This post is part of a series of resources produced by our Student Research Fellows in Summer 2023. The content does not necessarily reflect the official position of the organization.

Governments in Canada and the United States have been considering two laws relating to Internet platforms and the press, to considerable debate. The Online News Act (ONA) in Canada and the Journalism Competition and Preservation Act (JCPA) in the United States attempt to respond to what has been called a journalism crisis— the declining stability and sustainability of news businesses globally.

The premise of both bills is to force select internet platforms that disseminate news content from publishers to compensate those publishers through what is often described as a “link tax,” which forces platforms to negotiate with news sources for access when they link to stories.

The JCPA is still under discussion in the United States, but the ONA passed earlier this summer. Following its passage, Meta and Google, the only two companies subject to the Canadian law, moved to strike access to Canadian news content on their platforms. Despite widespread opposition from the publishers and governments who passed the bill, the companies are not backing down. As of publication, the government is still in a standoff with the two Silicon Valley giants, representing what will likely be a critical juncture in the link tax as a media policy globally.

Why Link Taxes?

Prior to the Internet, newspapers derived significant revenue from advertising, alongside revenue from subscriptions and flyer inserts. That changed when the Internet arrived, and many advertisers left the print press for digital platforms. Internet companies represented a new form of competition, and publishers found themselves unable to keep up with the effectiveness of data-driven, microtargeted advertising offered by social media and search engines.

Newspapers’ advertising revenue has since declined substantially. Over time, newsrooms, particularly smaller, less consolidated newsrooms, have been shuttering, finding themselves unable to pay reporters to cover the news, much less turn a profit. The consequences are deeply problematic for liberal democracy, which relies on the ability of citizens to read and understand current events.

"Equitable access to knowledge for news consumers cannot be achieved in a media policy context where the proposed policy fails to address the information needs of news consuming publics."

The debate about journalism’s future has gone on for decades. But one particular policy approach to the issue has caught on in legislatures worldwide, centered on correcting what they perceive as an imbalance between platforms and the press through the assertion of property rights: the link tax.

The link tax’s supporting argument claims that as platforms have overtaken news publishers’ dominance over advertising, platforms have unfairly profited off publishers’ content by making it available to users of their services. “The logic runs as follows: By providing links to newspapers’ stories, Google and Facebook freeride on that content to attract readers to their platforms (and away from newspapers),” writes Ariel Katz, associate professor at the University of Toronto.

In 2022, over 20 organizations (including Library Futures) signed a letter to Congress describing the JCPA as “enormously problematic” and submitted a second letter expressing “disappointment” when the bill was reintroduced earlier this year. Others voiced similar concerns about link taxes to the U.S. Copyright Office. Critics say such proposals are harmful for the following reasons:

• Mistakenly fault platforms for being too successful while forgiving the lack of innovation from publishers
• Enable and amplify the spread of fake news‍
• Support the dominance of information monopolies on both ends of the transaction so the success of news publishers is dependent on digital platforms
• Undermine editorial independence from governments and/or tech companies through “platform capture”‍
• Disrupt the principles of an open Internet by introducing what is effectively a financial penalty for the use of selected hyperlinks 

Libraries & Ancillary Copyright

Both laws give rise to an ancillary (secondary) right to publishers regarding hyperlinking to webpages with their content, which frustrates a library’s mission of enabling access to knowledge. As Jennie Rose Halperin and Juliya Ziskina of Library Futures write in Techdirt, “The increasing scope of copyright, combined with the ease with which something falls under copyright protection, has resulted in a decrease in the availability of free information.” By restricting the use of intellectual property, copyright expansion makes it more difficult for libraries to fulfill their mission and respond to patrons’ information needs.

“If information is power, democracy – rule by the people – requires access to information for all,” says the International Federation of Library Association. “By providing this, libraries have an indispensable role in building and strengthening democracy around the world.” That value is also reflected in the American Library Association's Library Bill of Rights and the Canadian Federation of Library Associations’ Access to Information and Communication Technology position paper. Library Futures' own principles reflect this, too, with an emphasis on patron agency, users’ rights, and content self-determination.

The expansion of copyright in both Canada and the United States has posed a problem for libraries, whose principles stand at odds with unjust enclosures of the information commons. Just because the link tax does not directly apply to libraries (i.e., neither JCPA nor ONA require libraries to compensate publishers when using hyperlinks) does not mean the law is not a threat.

