Why Canada’s Fair Dealing Rules May Impede Free Speech: The Conservative Ads, the CBC, and Copyright

This week the Conservative party began airing a series of ads criticizing the opposition, including three that included short video clips from a CBC program.  The CBC has objected to the use of the footage, stating that its material should not be used in partisan advertising and noting that the Conservatives did not ask for permission to use the clip.  The Conservative party has responded by arguing that the use is covered by fair dealing and that no permission was needed.  According to the Fred DeLorety, the director of communications for the party, “It’s free speech. It’s free use.” To support its position, the Conservatives point to the use of a similar clip by C-SPAN in the United States under its fair use rules.  The argument seems to be that if it is fair use in the U.S., surely it is fair use (or dealing) in Canada (Stephen Taylor makes the same point in criticizing the CBC for not having a better grasp of fair use).

The problem with this argument is that is mistakenly presumes that the U.S. fair use provision covers the same ground as Canadian fair dealing.  It doesn’t.  Indeed, this is precisely why many have argued for a flexible fair dealing provision, which unfortunately is not found in current Copyright Act or in Bill C-32.

There are three key points here.  First, the use of the clip should be covered by fair dealing.  This is clearly free political speech which is deserving of protection.  The Conservatives did not ask for permission to use the clip and they should not have to ask for permission to do so.

Second, it is far from certain that the current fair dealing provision covers this particular use.  As I have explained many times in the context of the current reforms to fair dealing, the current provision includes a limited series of categories – research, private study, news reporting, criticism, and review.  If the use does not qualify under one of these categories, it can’t be fair dealing (even if the use itself appears fair).  The use of these clips might be squeezed into criticism but it is far from certain that a court would accept the argument.  In the U.S. (and other countries such as Israel and the Philippines), there is no need make these arguments since fair use is flexible and can cover any potential use.  Canada should have a flexible fair dealing provision – one that allows for the inclusion of political speech, parody, satire, education, and innovation – yet the government rejected that recommendation with its more narrow approach in C-32.  That choice has real world consequences such that legitimate speech may require permission (that can be denied) first.

Third, Bill C-32 actually makes the situation even worse with the inclusion of the digital lock provisions.  While these particular clips may not have been protected by a digital lock, similar footage found on DVDs that do contain a digital lock would face a new legal restriction if the current bill becomes law.  In fact, even if the use of the clip can be made to fit within fair dealing, if the clip was protected by a lock, an attempt to circumvent the lock – even for the legitimate free speech use – would likely still be an infringement under Bill C-32.

This is not the first time the restrictive nature of fair dealing in Canada has had political speech consequences. I wrote about the issue in 2007, noting the restrictive rules for remix political videos.  The obvious, much needed solution is a flexible fair dealing provision that ensures that the free speech rights of Canadians are not unduly restricted by copyright law.  Sadly, the current Bill C-32 may actually make the situation worse with the digital lock rules and does little to recognize the crucial link between fair dealing and free speech.


  1. Ah, the tangled webs we weave all in the name of making sure someone gets money.

  2. Asking permission to use
    There should be a provision mentioning that the copyright owner should answer within a specified time period (e.g. 90 days). Failure to respond to the request within the legal term means you have permission for what you asked.

    Otherwise any request of such kind goes to the trashcan.


  3. Russell McOrmond says:

    Someone gets some money?
    Chris A,

    The most annoying thing about the limitations and exceptions debate is that when Copyright oversteps its bounds it doesn’t make creators more money, it costs them more money. It is true that making copyright touch the private lives of everyone and disallow the creativity of other might make someone money, but that would be corporate executives and lawyers : not creators.

    The claim that Canada adopting a flexible Fair Use regime would create uncertainty is backwards thinking. We need to create certainty in the larger economy and citizen communication that should be outside of Copyright, returning Copyright to being a regulation of commercial activities such that only those companies engaged in those activities needed to know it.

    Hopefully the Conservatives will realise that they, like all other Canadians, have been lied to for years with the false claim that Canadian copyright law is less tilted in favour of copyright holders than US law. Just because something is legal under US copyright doesn’t make it legal here, considering our copyright law regulates more activities than US law.

