Late last month, David stood up to Goliath. Blacklock’s Reporter, a small mom-and-pop paywall-protected digital journal covering the federal government, filed an appeal of the Federal Court’s decision in Blacklock’s Reporter v Canada (Attorney General). Ottawa has aggressively defended the case, but if it wants to follow its own policy pronouncements and truly support independent journalism in this country it should settle with Blacklock’s.

This case is critical to the effective functioning of independent, non-subsidized journalism (and other paywall-protected content industries) in Canada. While the controversial court decision might be overturned, it may take years. Meanwhile, independent news media in Canada is facing an existential financial crisis owing to the migration of advertising to online platforms.

The government’s response has been to throw money at the media sector through subsidies of various kinds, including tax credits to “Qualified Canadian Journalism Organizations,” the further extension of the Department of Canadian Heritage-funded Local Journalism Initiative, a $100 million annual fund to be provided by Google, and, most recently, a requirement for online streamers to direct some of the levy that will be imposed on them to the Independent Local News Fund (for news broadcasters). It could reach the point where almost 50 cents on the dollar of newsroom salaries are beholden to government or government-engineered support of one sort or another.

This raises concerns about the future of independent Canadian journalism and its ability to hold government to account. The antidote is the ability to hold one’s own in the free market by producing a product that consumers want and are willing to pay for.

Media that are successfully making the digital transition put their content behind a paywall and grant access through a password after payment. As any subscriber to Netflix knows, passwords are not to be shared with non-subscribers.

Yet this is exactly what the Government of Canada did; in the hundreds. So far, it has shamelessly gotten away with it.

The Blacklock’s case

The Federal Court decision issued in May held that the wide sharing of an individual Blacklock’s subscription password within Parks Canada by an employee of that agency did not constitute copyright infringement. The judge ruled that because that individual password had been legally obtained and used for research purposes, the actions of the employee constituted “fair dealing,” a limitation on copyright protection under the Copyright Act. This was despite the fact the password was widely shared with a number of employees both inside Parks Canada and across other government agencies.

The ruling has called into question the role of passwords in protecting proprietary content as well as the section of the law that prohibits the circumvention of a digital lock, referred to in the Copyright Act as a “technological protection measure” (TPM). TPMs are the mechanism that allows content businesses to function in the digital age. Passwords are a common feature of digital access.

Legal experts are divided on whether the Court got this decision right. Much depends on the circumstances of this case, which dates back more than a decade. As with any appeal, there is no certainty to the outcome. But while the decision may turn on some fine legal points, the essence of the issue is crystal clear to me.

Does the Government of Canada truly believe that it is in the public interest to continue to fight tooth and nail to deny Blacklock’s the reasonable licensing fees they are seeking for an institutional subscription?

Does it believe the best way to support Canadian journalism and a free and healthy media sector in this country is to undermine the digital business model used by journals adapting to the new realities?

Does it want to give people free unfettered access to paywall-protected content because maybe, just maybe, it can win a case against a small business?

Ottawa in its various incarnations spends millions on media relations annually, counting the costs of communications offices in various government departments and agencies, along with their research, polling, and institutional subscriptions to a range of news sources. Why then stiff a small news provider by refusing to pay for content as any other major organization would be expected to do?

Why would the federal government roll out its big legal cannons to avoid paying a market-rate subscription for a product that some of its employees need access to as part of their job? From the perspective of policy consistency, this makes absolutely no sense.

According to Blacklock’s, it has already spent more than half a million scarce dollars fighting this case. The appeal, which is still in its early stages, will bring further costs. The outcome—defending the integrity of the paywall system for content—is important, but even under the best scenario, a final decision is years away. To dispel the climate of doubt over the validity of passwords as a device to protect proprietorial content, and to do the “right thing” in terms of walking the talk on supporting the media in Canada, the federal government, through the attorney general, should settle this case—today.

This would mean climbing down from an unsustainable ethical and business position. It would mean paying Blacklock’s the institutional subscription fee it is owed and would involve compensating the media outlet for the court costs it has incurred to date. More than that, the government should issue a formal apology for having resisted doing the obvious and right thing for so many years

Finally, for the sake of Blacklock’s and for all other businesses that depend on paywalls and password protection, the attorney general should petition the Federal Court to vacate the Blacklock’s decision. This would finally remove the doubt that has been cast over the validity of passwords and what circumvention of a digital lock (TPM) actually means in today’s digital world. This would remove it from the record for precedential purposes.

Only then can the Government of Canada claim that it is “walking the talk” when it comes to supporting journalism in Canada.

When the history of how Canada struggled to address climate change is written, a cranky chapter should be aimed at the managers of the Canadian Revenue Agency (CRA).

