CBC News advertising board, CBC Broadcast Centre, Toronto, Southern Ontario, Canada by Pranav Bhatt (CC BY-NC-SA 2.0) https://flic.kr/p/9HBz23

CBC News advertising board, CBC Broadcast Centre, Toronto, Southern Ontario, Canada by Pranav Bhatt (CC BY-NC-SA 2.0) https://flic.kr/p/9HBz23

Columns

Broadcaster Copyright Misuse and Collusion?: Why Criticism Over the Government’s Political Ad Copyright Exception May Be Pointed in the Wrong Direction

The Canadian Thanksgiving weekend featured escalating rhetoric over the government’s proposed copyright exception for political advertising with claims of fascism, censorship, expropriation, and more. The commentary bears almost no relationship to reality. The truth is that the government and the broadcasters both agree that the current law already permits use without authorization. For all the claims of “theft”, the copyright owner (broadcasters) and user (political parties) both agree that the works can be used without further permission or payment. As Ariel Katz points out this morning, the bigger issue may well be whether Canada’s broadcasters violated the Competition Act by conspiring to not air perfectly lawful political advertisements.

I wrote about the controversy in my weekly technology law column (Toronto Star version, homepage version), but the debate can be boiled down to three issues.

First, it is important to emphasize again that fair dealing under copyright already permits use of many broadcaster clips without the need for further permission. While the scope of fair dealing is not unlimited, the broad approach dictated by the Supreme Court of Canada means that many uses are already permitted under the law. Therefore, the claims of co-opting broadcasters, theft, and risks to press freedom are simply wrong.

Second, the proposed change is problematic, but not because it creates a political advertising exception. The exception may be of limited value, but the problem lies in the inequitable policy of creating two tiers of rights for political speech. As currently crafted, the exception would only apply to political parties, politicians, candidates, and their agents. The creation of an exception that only allows a select few to benefit is not a provision that can be defended on freedom of political speech grounds. If the government is convinced that stronger protection for political speech is needed, there are far better options, namely a full fair use provision or the inclusion of political speech as a fair dealing purpose that would be available to all.

Third, the entire strategy is rather puzzling since the proposed exception does not address the underlying issue: broadcasters are now refusing to air legal advertisements from political parties. Documents obtained by others under the Access to Information Act reveal that the CBC was the instigator behind the April 2014 warning letter to all political parties that the broadcasters wold not accept political advertisements using their content without express authorization. The email trail reveals that the CBC recognized that it could not reject the advertisements on copyright grounds. Instead, the broadcasters conspired to adopt a policy to reject the ads anyway, an approach that smacks of copyright misuse and a potential Competition Act violation.

The odd thing is that the proposed copyright exception would have little impact on the broadcaster policy. The legal change would not require broadcasters to air the advertisements and since the decision to refuse to air is presumably not grounded in copyright law, the change would not alter the broadcaster position. The entire episode ultimately raises troubling questions about why the CBC was pursuing efforts to limit legal uses of its work (I’ve argued it should open up its content for wider use), why the government is bothering with a provision that does not solve its concern, and perhaps most importantly, why has there been so little focus on a broadcaster policy to refuse to air political advertisements that by their own admission are perfectly legal.

22 Comments

  1. Well, the little focus on the broadcaster refusal portion would likely be because the broadcasters are the ones talking about it the most. And when you control the message, you can focus the discussion in a direction you want.

    As for why the government is trying to pass this provision that won’t do anything, it doesn’t make a huge amount of sense either when you think about it. Maybe they think is this is easier than attempting to show collusion while still showing their backers that they are trying to do something against the media organizations perceived power.

  2. Surely the broadcasters think the broadcasts should not be legal, and that the government showed it thought it was not legal by proposing a new law to legalize it.

    • Bill Brasky says:

      What the broadcasters think should or should not be legal is absolutely irrelevant to what the law currently states. The government clearly thinks that it IS legal, simply by continuing the practice despite the complaints from the broadcasters. The fact that they’re clarifying the law simply backs up their view.

      • It is not that the government thinks it is legal, the practice is legal. The Law was passed 300 years ago by the British Government and since adopted in both Canada and the USA. It has even stood the test of our Supreme Court. What the broadcasters are doing is most likely illegal colluding in a cartel is contrary to the Competition Act.

        • If the government thinks it’s legal, then they don’t need to pass a new law to make it legal.
          However, they’re proposing just such a law.
          Therefor they think it’s illegal (Modus Ponens)

          I happen to agree with Derek: the arguments I’ve seen, on Slaw and elsewhere, suggest that it is legal to quote snippits out of context, thus raising the problem Sean Fordyce discusses below.

  3. Glenn D. Jones says:

    From Don Martin’s CTV article:
    - – -
    “There are already legal loopholes allowing access to copyrighted material for research, education or satire purposes, provided the source gets credit.”
    - – -

    IANAL, but I don’t think fair dealing can be reduced to a caricature of “loopholes”.