For example, through the creation of online bibliographies, libraries engage in the aggregation of hyperlinks. Although on a lesser and typically non-algorithmic scale, this act of hyperlink aggregation is functionally similar to corporate-commercial content users like Google or Meta. Libraries must remain vigilant against attempts to legislate hyperlinks, as both libraries and users need such rights to remain free from taxation.

Applying a library and information professional lens to the link tax debate demonstrates that it is a step in the wrong direction. In short, “A link and snippet tax would be the equivalent of adding a tax to every book you check out from a library.”

Link Taxes ≠ Equitable Access 

The introduction of quasi-property rights to essential Internet infrastructure encourages the enclosure of intellectual property systems– and the Internet itself. Instead of treating the intellectual work as property, link taxes give rise to claims of ownership to technical objects that facilitate access. This is what is most problematic about the link tax: it certifies the legitimacy of making use of hyperlinks and quotations as something that can elicit a supply-side expectation of compensation.

Equitable access to knowledge for news consumers cannot be achieved in a media policy context where the proposed policy fails to address the information needs of news consuming publics. Link taxes like the bills passed in Canada and contemplated in the United States do not do that; instead, they risk crystallizing problems within the market while restricting the free flow of information.

References

Access to information and communication technology. (2016, November 15). Canadian Federation of Library Associations. http://cfla-fcab.ca/en/guidelines-and-position-papers/access-to-information-and-communication-technology-ict/

American Civil Liberties Union, Authors Alliance, Center for Democracy & Technology, Chamber of Progress, Cityside Journalism Initiative, Coalition for Creativity, Common Cause, Computer & Communications Industry Association, Copia Institute, Creative Commons, Electronic Frontier Foundation, Embarcadero Media, Fight for the Future, Free Press Action, Jeff Jarvis, Internet Archive, Library Futures, Local Independent Online News Publishers, Lookout Local, Inc., National Association of Hispanic Publications, Public Knowledge, Re:Create, Richland Source, R Street Institute, & Wikimedia Foundation. (2023, June). 118th Congress JCPA Senate big tent letter. Public Knowledge. https://publicknowledge.org/policy/senate-group-letter-opposing-jcpa/

American Library Association. (2006, June 30). Library Bill of Rights. https://www-ala-org.eu1.proxy.openathens.net/advocacy/intfreedom/librarybill

Association of Research Libraries. (n.d.). Copyright timeline: A history of copyright in the United States. https://www.arl.org/copyright-timeline/

Association of Research Libraries, Authors Alliance, Center for Democracy & Technology, Chamber of Progress, Coalition for Creativity, Common Cause, Computer & Communications Industry Association, Consumer Reports, Creative Commons, Electronic Frontier Foundation, Fight for the Future, Free Press Action, Internet Archive, Library Futures, Local Independent Online News Publishers, Patreon, Public Knowledge, R Street Institute, Re:Create, Techdirt, & Wikimedia Foundation. (2022, September). JCPA joint Senate letter. Public Knowledge. https://publicknowledge.org/policy/group-letter-to-congress-opposing-jcpa/

Band, J. (2021). Library Copyright Alliance comments on publishers’ protection study. Library Copyright Alliance. https://alair.ala.org/handle/11213/17354

Bill C-18: An Act respecting online communications platforms that make news content available to persons in Canada. (2023). 44th Parliament, 1st session. https://www.parl.ca/legisinfo/en/bill/44-1/c-18

Bone, A. (2007). Revenue fluctuations for newspaper publishers. Service Industries Division, Statistics Canada, Government of Canada. https://www150.statcan.gc.ca/n1/en/pub/63f0002x/63f0002x2007051-eng.pdf?st=qc1Bj0KT 

Canadian Association of Research Libraries. (n.d.). Addressing the impacts of copyright term extension in Canada. https://www.carl-abrc.ca/influencing-policy/copyright/addressing-impacts-copyright-term-extension-canada/

Emmerich, W. (2022, December 21). The digital monopoly rules, and local journalism suffers. The Seattle Times. https://www.seattletimes.com/opinion/the-digital-monopoly-rules-and-local-journalism-suffers/

Estimated advertising and circulation revenue of the newspaper industry. (2021, June 29). Pew Research Center’s Journalism Project. https://www.pewresearch.org/journalism/chart/sotnm-newspapers-newspaper-industry-estimated-advertising-and-circulation-revenue/

