practices and technology have evolved. Some fairly recent instances include the introduction of the telegraph, then radio and TV, and now the internet. Although in the past, publishers adapted and reached accommodations that enabled them to survive, one cannot help but wonder if this time they’ll be able to stay in business without legislation or regulation requiring compensation for use of their content. If we are no longer able to live in a world with a vibrant Fourth Estate as a result of the monopolization of advertising revenues by the major internet platforms, what will be the implications for our society and for democracy?

The Challenge Today: Different Responses in Different Countries

The issue has been hotly debated in Germany, Australia, France, Canada, the US and elsewhere, with different remedies coming forward. These range from the EU approach of granting the publishers a new “neighbouring right” over their content for a limited duration (two years from date of publication) to legislation in Australia that approaches the issue from the perspective of competition law, requiring specified quasi-monopoly platforms (Facebook, Google) to negotiate in good faith with publishers to pay for use of content, failing which government will arbitrate. The newly elected Trudeau government in Canada pledged in its party platform that it would “introduce legislation, within 100 days, that would require digital platforms that generate revenues from the publication of news content to share a portion of their revenues with Canadian news outlets”, based on the Australian model, while allowing publishers to work together to bargain collectively. To date, the results in various countries have been mixed. The question has also been raised (“Who Should Pay for the News?”) as to the impact the funding of news publications by internet platforms or government might have on journalistic integrity and editorial independence.

Google and Facebook have grudgingly come to the table and begun discussions with some publishers in some countries over payment for use of content. Threat of government action has been the catalyst to make these negotiations happen. While progress is being made in terms of indirectly flowing back to news publishers some of the advertising revenues that their content generates for the platforms by attracting and retaining users, this begs the question of what the news content providers are actually “selling”, and what they actually “own”. At the end of the day, who owns the news?

Who Actually “Owns” the News?

This is not a new issue; in fact it has been debated for centuries. A full and recent exposition of this question is found in the aptly named book, “Who Owns the News? A History of Copyright”, by Professor Will Slauter (Stanford University Press, 2019). In his book, Slauter takes readers back to Tudor and Stuart England, when the rights to publish certain forms of news (prices of commodities, deaths, news from abroad) were granted as licensed monopolies. Not surprisingly, others not awarded the prized licences argued that they too should be able to report the news, given the public’s interest. By the 18^th century in Britain, after the passage of the Statute of Anne in 1710, the battle over copyright and news was launched. The argument was made that those who had acquired the news through their own efforts and expense merited protection (a monopoly on the news they had so laboriously obtained) for a limited period of time to allow them to harvest the fruits of their labour. Their work was not original but deserved protection because of belief in the “sweat of the brow” doctrine. Copyright was one potential means to achieve this protection.

But there were many opposed to granting news monopolies, especially those who benefitted from the “free ride”. They argued that “news” is a public good, and the facts that constitute news cannot be protected. This reflects the legal position today; facts cannot be copyrighted. The 1886 Berne Convention, the first international copyright treaty, explicitly excluded “news of the day” from copyright protection, an exclusion maintained to this day in Berne’s revised 20^th century text (although what constitutes “news” can be debated). However, back in the 18^th century, the factual news of the day was not always readily available, and in many cases had to be obtained through considerable effort.

A Reward for “Breaking News”?

As an example, if Ruritania declares war on Grand Fenwick, that is a fact. But in earlier times, this fact only became known because a major paper, let’s call it the London Morning Standard, maintained a correspondent in the capital of one of those faraway places. That correspondent, on learning of the declaration of war, hired a coach and driver to take his dispatch to the nearest seaport, where it was entrusted to the captain of the fastest ship available. Upon arrival in England, the captain conveyed the news report to a despatch rider who rode post-haste to enable the Standard to break the news in its morning edition. The Standard had a scoop, but only for a few hours because when the evening and provincial papers came out, they simply rewrote or often simply copied the story from the Standard, sometimes with attribution, sometimes not. There is a vague analogy here to internet platforms profiting from the hard work of professional journalists and publishers without payment, while selling advertising against the “free” content.

One solution at the time might have involved extending copyright law to cover content in newspapers, although the Statute of Anne was conceived primarily for literary works. Despite action by some owners to gain copyright protection for newspaper or magazine content by entering editions at Stationer’s Hall (a requirement for copyright protection), most publishers freely reprinted content obtained from rival papers. The prevailing business practices did not support exclusivity. Almost all editors engaged in some form of copying (and took pride in their selection of what to copy).