  4. @Russell McOrmond
    Honestly, at this point I find the whole debate horribly amusing and have mostly given up on there being any real consensus or reasoning that will benefit anyone other than the middle man. My first comment was more tongue in cheek than anything meant to be taken seriously (perhaps other than being bitter about anything to do with copyright, the CRTC, the government, etc.)

  5. graham watt says:

    old fart
    If you take a CBC piece featuring Ignatieff, for example, and use it in your political party’s brand advertising (attack ads) why wouldn’t Ignatieff be able to claim residuals from the conservative party. His face and name in the branded attack ad definitely was designed to produce a favourable result for the brand holder.GEORGE

  6. pat donovan says:

    as I say
    but don’t do as i do. Or you’ll gete a legal s-storm the like of which you’ve never seen before on your head.

    are you seriously considering the CONSERVATIVES as a beacon of light, honesty and hope?


  7. I’m getting madder every day
    If the guy’s communications director doesn’t even know that it’s called “Fair Dealing” and not “Free Use” or worse, “Free Speech”, and that it’s a different defense here than in the US, then why am I expected to let him pass a law that makes sharing a crime just so that his rich friends can get more rich.

    I hope he calls an election soon so I can start knocking on doors! I swear, I won’t stop until the day this evil tyrant is overthrown!!!

  8. @ Boothie
    …The problem is the voting public are too ignorant to consider changing hands over one issue unfortunately.

  9. Wake up time
    Perhaps this will be the spark that gets *all* members of Parliament taking a close look at copyright law and C32. Up until now I get the impression that only a few players are really involved, with the big swingers being the lobbyists. There are lots of critics, including myself, but for the most part we are ignored.

    I predict this will be painted as a “CBC vs Conservatives” issue in the major papers though, not an analysis of the contradictions and pitfalls in Canadian copyright laws, and the impact on all Canadians. C32 won’t get the attention it absolutely needs to get.

    Still, one can hope that a few disinterested Conservatives will look into this and discover that US law is quite different, and more flexible in this aspect. Maybe discover that C32 won’t help them in this kind of situation, not one little bit. Wake up time.

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  11. rev.paperboy says:

    hoisted by their own petard
    so, if I understand this correctly, this means that if the Conservatives had taken their head out of the backsides and passed a decent copywrite bill that included flexible fair use/fair dealing provision, as so many of us urged them to do, they wouldn’t be in all this trouble over “stealing” the video clips from the CBC, right?

  12. “To support its position, the Conservatives point to the use of a similar clip by C-SPAN in the United States under its fair use rules.”

    Again, comparing us to the US. Just because we share a boarder and similar culture, doesn’t mean we’re part of the US!!!!!! Harper really needs to get his head out of Obama’s a$$!!! He needs to be taken down. I have no doubt that in political science books and history books for years to come that Harper will unanimously cited as the worst PM for Canada in Canada’s history.

    This really hilights the “do as I say, not as I do” attitude the conservatives have. I truly hope the CBC really pushes this issue.

  13. Just to stir the pot a bit…
    Given that the CBC is heavily supported by the Canadian taxpayer, shouldn’t anything they produce be covered under Crown Copyright? 😉

    @oldguy: Not sure that this will do anything with respect to the “CBC vs Conservatives” issue. The CBC is already viewed by many as being a vehemently anti-Conservative party network to start with, so this may not create an issue so much as make the issue appear larger.

  14. Interpretation?
    Hey I believe many people are missing the point entirely!

    So our Current government is breaking Canadian law, and reputable government sources have deemed their actions allowable because a Foreign country does it? It this correct? IT THIS ALL RECORDED!

    What this means it…I can now carry a gun (because its allowable in the US)….I can now enforce child labour (Im sure a google search would turn up plently) and the list goes on and on.

    Since the gist of a government is to lead its citizens and set examples….anything they do is doable by regular citzens, is it not correct?

    Its logical, the evidence is right infront of your face, and im sure it can be held up in court!

  15. Interpretation
    And I apologize for typing “It” inplace of “Is”, was feeling a bit passionate :), However i do believe those few words uttered in the conservative memo citing US Laws as an excuse to break ours, is capable of shaking the foundations of our legal system as we know it.

