In the spring of 2007, Friends of Canadian Broadcasting, the well-known broadcasting advocacy group, began to post videos and podcasts of Parliamentary committee proceedings on their website. When officials at the House of Commons caught wind of their activities, they promptly sent a cease and desist letter, demanding that the videos and podcasts be removed from the Internet. A lawyer for the House of Commons argued that posting excerpts from committee proceedings could be treated as "contempt of Parliament."
The group responded that they did not want to remove the videos, but would be willing to follow a reasonable procedure to obtain the necessary permissions. That response did not sit well with the Chairs of the Finance and Canadian Heritage Standing Committees, who upon learning that the group was offering webcasts and downloads of their proceedings, asked the Standing Committee on Procedure and House Affairs (SCPHA) to examine the issue to prevent further infringement.
The notion that videos of committee hearings constitute proprietary content that when used without permission raise the potential for allegations of contempt of Parliament or copyright infringement will undoubtedly come as news to many Canadians. Using these excerpts in YouTube videos, webcasts, or podcasts has emerged as an important and powerful tool for business and consumer groups to educate the public on policy issues and legislative proposals.
Yet House of Commons lawyers maintain that many of these activities violate the law and have sent notice and takedown demands to YouTube seeking the removal of videos that include House of Commons and committee proceedings. These include clips that involve satire and parody, since they are seen to "distort" the video itself.
SCPHA hearings held earlier this year revealed that Canada's elected officials safeguard Parliamentary video with very restrictive licencing requirements that are generally limited to use in schools or for private study, research, criticism or review. Relying on crown copyright, the policy states that any other use – including any commercial use – requires the express prior written approval of the Speaker of the House of Commons.
This stands in sharp contrast to the United States, where the default presumption is that such videos are in the public domain and can be freely used without permission. House of Commons lawyers portrayed that approach as representing an extreme position.
To their credit, most of the MPs on the Committee recognized that changes to the policies in the YouTube era are needed. However, MPs from the three opposition parties expressed some reluctance to mirror the U.S. approach, fearing that some videos taken out of context could be "terrifically damaging." Bloc MP Claude DeBellefeuille raised the possibility of lawsuits to enforce the copyright and noted that "we will have to establish rules so that we have some recourse and that remarks can be withdrawn after they have been broadcast and pointed out."
Conservative MP Scott Reid came closest to recognizing the problems associated with retaining certain restrictions, warning against policies that provide that videos are "usable for certain purposes but not for the purposes that lie at the heart of what this speech is for." Instead, he argued that using video excerpts for either favourable or critical purposes would be appropriate.
The Committee ultimately adopted a liberalized policy that permits non-commercial, accurate reproduction without prior permission. Commercial uses still require prior approval, while "distorting" a video for parody, satire or political comment purposes may still fall outside the licence and lead to demands for its removal. The new policy is a modest improvement, but it fails to fully realize the potential of public political participation through online video.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at firstname.lastname@example.org or online at www.michaelgeist.ca.