Cut and Paste in the Newspaper Business

“Scissors and paste” remained a common practice in newspaper publishing in both Britain and the US through much of the 19^th century, but lack of attribution was considered by many to be plagiarism. Some editors got revenge by baiting copyists with false news. Slauter (pp.111-112) cites one example where the Courier of New York, whose carefully acquired news reports of the Russian victory in the Polish-Russian War of 1831 had been copied without attribution, struck back by sending a bogus version of their morning edition to the offices of their competitors claiming that the previous day’s news was erroneous and that in fact the Polish people had emerged victorious. Several papers fell for the bait, stopped press and printed editions announcing the Polish victory. But the victory was pyrrhic; the Courier’s editors were denounced for printing false news! Or was it “fake news”? Despite this gamesmanship, there was little interest in trying to copyright news content. However, by the late 19^th century, and the advent of the telegraph and press associations that led to pooling of content, attitudes began to change.

Changing Attitudes to Copying

Slauter recounts how by the early 20^th century in Britain, a series of court rulings had confirmed that newspaper articles could be protected by copyright but, as is the case today, a distinction was made between the facts of news (not protected) and the expression of those facts (subject to copyright protection). Attempts to establish a special, limited duration (18-48 hours) copyright protection for news were not successful although a Bill to this effect passed the Lords in 1900 but was not adopted by the House of Commons. In the 1911 Imperial Copyright Act, fair dealing was introduced allowing portions of copyrighted works to be reproduced for purposes of research, criticism, review or “newspaper summary”. In the US, with the formation of press associations, the thrust was to protect “exclusivity” in news through competition law. The US Supreme Court ruled it was unfair competition to use the exclusive content (hot news) of another agency until such time as the exclusivity was no longer commercially exploitable.

The Challenge of Radio

The advent of radio brought another challenge, and a struggle over who could control the news. The situation played out in different ways in different countries. In Britain, the BBC was granted a government charter and a broadcast monopoly (which lasted until 1972 in radio) but initially its ability to cover news was heavily restricted. Its news coverage had to be drawn from wire service copy and no news broadcasts were permitted before 7 p.m. in order to avoid competing with the newspapers for subscribers. As a public funded government monopoly, it did not compete with newspapers for advertising.

In the US, broadcasting remained in private hands (as it was initially in Britain), and did seek advertising dollars. While some newspaper publishers acquired broadcast licences, others did not. This set the stage for competing views of whether radio should be allowed to broadcast news. Originally, many broadcasters simply read newspaper headlines on the air (and remember, facts are not protected by copyright). Many newspapers tried to restrict what material broadcasters could use, thus beginning the so-called “press-radio war” of the 1930s. The two major US radio networks at the time, NBC and CBS, initially agreed to restrict news broadcasts to two 5 minute broadcasts a day, one no earlier than 9:30 am (to protect the morning papers) and one no earlier than 9 pm (to protect the evening dailies). The brief broadcasts were to whet the appetite of listeners to go out and buy papers. The networks also agreed to give up their own news gathering operations and instead to receive copy from Associated Press. However, the agreement (Biltmore Agreement of 1933) lasted less than two years before it began to fall apart primarily because independent radio stations refused to play the game. They decided to broadcast news at the time and in the format that suited their listeners and advertisers. News is an elusive commodity to corral.

News Reporting involves Creativity, Skill and Judgement

While attempts to monopolize the news were unsuccessful because of the generic nature of factual information, there is no question that news reporting can be protected as intellectual property. It is the essence of the fact/expression dichotomy in copyright. An investigative news report, carefully researched and written, perhaps illustrated with exclusive photos, is certainly the expression of what that news item is about—and is protectable by copyright. When the CBC recently sued the Conservative Party of Canada for using CBC television clips of interviews with Liberal Party leader Justin Trudeau to create political attack ads, the Federal Court recognized the CBC’s ownership of the clips. As I noted in a recent blog on this subject, the Court found that the broadcast incorporated “the artistic design, production services (lighting, camera work, audio, etc.) and journalistic decisions (i.e. the flow of discussions and the election and posing of questions) which are the skill and judgment of the CBC and their employees”, making it a creative work subject to protection even though what Justin Trudeau had said was a matter of public record. The fact that it held the copyright on the broadcast material did not lead to a successful outcome for the CBC, however, because the judge ruled that the Conservative Party’s use of the clips fell under fair dealing. Nonetheless, the ownership of the news material was not in doubt.

Some Key Questions

This brings us back to the questions posed in the title of this blog posting. Do publishers “own” news content, and if so, what exactly do they own? Should internet platforms that “scrape” content from publishing sites (headlines and short excerpts) be required to compensate the creators of the content? These are not easy questions to answer.

