The hot video of the week is the remarkable mash-up of the Apple 1984 advertisement, which in its new incarnation stars Hillary Clinton and promotes Barack Obama. The video has been viewed more than two million times and received considerable mainstream media news coverage. An Associated Press story caught my attention as it discussed the prospect of Apple suing the creator of the Clinton version. The article concludes that a suit is unlikely, given the strong fair use protection for political speech.
That may be true from a U.S. perspective, but would the same analysis apply in Canada? It's a question that needs an answer since the importance of this form of political speech is likely to grow on both sides of the border and with an election on the horizon, there is every reason to believe that we will see creative clips featuring Canadian political leaders. Much like the minor controversy involving the Conservative Party's attack ads on Dion, which raised questions about copyright clearances, it is by no means certain that a Canadian version of the Clinton ad would be protected. Given our limited fair dealing provision, it would be difficult to bring the ad within the boundaries of research, private study, criticism, or news reporting. Indeed, the closest exception is parody, however, Canada does not have a parody exception. This form of political speech should surely enjoy protection, yet Canada's policy makers have been so focused on unnecessary DRM provisions, that we've neglected the reforms that really matter.