The CBC – Canada’s National State Subsidized Broadcaster – Confronts in Court the Conservative Party and Copyright Law 10 Days Before the Federal Election: What Could Possibly Go Wrong?

From Excess Copyright:

Not for the first time, the CBC – Canada’s 83 year old, usually respected even if frequently controversial taxpayer subsidized broadcaster – has embarrassed itself badly on the copyright front. This time, however, it has outdone itself in terms of controversy by suing one of Canada’s two main political parties for copyright infringement just 11 days before a national election. It has taken, IMHO, an inexplicable and frankly unsupportable position seeking to prohibit the use of short excerpts from broadcast footage in the course of election campaigns. It will be recalled that in 2014, Jennifer McGuire, who is apparently still employed by the CBC in the same very senior position as General Manager and Editor in Chief of CBC News that she has held since May 2009, led the charge with a “consortium” to try to stop the use of such excerpts in political campaigns. The thought was even entertained by the government of the day led by Stephen Harper to pass legislation explicitly allowing for such usage by political parties, notwithstanding that I and others warned that that such legislation was not only unnecessary but could potentially and likely even be very counterproductive. I wrote about all of this almost five years ago just over a year before the last election, including how Rick Mercer demonstrated his sadly ironic apparent ignorance about copyright law. It’s déjà vu all over again, except that this time it’s much worse.

In any event, Ms. MaGuire is still in charge of the news network at CBC and is the apparent guiding mind behind what is likely to go down as one of the most misguided moments in the history of the CBC in terms of both journalism and the law and may well prove to be a defining moment in the increasingly possible demise of the CBC – especially if the Conservative Party of Canada wins the election, which this latest fiasco may ironically help to facilitate. Ms. McGuire is also CBC’s representative on the CDPP (Canadian Debate Production Partnership), which managed to present two French debates and only one English debate (go figure!).

The CBC has unaccountably and inexplicably sued the Conservative Party of Canada for a campaign video, visible above, that includes several short excerpts (only some of which are from the CBC) from various broadcasts, consisting of at most ten seconds in each case. Here is the remarkable Statement of Claim, which could serve as good teachable moment for any law school copyright or civil litigation class. Here’s a hint – why ask for an interim and interlocutory injunction where there is obvious doubt as to whether there is a even a serious issue to be tried just 10 days before the interim injunction would be moot anyway against activity that has already admittedly ceased, and where there is no credible evidence of irreparable harm arising from practices that are decades old?

. . . .

Michael Geist has succinctly parsed and measured the CBC’s possible claim in key quantitative and factual respects:

One of the clips features two short segments (total of ten seconds) of Prime Minister Justin Trudeau at a town hall event. There are no CBC journalists involved, though the town hall aired on the CBC. Displaying ten seconds from a town hall that ran over an hour hardly qualifies as a significant portion of the work and again does not implicate CBC journalists or journalism.

The remaining three clips do include CBC journalists. One involves four seconds of Andrew Coyne speaking on the At Issue Panel on conflict issues. Rosemary Barton appears in the clip (as does Chantal Hebert) but says nothing. The clip should qualify as fair dealing, but it is difficult to see what the fuss is about given that Barton does not even speak in it. Another clip involves five seconds of John Paul Tasker appearing on Power and Politics discussing support to Loblaws for energy efficient refrigerators and the last one features five seconds of Rex Murphy talking about moving expenses. The clips are short and demonstrate that CBC journalists engage in legitimate critique of government policies and action. That isn’t bias, that is doing their job. Indeed, all these stories were widely covered in the media and there is nothing particularly controversial about what is said in the clips. (highlight added)

Link to the rest at Excess Copyright

7 thoughts on “The CBC – Canada’s National State Subsidized Broadcaster – Confronts in Court the Conservative Party and Copyright Law 10 Days Before the Federal Election: What Could Possibly Go Wrong?”

  1. As I understand it, Canada has no fair use law/precedent.
    Which, if it did, would definitely apply.
    Not sure if their courts believe in DeMinimis.

    Of course, going after the same party twice is a good way to get a fair use law.

    • As I understand it, Canada has no fair use law/precedent.

      We do actually – it’s called “fair dealing”.

      The aforementioned Michael Geist covers it in his post on this subject.

      “Given their short duration, appropriate attribution, and legitimate use for political expression, the Conservative Party has a very strong fair dealing argument, which permits reasonable uses without requiring rights holder permission. In fact, the Supreme Court of Canada issued a ruling just last month that strongly affirmed users’ rights and the need for balance in copyright. In other words, the CBC may own the clips, but copyright law does not grant them absolute control over all of their uses.”

      • Isn’t fair dealing limited to explicitly listed exceptions?

        Fair use is much broader than a simple list of exemptions. It is a set of yardsticks that apply in all cases. As long as the use stays within bounds (transformative, not a one-by-one replacement for a commercial product, etc) any use is defensible.

        • Ah! My apologies. I see them as similar from a layman’s perspective. I am certainly not even close to being a lawyer 🙂

          In the specific case being discussed (the CBC) either would apply 🙂

          Here’s a quick summary of the two I found online that wags its finger at me:

          It is nevertheless important to understand that fair dealing and fair use are not synonymous terms since their meaning and scope are defined by different legal systems.

          • That was my understanding.

            Fair dealing is based on UK law and operates on the principle that “what isn’t explicitly permitted is illegal” whereas fair use operates on the idea that “what isn’t forbidden is permitted. Probably.”.

            Different ideas of freedom.

            Also, fair use isn’t, strictly speaking, a blanket permission but rather a case by case defense. It originated from case law rather than legislation (just like First Sale doctrine). By now there are enough precedents that the bounds of fair use are pretty well understood.

            Except by NYC Publishers. 😉

            • Funnily enough, due to its common law origins, English law basically operates on the basis of “what isn’t forbidden is permitted”, so not such a huge difference in ideas of freedom.

              However, since the Statute of Anne copying someone else’s creative work has been forbidden so we get the situation with “fair dealing” where the law lists the purposes which may be fair and thus not forbidden: criticism and review, quotation, reporting current events, parody, caricature and pastiche, research and private study for non-commercial research, preservation or replacement copies, educational uses for instruction and examination, text or data mining for non-commercial research.

              Of course, “fair” is not defined so whether their use for these purposes is “fair” is left up to the courts; it appears to me that this law is not so different from “fair use” (though the courts’ criteria may be significantly different) save that it seems that “fair use” is much more open ended, and not always very fair to the original creators.

              • Yes.
                That seems to be the intent of the US courts.
                Leaving fair use vague and flexible enough to allow common sense and evolving tech to have their way. That’s where the tests come in.

                US fair use is actually very old but the doctrine has kept up nicely with the times with no need to constantly drag in the politicians. Sometimes the judges get it right.


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