While it is by now well established that publishers, broadcasters and journalists can exercise copyright over news reports that involve creative expression, the separation of facts from expression is not always straightforward. What about a news headline? Does it just convey the facts or is it, as Agence France Presse (AFP) contended in its 2005 suit against Google, a creative expression capturing qualitatively the most important aspects of a story, painstakingly created. (The case was settled out of court, leading to a licensing agreement for AFP content). If a piece of content is protected by copyright, does reproduction of a snippet constitute fair use or fair dealing, or does the publication of the snippet reveal the essence of the content and undermine the publisher’s economic rights? Is the best solution to empower publishers with the creation of a new neighbouring right, as has been done in the EU, or is the most effective solution the application of competition law to ensure that the market power and economic dominance of the major platforms is constrained? And what about that thorny question of journalistic independence? If a major publication is taking money from, say, Google, will this influence its coverage of Google when it comes to anti-competitive practices, for example?

What is the Way Forward?

Each country has to find its way forward in a way that is compatible with international legal frameworks (for copyright and competition law) and treaty obligations, and which takes account of political realities and domestic politics. But the trend is clear; either the platforms find a way to strike deals with news publishers or governments will make it happen, one way or the other. In the struggle of the news industry to survive, various remedies have been proposed. Requiring giant, dominant internet platforms that aggregate and display news content to reach licensing deals with content providers is an important part of the answer. It is part of the continuum of the history of news, and who “owns” it.

© Hugh Stephens 2021. All Rights Reserved.

Coincidentally, as I was posting this blog, the US Copyright Office announced a “a public study at the request of Congress to evaluate current copyright protections for publishers. Among other issues, the Office will consider the effectiveness of publishers’ existing rights in news content, including under the provisions of title 17 of the U.S. Code, as well as other federal and state laws; whether additional protections are desirable or appropriate; the possible scope of any such new protections, including how their beneficiaries could be defined; and how any such protections would interact with existing rights, exceptions and limitations, and international treaty obligations.” Public input is sought on a number of questions. Comments are due on or before November 26, 2021.

Unabashed booster of—and apologist for—Section 230 of the 1996 Communications Decency Act (CDA), Eric Goldman, recently published an encomium “to help Canadians understand a crucial US law that’s become a flashpoint for heated discussions” (according to the introduction to Goldman’s article distributed by the Santa Clara University School of Law). It was initially released through the Centre for International Governance Innovation (CIGI), a prominent Canadian think-tank at the University of Waterloo. Goldman is Associate Dean and Co-Director of the High Tech Law Institute at the university, which is located in the heart of Silicon Valley). Thanks to Goldman, we poor benighted Canadians can finally begin to fully comprehend how fortunate we are that the new NAFTA (USMCA, called CUSMA in Canada) requires each country—that is the US, Canada and Mexico—to maintain legal rules that, in Goldman’s words, “resemble Section 230”. That provision in CUSMA is Article 19.17. More on the CUSMA treaty language below. But first….

What is Section 230?

Section 230 of the CDA provides that internet intermediaries (internet platforms, websites, social media services) are not liable in civil law for content posted by users. The law was originally passed in order to provide platforms with the means to control illegal or harmful content. As I wrote in an earlier blog post (“Section 230 is Dangerous–Keep it Out of Trade Negotiations”), the problem arose because an online website, Prodigy (no longer in existence) was successfully sued because it had not moderated an online posting put up by a user that allegedly defamed the plaintiff. The court considered that because Prodigy had the ability to moderate the content and did so on occasion, (but not in this case), it was a “publisher” (like a newspaper) and was thus liable for defamation. On the other hand, other websites that made absolutely no attempt to moderate content on their platforms, whether the content was objectionable or not, were considered “distributors” and were off the hook. There was thus no incentive for online platforms to lift a finger to remove obscene, defamatory or content that would be objectionable to children, one of the early concerns about the spread of online content.

The solution was Section 230, which provided, in the words of (now Senator) Rod Wyden, one of its architects, both a sword and a shield. The sword was the ability to take down objectionable content; the shield was immunity from prosecution for doing so. However, over the years its intent has become badly distorted through a series of rulings by various US courts to the point where today the legislation is interpreted as a blanket exemption from responsibility for digital platforms for any content posted by users.

Abuses enabled by Section 230

The misapplication of Section 230 is largely responsible for a general lack of accountability on the part of internet intermediaries for any content that they host, distribute or enable, allowing them to refuse to take action against user-generated abuses. This has led to a litany of abuses without legal remedy against the platforms that turn a blind eye to, enable or even promote, harmful content such as sexual exploitation of children, illegal gambling, false and harmful information, revenge porn, hate speech and so on. It is so wide-sweeping that it has allowed services like AirBNB to thumb its nose at municipalities seeking to enforce bylaws against temporary rentals because the illegal listings were posted by users. (There are limited exceptions to platform immunity under Section 230, namely copyright infringement and, since passage of the SESTA/FOSTA legislation in 2018, sex trafficking, a carve out vigorously opposed by most of Silicon Valley).