Gasaway, L. N. (2000). Values conflict in the digital environment: Librarians versus copyright holders. Columbia-VLA Journal of Law & the Arts, 24, 115. https://heinonline.org/HOL/Page?handle=hein.journals/cjla24&id=125&div=&collection=

Geist, M. (2022, November 9). Independence lost: Why Bill C-18 undermines an independent press even as it purports to protect It. Michael Geist. https://www.michaelgeist.ca/2022/11/independence-lost-why-bill-c-18-undermines-an-independent-press-even-as-it-purports-to-protect-it/

Gil, R. (2022, September 7). Dear Ottawa, Google is not the enemy. Smith Business Insight. https://smith.queensu.ca/insight/content/Dear-Ottawa,-Google-is-Not-the-Enemy.php

Government of Canada. (2023, June 22). Online News Act receives royal assent. https://www.canada.ca/en/canadian-heritage/news/2023/06/online-news-act-receives-royal-assent.html

Halperin, J. R., & Ziskina, J. (2022, July 14). The Journalism Competition Preservation Act is lose-lose legislation. Techdirt. https://www.techdirt.com/2022/07/14/the-journalism-competition-preservation-act-is-lose-lose-legislation/

Harris, L. (2021, March 31). The journalism crisis across the world. Columbia Journalism Review. https://www.cjr.org/business_of_news/the-journalism-crisis-across-the-world.php

International Federation of Library Associations. (2018). Libraries, access to information and democracy. https://www.ifla.org/wp-content/uploads/2019/05/assets/hq/topics/libraries-development/documents/libraries_access_to_information_and_democracy.pdf

Journalism Competition and Preservation Act of 2023, S.1094, 118th Cong. (2023). https://www.congress.gov/bill/118th-congress/senate-bill/1094

Kancherla, K. S. (2020). The snippet tax: Enabling access to fake news? Indian Journal of Intellectual Property Law, 11, 223. https://heinonline.org/HOL/Page?handle=hein.journals/ijipl11&id=224&div=&collection=

Katz, A. (2023). Sedating democracy’s watchdogs: Critical reflections on Canada’s proposed Online News Act. The Columbia Journal of Law & the Arts, 46(3), Article 3. https://doi.org/10.52214/jla.v46i3.11234

Library Futures. (n.d.). Library Futures | Our Principles. https://libraryfutures.net/our-principles

Matzko, P. (2023). A link tax won’t save the newspaper industry: The Journalism Competition and Preservation Act will neither promote competition nor preserve newspapers. The Cato Institute. https://www.cato.org/policy-analysis/link-tax-wont-save-newspaper-industry

Radcliffe, D., & Wallace, R. (2021, October 7). Life at local newspapers in a turbulent era: Findings from a survey of more than 300 newsroom employees in the United States. Columbia Journalism Review. https://www.cjr.org/tow_center_reports/life-at-local-newspapers-in-a-turbulent-era-findings-from-a-survey-of-more-than-300-newsroom-employees-in-the-united-states.php

Routhier, P. M. (2021, December 15). Link taxes: A bad idea for journalism and the open iInternet. Internet Archive Blogs. https://blog.archive.org/2021/12/15/link-taxes-a-bad-idea-for-journalism-and-the-open-internet/

Shakil, I. (2023, June 29). Google to block news in Canada over law on paying publishers. Reuters. https://www.reuters.com/technology/google-block-news-links-canada-over-law-paying-publishers-statement-2023-06-29/

Usher, N. (2021). Chapter Two. From Media Capture to Platform Capture. In A. Schiffrin (Ed.), Media Capture: How Money, Digital Platforms, and Governments Control the News (pp. 30-45). New York Chichester, West Sussex: Columbia University Press. https://doi.org/10.7312/schi18882-003

Waldman, S. (2022, February 25). Our local-news situation is even worse than we think. Columbia Journalism Review. https://www.cjr.org/local_news/local_reporters_decline_coverage_density.php

About the Author

Spencer Izen (he/him) is a civil and digital liberties advocate and researcher studying at the University of British Columbia. He co-drafted the first student press protection legislation in Canada in 2021. For the past year, he has worked for the Freedom of Information and Privacy Association researching British Columbia’s public records regimes as socio-legal and socio-technical systems. Spencer recently became an affiliate at the Center for Information, Technology & Public Life at the University of North Carolina at Chapel Hill and is the Co-Champion of Free Expression for 2023.

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