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News content and fair dealing

The debate surrounding the proposed copyright exception for political ads raises questions about the actions of both lawmakers and news organizations.

newspaper boxes covered in snow

One side calls it a boon for democracy. The other calls it highway robbery.

This time, it’s copyright law that’s straining an already terse relationship between the Harper Government and the Canadian media.

While it’s not entirely clear how it will be done, the Conservatives are proposing amendments to the Copyright Act — up and above their substantial reform of the law from 2011 — that will give political parties the right to lift clips from TV news stations, for use in political advertising.

The Conservatives have been relatively transparent in their intentions — oscillating between arguing that the reforms would serve to educate the public and asserting that the media have an inherent bias against their party.

The media, on the other hand, have contended that using their content without permission or compensation is tantamount to copyright infringement, and it raises the spectre that, without limits on how it may be used, parties could use factual newscasts to distort and twist the truth.

Canadian copyright lawyers, however, don’t appear to see what the big hubbub is all about.

Stéphane Caron, a partner at Gowlings who specializes in copyright law, says the parties could probably just air the content now and probably beat a challenge from the broadcasters.

“It used to be that fair dealing exceptions were interpreted quite narrowly,” says Caron.

As the Act states: “fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.”

But, Caron says, thanks to a set of 2012 Supreme Court decisions, those grounds have been expanded. In those five cases, the justices read the definitions inclusively by, in one case, ruling that photocopying textbooks can generally be considered ‘fair’ so long as it’s for private study.

Caron figures, in a similar vein, partisan ads could be found under the “broad interpretation of news reporting.”

Michael Geist, Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, generally agrees, writing in his blog that while the power is not unlimited, “fair dealing under copyright already permits use of many broadcaster clips without the need for further permission.”

That appears to be the government’s take, too.

“In terms of copyright of this, it’s our view that the law is already such that this material is publicly available,” Prime Minister Stephen Harper told a crowd last week. “We think that’s the way the law already is.”

Caron points out that there’s still a body of case law focused on interpreting the fair dealings exceptions very narrowly, so any legislative initiative will probably be for the sake of certainty.

Though, if the government decides to forgo amending the fair dealings section altogether, and introduce a blanket exception — be it ‘fair,’ or not — that could provide even greater cover, especially in political warfare where little is fair.

Caron says that if the government gave parties blanket immunity, it would likely need to install “multiple exceptions to the exceptions,” to ensure that the power is not abused. Alternatively, the government may well not care if the power is abused.

A leaked memo about the changes doesn’t offer much clarity about the actual statutory changes.

On the other side of the issue, broadcasters and journalists have decried the changes.

For one, it’s become a longstanding practice for political parties to lift words from newspaper columns for use in attack ads — something that has been generally accepted.

Television newscasts and interviews, however, are quite a step further. Rather than just being one person’s content, like a newspaper column, a TV report is a production effort.

“There’s a separate work that’s created,” Caron notes. And, more than just the words of the interviewee — say, Justin Trudeau — the content that the Conservatives are after is the product of multiple audio and video technicians, producers, and journalists.

That, tied in with concerns over the manipulation of the content, have led the news networks to lambaste the changes, going so far so as to vow not to air ads that use their, or other broadcasters’, content.

Their opposition, however, may have exposed a whole other issue.

Ariel Katz, at the University of Toronto Faculty of Law, argues that collusion by the major broadcasters on this matter could be a matter dealt with by the Competition Act.

Documents obtained by Sun News show that the big networks, led by CBC, formed a ‘consortium’ in order to combat the use of their footage in political ads — a practice that, notwithstanding uncertainty around fair dealing, has already begun.

“If what those documents reveal is true, then by agreeing among themselves not to broadcast such ads, the involved media organizations might have violated the core prohibition of the Competition Act,” writes Katz on his blog.

“The essence of free competition is that competitors make the relevant decisions pertaining to their business independently of each other. Competitors are supposed to decide what to produce, whom to deal with, what prices to charge, etc. each on its own, not in agreement with each other,” he continues.

The natural defence, from the broadcasters, may well be that they’ve conspired to end the unapproved use of their products, not to end or regulate the licensing of their material.

Katz says that still may run afoul of the law:

“Even if there is no direct profit motivation for entering into such agreement…collusive agreements between competitors are still generally unlawful.”

Howard Knopf, counsel at Moffat & Co., Macera & Jarzyna, suggests that this might be a prime matter for the Commissioner of Competition.

And, as Knopf points out, amendments made in 2009 make it much easier to obtain convictions on competition offences.

“The new section provides for “per se” offences, which do not require proof that competition was lessened “unduly” and there is no need to prove any adverse market effects. There is no need to prove that the conspiracy in question was actually carried out – only that it was entered into.”

Meanwhile, groups like digital advocates OpenMedia skewered the changes not for being, in and of themselves, problematic, but as offering special rights to political parties that ought to be afforded to the public.

“Copyright laws should never be used to stifle free political expression. However, this government is shamefully trying to carve out a self-serving, narrow exception that would only benefit political parties, while excluding the free expression rights of everyday citizens,” Executive Director Steve Anderson said in a statement.

“Every Canadian should benefit from sensible fair use rules that enable us to express our views freely,”