  4. Don Martin? Please! Another biased member of the CTV crowd that is continually whining about Harper and the government yet never has a good word to say. Want proof? Listen to Rober Fife and Craig Oliver on QP crying Harper or Baird won’t speak to them. Like with Martin the question is why bother – you can write their material for them before the interviews start – all Trudeau, all the time. And they think folks don’t notice. LOL!

    • You’re joking right? C(onservative)TV is biased against the Conservatives? LOL Let me get this straight, all news networks across Canada are against the Conservatives, right? They never get a fair shake, right? LOL Come on now, stop trying to play the “but Im so little” game. There is only ONE, ONE network in this country that is purely biased towards one party and you KNOW this to be true. Who do the Conservatives think they are fooling with this nonsense.

      Oh and btw, its called the SUN “News” Network. Just to be utterly clear about it.

      • YOU are joking, right?

        You don’t think CTV is biased against the Conservatives? Witness Robert Fife going on day after day after day after day about Nigel Wright and the $90k. Yet there was very scant mention of the NDP blowing many times that on satellite office staff and mailouts. Isn’t it funny how the media apparently gets to decide what is a scandal and what isn’t.

        And CTV is as guilty as the rest of the MSM – with the exception of Sun News – of never asking serious questions of the Dauphin.

  5. William Whyte says:

    Perhaps the new government legislation will contain additional penalties such as fines and jail for those colluding to restrict broadcast of legitimate election ads…. in addition to the penalties under the Competition Act. Now that would tie up the CBC media consortium in the courts for years.

  6. I always knew, and read today – this was all started by Peter Mansbridge…. I am a strong conservative, and when – I ever watched him on TV – he jumps for job anything liberal… and even with his panel, he slants everything he can against the conservatives…. I am a hard worker for the conservative party.. and will do everything in my power to his expose his bias. Let’s know his salary the Canadian taxpayer is paying him… and if he wants to work for the liberals – well let’s make CBC private and let the liberals pay him… He is a joke as a reporter…

  7. Sean Fordyce says:

    Fair use is primarily a financial position (copying a whole article is not fair to the copyright holders etc.) But we are talking about clips that are no threat to the value of the original piece but rather the reputation of the broadcaster and interviewee when taken out of context. Broadcasters function because people will allow themselves to be interviewed for a program. If they find that their interview may be used elsewhere, out of context they are less likely to want to be interviewed.

    Journalism by nature deals in relationships and trust. The use of clips for news is one thing and we expect broadcasters to avoid bias in presenting these as much as possible. To have the right to clip anything from anywhere out of context to present a case for or against someone is not unbiased. When broadcasters lose the right to protect the interviewees from abuse for someone else’s advocacy they lose the ability to ask for the trust required for someone to consent to an interview.

    Another issue is the context. If we are to see clips used in political ads the context ought to be available. The only way to make it available is to make that content in whole available. There is no public library of broadcasted material. Broadcast clipping is expensive for many organizations and beyond the reach of individuals. This material should not be treated as newspapers and books are that can be tracked down by anyone who wants to see them. To be fair to viewers the whole context must be available — but then that is no longer fair use.

    • Indeed: the prevelence of manipulated quotes in attack ads, and the very high cost of producing and showing TV ads poses a nasty question about whether the fair dealing exception is “fair” any more. I can well imagine a lawyer making a case for taking the question away from the courts and pre-making a decision via legislation.

  8. It was okay for the CBC to run ads regarding Harper “putting guns on the streets during the Martin election. No pull back from that… the only reason Peter Mansbridge is upset about this…. is because
    “clips” of his little boy wonder has made so many childish comments that if the public has a change to see, every Canadian would realize his is far from ready for prime time. The media has done everything possible to “hide” his comments…. but by taking clips so the public can see, Mansbridge little boy doesn’t have a chance. Go back and look at the look on Peter’s face when he had to announce that PM Harper won the last election. That tells it all! He has been working morning, noon and night to get rid of him ever since.

  9. The greatest threat to our democracy (or any democracy) is a state-owned broadcaster. In Canada it is a $1.1 billion per year subsidy to “progressive” values and their political representatives. Everyone who trumpets the merits of the CBC on cultural groups would be arguing for its destructive if it was as conservative as it is liberal.

  10. While we’ve been busy debating the issues on our respected blogs, today Bell started filing copyright take-down notices on Youtube over it’s content uploaded by another blogger who used the clips to criticize CTV.

    http://canuckpolitics.com/2014/10/14/bell-media-abusing-copyright-law/

    So what’s this? Copyright trolls have now invaded our nations newsrooms?

  11. Pingback: Rick Mercer: Not Informed or Copyright Troll? | Jason Koblovsky

  12. Earnest Scribbler says:

    Michael, you never met an exemption you didn’t like.

  13. Take-down notices are a part of US law. This is not surprising since YouTube is a US site. That opens the door for a counter-notice to have the material restored, if someone wants to gran jurisdiction to US courts. The matter could then be adjudicated under US law, Curious!

  14. Finally, a very clear well written explanation to this issue. Thank you Michael. A bookmark for my political research.