CBC Button by Rebecca Bollwitt https://flic.kr/p/9dwQhg (CC BY-NC-SA 2.0)

CBC Button by Rebecca Bollwitt https://flic.kr/p/9dwQhg (CC BY-NC-SA 2.0)

Columns

CBC vs. CPC: Why the CBC’s Attempt to Use Copyright to Stifle Expression Backfired Badly

The CBC’s copyright infringement lawsuit against the Conservative Party over the use of seven short video clips in a campaign ad and several Twitter postings sparked a torrent of criticism as even CBC supporters wondered what executives were thinking. My Globe and Mail op-ed notes that the public broadcaster claimed it was defending the independence of its journalists and journalism, yet the opposite predictably occurred, with many believing that the lawsuit itself demonstrated a political bias.

Not only that, it caught two CBC journalists – Rosemary Barton and John Paul Tasker – in the crossfire by naming both as plaintiffs in the lawsuit. The CBC now says it will file an application to remove them from the suit, but the potential reputational harm arising from suing a political party may be difficult to undo.

The lawsuit is all the more puzzling because the legal claims are quite weak. The majority of the seven clips do not even include CBC journalist. Three are taken from the English-language leaders’ debate and one from a town-hall meeting with Liberal leader Justin Trudeau. Of the remaining clips, Ms. Barton says nothing in one and the others run for a total of ten seconds.

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.

The decision to file the lawsuit just over a week before the October 21st election is similarly inexplicable. The Conservative Party may have had a strong legal case, but it nevertheless took down the videos containing the clips at issue before the lawsuit was even launched. The CBC could easily have waited until after the election to seek an injunction blocking further use of its content. Instead, by filing in the middle of the election campaign, it placed its reputation and that of its journalists at risk.

Yet perhaps worse than poor legal judgment is what the CBC’s effort to use copyright to stifle political expression says about its strategic thinking. The public broadcaster talks about embracing the digital environment, but over the past two years it has advocated for new taxes on internet and wireless services, supported website blocking without court oversight, likened foreign internet streaming services to cultural imperialists, and signalled that Canadian television producers should look elsewhere if they’re thinking of partnering with services such as Netflix.

Ironically, rather than battling the internet, the CBC should recognize that the online world provides an exceptional opportunity to demonstrate its value to Canadians. While some have characterized the CBC’s role in providing digital news as an unfair, publicly-subsidized competitor to private news services, the industry’s increasing reliance on paywalls is precisely why the CBC should be offering a free, taxpayer-backed digital alternative that ensures that all Canadians have access to reliable news and expert opinion without regard for their ability to pay for it.

Moreover, the CBC could further distinguish itself from private broadcasters and media organizations by following the recommendation found in the Public Policy Forum report Shattered Mirror to adopt an open licence for its news content. That approach would allow others to freely use the content without fear of the kinds of lawsuits it just launched. The Liberal government has played around the edges of this idea, using its 2018 budget to announce $50 million in support for local journalism to create open source news content and committing in its 2019 election platform to requiring the CBC to share its digital tools with journalism startups and community newspapers.

The CBC will be back in court on Tuesday as it tries to withdraw its journalists as named plaintiffs from its copyright lawsuit. But this incident reinforces that it will take more than an amended pleading to fix a public broadcaster that has lost its way in the digital world.

7 Comments

  1. JIM Johnson says:

    Why is the CBC even allowed to continue their bias through to October 21. I am surprised the Conservatives would allow them on the campaign trail and ask further questions.

  2. JIM Johnson says:

    If CBC was smart they would withdraw the law suit. If the Conservatives win a majority defund the CBC.

  3. Simone Cardenas says:

    I’m surprised that no one has pointed out that the CBC’s statement on this matter simply doesn’t make sense in terms of the level of the journalists’ involvement.

    Moral rights can only be waived under the Canadian Copyright Act — they’re a personal right that cannot be transferred by contract. Which means that the CBC cannot simply remove the two journalists as claimants without *also* striking the moral rights claims in the Statement of Claim.

    The CBC does not own or exercise control over the journalists’ moral rights, only the journalists themselves do.

  4. Pingback: October 11-15, 2019 – The Friendly Daily

  5. I believe we need a public broadcaster. What we don’t need are the executive management that made this ludicrous decision. Fire them.

  6. The Globe and Mail oped was a very clear and helpful article, congratulations. With our small geographically spread out population we desperately need a common meeting place to be informed but also to discuss news, developments and ideas affecting all parts of the country. The CBC could do this but does not, probably due to a lack of imagination. Like Craig, above, I feel that heads should roll over this. Hopefully in the process the type and quality of programming (particularly the evening news) can improve.

  7. I don’t like watching CBC, and I don’t like their TV shows.

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