As Canada’s Link Tax Said to Be Tabled Soon, US Publishers Call for a US Link Tax

The Canadian Heritage Minister says the link tax is going to be tabled soon. This as lobbying continues in the US.

Yesterday, we published an article about how Canadian Heritage Minister, Pablo Rodriguez, is signalling that the benefits of the link tax is going to be directed at profitable major players. As we all know, the link tax is a scheme to allow major publishers to basically freeload off of successful social media platforms and aggregators. This all the while to falsely claim that they are the victims of copyright infringement and other forms of unauthorized use of their work. The reality, of course, is that links, snippets, and thumbnails are fair dealing or fair use (depending on the country you are talking about).

The Heritage Minister has been saying for some time that the link tax will be based off of the Australian model. The Australian model, of course, was a complete disaster as it basically became a scheme to enrich Rupert Murdoch and his properties while leaving smaller players in the cold. If the Canadian government is intent on basing it off of the Australian model, it will inherently have all the flaws associated with the model it is based off of.

One of the big problems is defining what is a news source. Who qualifies for such a scheme in the first place? That question pretty much undermines the link tax from the start. On the one hand, you basically have a situation where the government is basically dictating who is and isn’t a journalist. That is a pretty big affront to a democracy because it will inherently affect the freedom of the press. Now, on the other hand, if the government takes an approach that is very hands off, then how does one protect the system from troll farms and misinformation campaigns? It’s a massive catch-22 on only one minor aspect to a link tax scheme.

Of course, if there is one thing we know about the Heritage Ministry, it’s that it’s a ministry that is basically overwhelmingly controlled by large corporations and lobbying. Public feedback from individuals is largely taken with a grain of salt and what is in the public interest is often relegated to a mere footnote. Over the years, other ministries have had to intervene and bring common sense into the debate. One such ministry is the Industry Ministry as an example. This has basically been a running theme I’ve always seen since I started my career as a tech journalist in 2005 and I have yet to see this change.

That theme is, of course, continuing, with the Heritage Minister saying that legislation is going to be forthcoming. From iPolitics:

The government will introduce legislation “as soon as possible” to help Canadian online news sites make money, Heritage Minister Pablo Rodriguez said Wednesday.

Rodriguez was speaking at a “Future of News” event organized by Canada 2020, an independent and progressive think tank.

Rodriguez says the online-news bill will level the playing field for online news outlets that compete with Meta (Facebook) and Google, which share and distribute news content.

While the platforms have invested in Canadian news outlets, Rodriguez said that “two dominant digital platforms ” take over 80 per cent of revenues.

The minister said he’s been consulting with stakeholders across the country.

“We need to design a legislation where government doesn’t decide who are the winners and the losers,” he said.

“We need a market-based system where the platforms will be negotiating with the news outlets (to) find a common solution. But we really have to stay at arm’s length, because it’s not the job of the government to decide who will benefit from this at all.”

Now, there is some misinformation in this excerpt alone. Generally speaking, news outlets don’t actually compete with Meta and Google because they are both completely different industries. What’s more is that Facebook and Google have actually greatly benefited the news sectors by giving them free traffic for years now. That traffic gives their sites more eyeballs and more eyeballs generally translates to more ad revenue and subscriptions. Further, it is actually a process to get a news site onto Google News and Facebook. Outlets actually have to (and do) put forth effort to make sure their news is featured on those platforms.

Further, if these news sites are so upset that their sites are being found in something like Google search results, they can simply use a robots.txt file on their site to get delisted. It’s minimal effort from a web administration side of things. Obviously, news outlets aren’t going to do that because they know about the extraordinary benefit a site has by being found via search engines like Google, so they won’t do that.

Of course, we know that this debate – namely on the side of big publishing and supporters of the link tax – has been pretty fact free for some time now. So, this warping of reality isn’t really all that surprising.