This for their unhelpfulness on the climate change file.

And then some stick should also be applied to progressive politicians and strategists like me who chose to live with that.

But before I explain that, a little family history.

When I was a child, I liked to play in our living room in the little bungalow I grew up in, bathed, as it was, in warm afternoon sunlight. My mother would usually be sitting on the sofa under our big picture window. It was fun (but possibly not healthy for young lungs) to watch her cigarette smoke eddying in the light.

Periodically she would open her baby bonus cheque in that living room—a little help from the government of Canada to bear the cost of three sons. That was always a happy day for my mother because that cheque was the only income she ever saw addressed directly to her (she was a homemaker in the classic early-1960s style). She deposited those cheques in her own bank account—“my money” as she would always happily say. She spent it all on us.

So then, some years later, in Premier Rachel Notley’s office in Alberta (which was also often bathed in beautiful sunlight), we chose to adopt carbon pricing on the B.C. model to address climate change.

We believed there were many reasons to do this.

Harmonizing with B.C. would promote consistent policy in Western Canada.

Most of the principal Alberta energy industry CEOs at the time supported a B.C.-style economy-wide carbon pricing so that their industry would not be vilified as the only cause of carbon emissions.

Leading economists at the time argued that economy-wide carbon pricing was the least economically damaging policy tool to address the issue.

And—importantly—it seemed like a way to achieve an all-party political policy consensus on climate change that would survive changes of government.

Most Canadian conservatives had finally stopped disputing the reality of climate change and its causes. A center-right government under Gordon Campbell had introduced carbon pricing in B.C. And leading conservative voices like Preston Manning had participated in the “Eco-Fiscal Commission” (funded in part by Alberta-based energy producers) to think through and endorse this approach.

The problem with an “economy-wide carbon price” was that it would impose direct costs on low-income families. A model to address this is present in federal HST/GST rebates. So we wrote that into our plan—low- and middle-income families would get a rebate. They’d get the “nudge”—the price signal that the time has come to reduce carbon emissions—but they’d also get the money back so they weren’t the poorer for it.

We were imagining this rebate as a cheque. What we didn’t appreciate was how inflexible the tax administration system truly was.

Alberta (like all Canadian provinces other than Quebec) has long delegated its tax administration to the CRA, and (as I remember it) Alberta officials reported that not only was the CRA no longer technically equipped to deliver physical carbon levy rebate cheques, but also, that they refused to even discuss the matter. All such payments had to be delivered through direct zero-visibility electronic bank transfers because that is what is inexpensive and convenient for the federal government and its tax agency.

It was a very serious mistake indeed to accept this.

We should have printed our own cheques, in red-bordered envelopes illustrated with the provincial flag, and we should have pre-paid the rebate.

But we didn’t.

And we did not find an all-party policy consensus that climate change is real and that the best way to deal with it is through price and market mechanisms designed by conservative economists. 

Instead, we have laid the table for a Trump-like populist campaign messaging—“Axe the Tax”—delivered every day in Ottawa by His Majesty’s Loyal Official Opposition.

Notwithstanding the Conservative Party’s disciplined message or even the Parliamentary Budget Office’s contested research, most Canadians actually get the consumer carbon fully rebated. However, those “most Canadians” don’t have that rebate in their daily lived experience.

And there’s more. As it turned out, many people who are aware of those rebates still don’t support them. In focus groups I sat through as this policy played out, many Albertans told us they’d rather the revenues from carbon levies be used to improve health care and education, to build public transit, or to invest in renewables.

“Why the hell are you collecting it and then giving it back? What’s the point?” they said.

All of this is, I believe, why the federal NDP recently took a step away from the consumer carbon levy and said they’ll present their own plan in due course.

How material a problem would that be?

The Canadian Climate Institute figures the consumer carbon levy (basically, consumer fuel levies) is supplying about 8 to 9 percent of the solution we need.

That’s not nothing. But it’s not a comprehensive retreat to climate denial, either.

Is stepping away from a consumer carbon levy a policy defeat?

Yes, for everyone who believes in market-based solutions to public policy challenges through price signals.

For social democrats, on the other hand, this is an opportunity to work up more direct regulatory solutions.

It’s an odd moment in Canadian governance, in other words. A moment for social democrats to say to conservatives: “You don’t like your own policies, even when they had an all-party consensus? Ok. Have it our way.”

What is not going to happen is wishing away climate change with alliterative slogans. Anyone who believes that should drive the Jasper Parkway north from Calgary to the Jasper National Park Icefield and go look at what is happening to Canada’s glaciers. Then keep going to Jasper itself and look at what the coming wildfires will do to cities and towns in the Boreal Forest across Canada. Climate change is real. It must be addressed. Including by us in Canada. One way or another.