Tech platforms love Section 230, as do those who use the content to abuse others, promote illegal activities or spread conspiracy theories. Responsible content producers would like to see some accountability on the part of the platforms. Governments too are grappling with the issue of how to prevent the internet from becoming a law-free zone and to hold businesses that profit from user-generated content to account for the content they distribute and promote.

Because of the many abuses, Section 230 has come under increasing scrutiny in the US. Ironically, when it came under attack by the Trump Administration, it was not because of lack of content moderation by the platforms, but rather because they had—finally and under extreme provocation owing to the proclivity of Trump and his supporters to stretch the truth—exercised some control over the content propagated through their services. This infuriated Trump supporters who accused the platforms of political bias and threatened to bring changes to Section 230. As I commented at the time, (“Reforming Section 230 is the Right Idea—But Not When Done in the Wrong Way for the Wrong Reasons”),

“Trump has decided to use Section 230 in order to take personal revenge on Twitter, not to reform it or to address the fundamental issues inherent in the abuse of its immunity provisions by internet intermediaries who have used it to avoid taking down clearly harmful content. By making this allegedly about “silencing conservative voices”, Trump has in effect hijacked the issue of Section 230 reform.”

Of course it didn’t happen, and for several months now we have all been spared the daily torrent of personal, misspelled, vindictive and inaccurate tweets from the former president. For now, Section 230 in the US remains unchanged.

Goldman’s “Five Things to Know”

However, Goldman and his Canadian fellow-cyberlibertarians such as Michael Geist at the University of Ottawa are big fans of Section 230. During the CUSMA negotiations, Geist joined with a number of American academics to write a letter to the chief trade negotiators of the three countries urging the inclusion of a Section 230 provision in the Agreement. He also publicly urged Canadian negotiators to cave in and give the US “a win” on this point. For Goldman and Geist and others of their ilk, Section 230 is the foundation of the internet, enabling free speech, competition, innovation, democracy and more. In his panegyric to Section 230, written for Canadians, Goldman cited “Five Things to know about Section 230”. These are;

1. Internet Exceptionalism and Section 230
2. Section 230 Enhances the First Amendment
3. Section 230 Enhances Competition
4. Section 230 is the Law in Canada (But Not Really)
5. Gutting Section 230 Won’t Make the Internet Better.

Let’s examine these assertions and deconstruct the arguments just a bit.

Internet Exceptionalism

With regard to internet exceptionalism, Goldman argues that although the internet is treated differently from and more favourably than other media, Congress got it right when it passed Section 230. He is happy to see the laws governing libel, defamation, hate speech and the other checks and balances that society has imposed on those who are granted the privilege to publish and disseminate information suspended when it comes to the internet. It all seems to hearken back to John Perry Barlow’s 1996 “Declaration of the Independence of Cyberspace”, the mantra of the Electronic Freedom Foundation, a collection of bilious assertions that the internet is beyond the regulations of governments and not subject to national laws.

The First Amendment

Does Section 230 enhance the First Amendment, the “free speech” provision in the Constitution of the United States? First, we have to ask, “does the First Amendment put any limits on free speech?”  The answer is, “of course it does.” The First Amendment does not protect a number of forms of speech, such as obscenity, defamation, perjury, blackmail, incitement to unlawful action, and true threats. The courts have an important role in enforcing these reasonable limitations, but according to Goldman, Section 230 contains “important procedural advantages” that allow courts to dismiss lawsuits over third party lawsuits quickly and relatively cheaply. Put another way, Section 230 hobbles the courts from exercising their responsibility to ensure that free speech is exercised in a way that does not harm others.

Section 230 and Internet Competition

Does Section 230 enhance competition? In Goldman’s upside-down world it does because it keeps the door open to new entrants who don’t have to worry about investing resources in anything as wasteful as content moderation. And we have the proof that this policy increases competition, right? I mean, look at the robust competition that Facebook and Google have to deal with. Or did I miss something?

Is Section 230 the Law in Canada?

According to Goldman, Section 230 is sort of the law in Canada. This is because the new NAFTA (which I will call USMCA/CUSMA hereafter) contains Article 19.17 that says, in part;

“…no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information”.

According to Goldman, “when Canada ratified CUSMA it committed to providing Section 230-like immunity against internet service liability for third party content”.

