A premature copyright objection from the Parliamentary Press Gallery

Earlier today, the 300 or so members of Canada’s Parliamentary Press Gallery received the following notice in their e-mail inboxes:

CANADIAN COPYRIGHT LAWS

 Ottawa, Ontario

October 9, 2014

The Canadian Parliamentary Press Gallery is troubled by reports the government is considering an exception to Canadian copyright laws that would give parties free reign in using news content for political advertisements.

Journalists report facts and balance them with context to ensure their stories are fair. Political ads, particularly during election campaigns, are by nature one-sided. Giving political parties the ability to selectively use news stories runs counter to the neutrality we strive to provide to Canadians every day.

The proposal is not yet formal. We await further details.

Laura Payton
President, Canadian Parliamentary Press Gallery

As a member of the Gallery (and a former member of its board of directors), I believe it is a premature to be issuing a statement. Here’s why:

1. No legislation or formal proposal has been made by the government.

Gallery President Laura Payton (Laura, who now works at CBC, and I were colleagues  in not one but two Parliament Hill newsrooms, CTV and Sun Media.) notes, “the proposal is not yet formal”.  She issued this statement after being asked by several reporters who were doing stories on this issue what she, as president of the press gallery thought about these leaked documents.  The fact that they are leaked documents is an important factor. Documents are rarely “leaked” just because the leaker thought it would be a good thing for Canadians to read about the leaked material. No. The ‘leaker’ almost always has a motive. I do not know the ‘leaker” in this case and therefore I — and the board of the Press Gallery, presumably — should be cautious about any speculation. But we do know that the Conservative Party of Canada has issued several fundraising letters recently in which it points at the “media party” on Parliament Hill as its enemy. I may be overly suspicious or cynical but a statement issued by the Press Gallery president suggesting Parliament Hill journalists are “troubled” by the something the Harper government might be doing feeds right into the narrative the Conservative Party is using to help raise money. I believe we should not make it so easy for any political party to use our actions as journalists to raise money.

Second – and more importantly — while it’s great fodder for reporters, pundits, journalism professors, voters, and politicians to argue about, organizations that believe they have some sort of institutional responsibility here (and, as I will argue in a minute, the Press Gallery has no institutional responsibility here) should refrain from commenting on rumoured legislation precisely because it is a rumour. Whether the Gallery and its president endorses or opposes this rumoured legislation is beside the point. What is very much at issue here is that there is no formal proposal. NGOs and politicians tell journalists all the time that they will not comment on “hypotheticals” and for good reason. A comment on a “hypothetical” sets up a situation where a politician or an NGO has to change his/her/its position when the variables of a hypothetical situation change. Today’s outrage, then, might become tomorrow’s celebration and the credibility and reliability of the organization/individual that had to do the flip-flop is compromised. Similiarly here, the Parliamentary Press Gallery has staked out a position on a ‘hypothetical’. It should have wait until the govenrment makes a formal proposal. But even then …

2. The Parliamentary Press Gallery has no role or stake in copyright discussions

The constitution of Canada’s Parliamentary Press Gallery does not expressly set out any objectives or “reasons for being” for the organization but, as a former director, I feel confident in suggesting that its membership — the 300 or so journalists who work on or near Parliament Hill every day — feel that the Gallery’s first and only role is to facilitate, co-ordinate, and assist its members as they go about the job of  “reporting, interpreting or editing parliamentary or federal government news, and who are assigned to Ottawa on a continuing basis by one or more newspapers, radio or television stations or systems, major recognized news services or magazines which regularly publish or broadcast news of Canadian Parliament and Government affairs and who require the use of Gallery facilities to fulfil their functions.” (See Section 4 in our constitution)  Nothing in the rumoured changes to Canada’s copyright laws would appear to impact on any of that. What may be at stake is a property right dispute. And the vast majority of gallery members do not have any property rights at stake here. I’ve worked for the Globe and Mail, the National Post, CTV, Global, Canwest-now-Postmedia, and now Sun and it’s the same everywhere: The content under my byline is owned by my employer. It is their content. Those corporations have an interest in how and where content they own is used. I and most of my Gallery colleagues have no claim to it. So if the government is contemplating copyright changes,  our collective employers may have an issue. But, aside, I assume, from gallery members who are freelancers and might hold some copyright to their work, most gallery members do not have a “rights” issue here.

And, let’s also remember that, so far as “rights holders” are concerned, Canada’s Parliamentary Press Gallery includes employees of CBC as well as China’s state-owned media Xinhua News Agency; it includes members who work for Rabble.ca but also those who work for billionaire Michael Bloomberg; it includes journalists from the Wall Street Journal alongside those who work for Russia’s ITAR-TASS and the Vietnam News Agency. We are a diverse group. A statement issued on behalf of such a diverse group of gallery members is almost certain to contain dissenters (This post is evidence of that).

Payton used her own own good judgement before issuing this statement and did so after talking to some of the directors on her board  (The Gallery’s directors, incidentally, are all Parliament Hill journalists who volunteer their time and who do very good and often thankless work to preserve and protect the rights of journalists working on the Parliamentary Precinct.)

That said — and Xinhua, TASS notwithstanding — there is likely one motherhood issue that all or 90% of gallery members would wholeheartedly defence that that is freedom of speech. University of Ottawa scholar Michael Geist and Gallery member Paul Wells have written that, if you consider it in a certain way, the government’s rumoured changes enhance, protect, or codify free speech rights. If a government — any government — proposes legislation that seeks to enhance speech rights, then surely all journalists around the world can agree that that is a universal good. (And let me point out that both Geist and Wells have subsequently pointed out that, based on the leaked documents we have, the government’s proposals and arguments are, at the very least, to so narrow that it would be hard for the Conservatives to claim a free speech defence)

Copyright shouldn’t be used to stifle free speech but gov plan wrongly has 2 sets of rights: 1 for politicians & 1 for rest of us

— Michael Geist (@mgeist) October 9, 2014

But from an organizational or institutional perspective, the Parliamentary Press Gallery has no interest in a copyright issue simply because neither it nor most of its members hold copyright to any of the work at the heart of this dispute. It is the employers of most Parliament Hill journalists who are the rights holders and they are certainly capable of advancing their own arguments the matter.

But in any event: Gallery members should be encourage to report vigourously and actively about this story. But the Gallery itself would do its membership better service by withholding its opinion at least until the government tables a formal proposal and then, it should only offer an opinion on the free speech aspects of the bill and leave the copyright issues to other groups.