  16. Let’s be absolutely clear. No one is saying the Conservatives don’t have every right to criticize their political opponents. That they have done so by using video clips is their choice, NOT their only free speech alternative.

    There is far too much lazy conflation of the act of speech with the tools used. They are different things.

    I imagine the criticism category of fair dealing allows all political parties a great deal of leeway in quoting their opponents to embarassing effect. Why should it also guarantee they can do so by using video they did not create?

    And why does this lazy conflation have to keep happening here, where making key distinctions — surely — is the sholarly raison d’etre?

  17. John, you miss a major point. It’s not a question of their use being really “fair” or not, it’s a question of Canadian law and the Conservative party ignorance of Canadian law.

    When defending their actions, the Conservative spokesman didn’t quote Canadian law or precedent, he quoted a US one, using US terminology. In this particular area, US copyright law is a lot more flexible than Canadian law. There is no such thing as a “qualifying category” under US law, simply a test for “fair use”.

    So why didn’t the spokesman quote Canadian law or precedent? Is he (and by extension the Conservative party) really that ignorant of Canadian law? Or perhaps they already know that their use will have a difficult time qualifying under existing Canadian law?

    I’ve seen some of the ads, it is very debatable that some would qualify under the category of “criticism”, or any of the existing categories. Even C32 won’t extend the qualifying categories far enough to help them.

    This drives directly to the heart of one of your own concerns with C32, the extension of the qualifying categories to include education, and others. Perhaps the best idea is to eliminate the qualifying categories completely, and jump straight to the fairness test? That would satisfy the existing Conservative quandary, bring the law closer to the more flexible US one, and eliminate your concerns about education being included as a qualifying category in C32.

  18. oldguy,

    I have no idea why a CPC spokesperson would reference US law over Canadian. I’m not missing that point — it doesn’t much interest me. I would chalk it up to general confusion over copyright (due to pernicious misinformation).

    What does interest me is the relentless campaign against a fair dealing provision I personally have never had trouble with in over twenty years of professional creation. I like the qualifying categories, find them perfectly logical and generous and would not want to depend on a fairness test that would require endless legal examination and would in fact encourage lawsuits.

    Furthermore, I believe we should be open to adding new categories, but when doing so we should be extremely careful that a new category does not bring serious unintended consequences with it — such as the needless destruction of established and perfectly fair compensation for rightsholders, which would be the case with the education category.

    You sure are getting the hang of that fair use/flexible fair dealing shell game, though. I’ll say that for you. Of course, you study at the feet of the master.

  19. I think the fact that they chose to site US law over Canadian law speaks volumes of just how in bed with the US our Canadian government is. I might be apt to overlook such a statement as poorly chosen if it was the first time. This is what…3? 4? times in the last year alone they made VERY US oriented statements with regard to copyright. John, it may not interest you much, but I find it very interesting.

  20. …in any case…
    I think certain members of the conservation government, including Harper, should seriously be investigated for collusion with American interests. Over the past year it has become obvious to me that the American influence on our government is far beyond that of what it should be. We’re like the American’s good little lap dog…doing what we’re told…all the while the Americans are doing something different. Metallica did a song called “Dyer’s Eve” and the first two verses are as follows…

    Dear Mother
    Dear Father
    What Is this Hell You Have Put Me Through
    Day in Day out Live My Life Through You
    Pushed onto Me What’s Wrong or Right
    Hidden from this Thing That They Call Light

    Dear Mother
    Dear Father
    Every Thought I’d Think You’d Disapprove
    Always Censoring My Every Move
    Children Are Seen But Are Not Heard
    Tear out Everything Inspired

    What do you think, could mother and father be the Canadian and US governments? I made the Canadian government the mother since we’re getting scr3w3d by the Americans. The victim(s) in this case, the average Canadian.

  21. John,
    It doesn’t interest you that a spokesman for the Conservative party, responsible for drafting bill C32 to update our copyright laws, doesn’t understand the difference between Canadian and US law?
    I find *that* interesting.

    And John, if you define a “master” as someone that knows more about a particular topic than I do and can explain it well, I learn from “many masters”. Even you have managed to teach me a few things. I am not so ossified in thought that I cannot learn something new, or consider other viewpoints than my own. Even from someone in an adversarial position.