However, in USMCA/CUSMA there is an important footnote that reads;

“a Party may comply with this Article (19.17) through its laws, regulations or application of existing legal doctrines as applied through judicial decisions”.

In other words, Canadian case law will continue to apply and there is no explicit requirement to create safe harbours in Canada for interactive service providers under this provision. I discussed this in detail at the time in a blog posting labelled “Did Canada get “Section 230” Shoved Down its Throat in the USMCA?”

Goldman argues that Section 230 is the law in Canada but, with respect, that is a highly debatable claim. It’s a brave move for a non-legal practitioner to challenge a Dean of Law at a prominent university on a point of law but even little ol’me knows that a law is not a law unless it has been enacted into legislation. In Canada that is done by an Act of Parliament. True, Canada ratified the USMCA/CUSMA and, as part of the process of so doing, introduced a package of legislative amendments (Canada–United States–Mexico Agreement Implementation Act) to effect changes to various Canadian laws as required by the CUSMA treaty. For example, as part of this legislative package, there were amendments to a variety of statutes ranging from the Fertilizers Act to the Copyright Act and Special Import Measures Act to the Customs Tariff.  But were there any legislative amendments related to Article 19.17 of CUSMA? There were not. There is no new law in Canada establishing Section 230-like immunities for internet platforms—thankfully.  Secondary liability continues to apply in Canada as I discussed in greater detail in here (Will Article 19.17 of the USMCA/CUSMA Influence Canadian Court Proceedings? (The Long—or Short?—Arm of Section 230).

Canada’s “commitment” in the CUSMA was carefully worded, preserving maximum flexibility for Canadian legislators and legal practitioners. I like to think that this was not an accident but by design and is a credit to the Canadian negotiating team who resisted misplaced US demands to “sign on” to Section 230.

Will Changing (“Gutting”) Section 230 Improve the internet?

Goldman argues that removing the dangerous parts of Section 230 will not improve the internet. In his view, since people have been nasty to each other for centuries, changing Section 230 to put the onus on the platforms that disseminate this personal bile won’t change anything. Yet because of the ugly side of society, we have laws to restrain this kind of behaviour in the offline world. We have laws to protect innocent victims. We impose reasonable restraints on unfettered freedom of expression and dissemination of libellous, defamatory and obscene materials everywhere—except on the internet. Goldman would like to keep it that way. He states that “Section 230 reform will accelerate the end of the Web 2.0 era”. This, apparently, will lead to a predomination of “privileged voices” and will exclude “niche non-majoritarian interests” (like those people who spread misinformation, conspiracy theories and indulge in vile personal attacks). So, yes, Professor, changing Section 230 will improve discourse on the internet.

Section 230 in the US

Apart from the attacks on Section 230 by Donald Trump and his acolytes (because the platforms finally exercised a modicum of content moderation), there have been wide criticisms of this legislation because of how it has enabled online abuse. In fact, it almost didn’t make it into the USMCA, since Nancy Pelosi and the Democrats finally woke up to what they were supporting. Pelosi tried to get the Trump Administration to drop Article 19.17 as part of the last-minute deal-making with Congress to get approval of the Agreement, but it was too late in the process. However, the Democrats did succeed in getting a statement from the hi-tech industry acknowledging that inclusion of Article 19.17 did not prevent the US from amending Section 230 in future. Advocates of Section 230 were hoping that its inclusion in the USMCA meant that it would be “baked in” forever and could not be touched by Congress. Given the tepid support in Congress for Section 230, Goldman is right to conclude that even if Canada did not abide by Article 19.17 by passing future legislation that negated it, the US would be most unlikely to object. In fact, he admitted as much in a podcast with Michael Geist that I wrote about earlier this year when he said, with respect to Congressional intentions to modify Section 230 despite Article 19.17 of the USMCA;

“Congress will absolutely blast forward with efforts to tinker with Section 230 even if that would also contravene the USMCA…I don’t know who really plans to abide by it, and if no-one plans to abide by it, I don’t understand what the point was”.

The Future of Section 230

How true. So why the primer on Section 230 just for Canadians? It is not part of the corpus of Canadian law, it is an outdated provision that is in serious need of revision in its homeland, the US, and it is not going to constrain the Canadian government from holding internet platforms responsible for online harms that they distribute if they fail to takedown such material when notified. Eric Goldman, Michael Geist and their friends in the Electronic Frontier Foundation (EFF) can continue to beat the Section 230 drum, but that drumbeat is sounding increasingly hollow, in Canada as in the US. Let Section 230 stay where it is in Canada, effectively buried.

© Hugh Stephens, 2021. All Rights Reserved.