Still, for smaller players and outlets, it is concerning to see the Heritage Minister say that the link tax is still coming soon. After all, if there is still thinking that this is a viable solution, then it is clear that the Minister hasn’t thought this scheme through. It will clearly hurt smaller players one way or another because when the source your competing against is getting hundreds of thousands of dollars for free with no strings attached, it makes it that much more difficult to compete with something like that.

While all of this is going on in Canada, it seems that efforts are continuing south of the border in the US. It’s basically the same picture where you have media lobbyists spreading misinformation in an effort to try and get that same system of freeloading off of successful aggregators and social media platforms. From Editor and Publisher (warning: goatse Copyright picture):

Google and Facebook receive tremendous value from news publishers’ original content and provide limited return for publishers to reinvest in delivering high-quality journalism. Despite repeated pledges to support journalism, the platforms have failed to make any fundamental changes that would result in fair market value returned to news publishers.

But with several legislative proposals currently before Congress to address antitrust and other concerns, as well as an important initiative underway at the Copyright Office to strengthen publishers’ protections online, there is hope that the market imbalance can be restored.

We believe targeted findings by the Copyright Office regarding the “fair use” defense to payment and the existence of market imbalances, as well as changes to registration procedures and documents, would place American publishers on more equal footing. The Copyright Office could also study or offer input on other issues that would require changes in legislation, including clarifying the law around substantial takings, studying the need for sui generis protection, as well as guidance or action on the use of news content for artificial intelligence applications. While not required to resolve the fundamental marketplace imbalance issues addressed by the Journalism Competition & Preservation Act (see below), these recommendations would help clarify U.S. publishers’ copyright protections going forward.

In addition, Congress is currently considering a bipartisan bill, the Journalism Competition and Preservation Act (JCPA), that would allow news publishers to collectively negotiate with the online platforms for fair compensation. While not about copyright (it would not alter the fundamental balance of copyright or competition law), this bill would help address the most pressing threats to high-quality journalism while minimizing government intervention. The bill is being expanded to include a negotiating framework that will ensure small and local publishers are equitably compensated.

So, not really surprising to see just how bad some of these comments are and how removed from reality a good portion of it is. Obviously, there is no “market imbalance”. Trying to say that there is a market imbalance where Google is successful and your journalism outlet is not is like saying that there is a market imbalance because GM is making millions while your candle making shop is not. It just does not follow and trying to say that cars have headlights, therefore, you can’t compete really isn’t improving the case either.

Another take that is so far removed from reality, that it’s laughable, is the argument that implementing a link tax does not alter copyright in any way. Demanding payment is not only altering how copyright works, but it is completely reshaping it in a way that is unprecedented. Referencing material has never required payment in any other discipline. When you write an essay or a research paper, you aren’t required to fork over $20 because you cited another research paper in your paper. Yet, linking, which is a big way that material is referenced online, is seemingly being required to fork over cash depending on your implementation of using links. It’s like saying, “We’re not changing the landscape of the field out there, we’re just burying a pipe bomb in the soil and detonating it. So, no big deal.” What are you even talking about?

You really could spend hours just going through those two excerpts and finding bad takes and illogical idea’s. Still, so much about this debate going on in the US is disturbingly similar to what we’ve seen in Canada (and some of what we saw in Australia and Europe for that matter). If you want a separate source to detail just how bad “ancillary copyright” (America’s version of the link tax) is, you can read through what the Copia institute had to say about it when responding to the Copyright Office.

It’s depressing to see how much the link tax debate has basically become a North American thing. Based off of the same (and similar) lies and twisting and warping of reality, we are seeing the lobbying in action. What’s more, it’s going to cause a lot of people and small businesses to get hurt. Of course, lobbying in this debate reigns supreme over facts and reality. While Canada is further along in the process, the US is not all that far behind in all of this. It is basically bad news for everyone involved over the long term.

Drew Wilson on Twitter: @icecube85 and Facebook.



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