CBC's Rosemary Barton by Ian Capstick https://flic.kr/p/9tt7Ju (CC BY-SA 2.0)

CBC's Rosemary Barton by Ian Capstick https://flic.kr/p/9tt7Ju (CC BY-SA 2.0)

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What Was the CBC Thinking?: A Closer Look at the Video Clips in its Copyright Lawsuit Against the Conservative Party

The CBC decision to sue the Conservative Party for copyright infringement over seven clips that were either used in a campaign ad or posted to Twitter has unsurprisingly garnered considerable attention. While the CBC claims that its lawsuit was designed to defend perceptions of independence of its journalists and journalism, the opposite has predictably occurred with many believing that the lawsuit itself (filed eleven days before the election after the content was removed) demonstrates bias against the Conservative party. Not only does the lawsuit fuel perceptions of bias, but it causes enormous damage to CBC journalists – Rosemary Barton and John Paul Tasker – who are both named as plaintiffs in the lawsuit. The CBC now says it will file an application to remove them from the suit, but it is hard to understand how anyone at the public broadcaster thought it was a good idea to have one of its lead news anchors and a parliamentary reporter sue a political party.

Beyond the strategic blunder, CBC’s legal arguments are very weak. The Conservatives considered a copyright amendment in 2014 that would have created an exception for political parties to use news clippings. I argued then that it was unnecessary since fair dealing would cover reasonable uses without the need for permission from broadcasters. The Conservatives ultimately dropped the idea, but fair dealing remains in place. In fact, the Supreme Court of Canada just issued a ruling last month that again strongly affirmed users’ rights and the need for balance in copyright. In this particular case, the Conservatives will presumably argue that the use of the short clips – which include attribution through the digital mark on each clip – easily qualify as fair dealing.

Not only are the CBC’s copyright claims tenuous, but reviewing the clips makes the decision to sue even more puzzling. At issue are seven clips, three of which were taken directly from the English-language leaders’ debate on October 7th and posted as short videos on the Conservative Party’s Twitter account. In other words, the clips did not appear in a campaign commercial at all and it is not credible to suggest that the clips somehow implicate CBC journalism or journalists. If anything, the public should be encouraged to watch, use, or re-use footage from the only English-language leaders’ debate in the entire 2019 campaign.

The other four clips appear in a campaign commercial that was removed by the Conservative Party but can viewed here. 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.

I think the clips all certainly qualify for fair dealing, but the larger question is why the CBC thought it necessary to issue takedown demands followed by a full lawsuit seeking a court-ordered injunction. That decision not only demonstrates a fundamental misunderstanding of the law of copyright, but also presents a troubling view of a public broadcaster determined to police all uses of its work. I’ve long argued that the CBC should be adopting the opposite approach, by using open licensing to encourage uses of materials for which the public has ultimately paid. In fact, the Liberals’ platform envisions requiring the CBC to share its digital platform with journalism start-ups and community newspapers. If this ill-advised lawsuit is any indication, CBC executives have something far different in mind.

16 Comments

  1. I think they’re foolish to try to use copyright law to deal with what reads like an attempt to use the reputation of the reporters and their employer to bolster a political claim by the party.

    Alas, I don’t know what other law might address the four complaints of paragraphs 20a-d, so I can’t suggest a better approach.

    Perhaps you could: in the proverbial perfect world, what protection should the reporters have, and from what part of the law?

    –dave ( a philosopher, not a lawyer (;-)) c-b

  2. Trudeau owns CBC. There is no doubt in my mind that Trudeau & his cronies are responsible for pressuring CBC to make claim. This will come out eventually. You cannot trust Trudeau and the CBC in the reporting “fairly” the 2019 election. I beileve this will be the final nail in the coffin for CBC. Rest in Peace.

  3. William Sinclair says:

    Just as the election is winding down and people are getting read to vote. Seams to me that the CBC are in the pockets of the Liberals and the two reporters mention are nothing but Liberals supporters. Time to cut the funding to the CBC.

  4. Grannyapple says:

    One of the clips (town hall) was two clips edited together that changes the statement made by Justin.

    Is editing a video to change the words it contains still fair dealing?

  5. Naturally, one would think that the lawsuit is campaign related. discoverziehler.com/pest-control-mason

  6. Obviously the CBC is bought off by the liberals, and they are in panic mode and desperate to derail or supress anything that makes the liberals look bad.

  7. scott murray says:

    Who really follows the CBC anyway?

  8. michael booth says:

    I think this lawsuit was very ill-advised and will do much more harm to the Liberal Party than it will do to the Conservatives and Scheer. Public perception is the biggest part of any campaign and this lawsuit and its timing has a very foul smell to it whether authentic or not. Trudeau needs no new scandals as the polls indicate.

  9. Marlene Westfall says:

    What is this “moral rights” argument? Why did Gerald Butts call (pressure) Barton before the suit came out? Who are the lawyers working at the CBC? Are they graduates of the University of Windsor’s faculty of law or do they have their law degrees from outside Canada? What is a SLAPP suit? Was the $400 million given to CBC a way for the Liberals to sue the Conservatives? Is there a possible criminal conspiracy if so?

  10. Me. Every day. Apart from this ridiculous lawsuit, they’re the most balanced news outlet in Canada.

  11. Pingback: The CBC Has Damaged Rosemary Barton's Brand, And Its Own

  12. Is Rosemary Barton an employee or subcontractor to CBC?

  13. For all her qualifications and experience as a “real journalist”, I can’t take her and her school-girl giggle seriously. Sadly she’s not alone among Canadian journalists in making editorial comments in her supposedly “neutral” news reports but, my god, please stop with the insane giggling! If she can’t control it, she needs to find a different career!

  14. Pingback: News of the Week; October 16, 2019 – Communications Law at Allard Hall

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