  22. Jason Cherniak says:

    If CBC were to actually sue, couldn’t the Conservatives use section 2 of the Charter to argue that the list has to be expanded? It would be similar to how Section 15 was used to expand human rights codes.

    On a side note, I once did a YouTube ad that included a clip of Stephen Harper referring to “so called greenhouse gases” in his 2007 end of year press conference. CBC claimed that I was infringing copyright, I objected and nothing happened. Today, though, I suspect that YouTube would have pulled it immediately just because of the claim.

  23. Thanks for that comment, Jason — it’s comforting to see that the CBC is apolitical in its stance on copyright.

    Too many folks play politics on this issue.

  24. More news
    From the “starving artists”:

    Could someone please help him unload that shack… he needs to buy food…


  25. Steve C.
    I think the oldguy has a good point…why make a law, and then create ‘categories’ that are ‘exempt’ from it. I know ambulances are allowed to speed, but they would pass a ‘fairness test.’

    “This drives directly to the heart of one of your own concerns with C32, the extension of the qualifying categories to include education, and others. Perhaps the best idea is to eliminate the qualifying categories completely, and jump straight to the fairness test? That would satisfy the existing Conservative quandary, bring the law closer to the more flexible US one, and eliminate your concerns about education being included as a qualifying category in C32 “

  26. Steve C.
    Perhaps, but while the ambulance was waiting to hear from the courts if they did in fact pass the fairness test, how many people would need to take a taxi to the hospital?

  27. ….

    Definitely I can foresee the situation where a “starving artist” will die of hunger while the courts are doing the fairness test.

    We should have instead an expedited process where, when hunger strikes, the artist himself can bypass the court and declare anything he wishes “unfair”.


  28. categories and the fairness tests
    Keep in mind that the “fairness test” is currently a court “test” to determine if the use is fair. This test is applied after the use is determined to be within one of the “categories” defined in the act.

    In the case under discussion, it might very well take a court case to decide if the use even falls under one of these categories. It then might fail or pass the “fairness” tests if it falls under one of these categories. My personal opinion is that it would pass the fairness tests, but might fail to fit under one of the the categories allowed to proceed to the tests.

    The ultimate determination of the use falling under “fair dealing” is not the categories, but the tests. These test are currently applied in a court. If the tests are properly codified within the act itself, categories can become largely irrelevant. It would simplify court proceedings and might very well speed up the process.

    It would also bring the advantage of aligning Canadian law with US law, reducing some of the confusion. Confusion that seems to reach everywhere, even into the ranks of the Conservative party.

  29. Careful how you use crticism
    The criticism category is not intended to be taken out of context — it refers to fair dealings which involve use of a work in order to criticise that work and/or the ideas in that work.

  30. b
    So, cut to the chase. What impact will this new fair dealings interpretation have on the average teen that shares files P2P, clips,documentaries and so on. Are they going to be subjected to huge law suites by US film makers attorney’s and or include IP carriers in this country and instruct them to control what their customers can or cannot download? This, I believe is the “Big question” that has yet to be directly addressed. This thought is scary. Big Brother.

  31. Jack Robinson says:

    ‘Fair Dealing’ in New Rome North… Or yet more Pre- Election Mind Fug?
    Jeepers creepers… ‘Seems to me that every time I get lured to this site… I find the same, albeit sincere cacophony of outrage over the Harper Cabal’s attempts to snuff out legitimate public debate and criticism in ANY MEDIA FORUM… whilst pathetically strait-jacketed with arcane and counter-productive nuances of legislative procedural claptrap.

    Face The Beast you purport to abhor and recognize that the only way to prevent our cardigan-clad Caligula from criminalizing all of us for freely exchanging knowledge, creativity and grassroots opinions on-line; destroying the CBC and it’s non-partisan critics; hoarding vital information that compels them by constitional mandate to be ACCOUNTABLE to both Parliament and the electorate that they are Democratically responsible to and, most of all… by their actions over the past five years confirming even to the most obtuse an UTTER DISDAIN for all of the above.

    Screw Facebook narcissism and Twitter dumb thumb idiot connectivity. Blast yer irate asses off the cozy couch of ‘clued-in’ compancency and get out there and actually DO SOMETHING!!!

    A Guy Fawkes Kinda Guy At-Large