Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP

Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP


Why Isn’t Fair Dealing Enough?: Government Considering Copyright Exception to Cover Political Advertising

Reports from CTV and the Globe and Mail indicate that the government is planning to introduce a new copyright exception for political advertising. The reports suggest that the exception would permit the use of news content in political advertising without authorization provided that it meets three conditions:

News content would have to meet three criteria for this exemption, the cabinet memo says. It would have to be published or made available through TV broadcasts or platforms such as YouTube. It would have to be obtained from a news source such as a news program or newspaper or periodical. And it would have to feature a political actor operating in that person’s capacity as a politician, or relate to a political issue.

While the reports sparked an immediate reaction claiming the government is legalizing theft, my view is that copyright law should not be used to stifle legitimate speech. Political speech – even noxious attack ads – surely qualifies as important speech that merits protection (see this CDT analysis for similar concerns in the US). I am not a fan of attack ads, but attempts to use copyright to claim absolute rights over the use of a portion of a video clip is surely counter to basic principles of fair dealing (in Canada) or fair use.

This issue arose in 2011 when the CBC objected to the use of its footage in some Conservative ads and the party claimed fair use. More recently, Canada’s broadcasters have said they will not air advertisements containing their footage without authorization. I blogged in 2011 that the problem was that Canada’s fair dealing provision was unduly restrictive and that it might not cover the use of the video clips. Since the 2011 incident, the Supreme Court of Canada has strongly affirmed the need for large and liberal interpretation of fair dealing (which it views as “user’s right”) which would allow for a fairly good argument that at least some uses qualify as fair dealing for the purposes of criticism. Whether the actual use of the clip or footage is fair dealing would depend on meeting one of the law’s stated purposes and an analysis of the Court’s six-step test that includes considerations such as the character of the dealing, how much of the work is used, the alternatives available, and the effect of the dealing on the work.

My criticism of the government here is not in seeking to protect political speech by ensuring that the law features sufficient flexibility to allow for appropriate uses without permission. Rather, it stems from the view that there are far better policy approaches available than an awkward self-interested exception.

As a starting point, I think the government should simply rely on existing law. With a robust fair dealing provision and a cap on liability for non-commercial infringement, the risk of an infringement claim is low.  This proposal may be a solution in search of a problem and we would do better to test the boundaries of the current law rather than bury an exception in a budget bill.

Alternatively, if the government is convinced that fair dealing does not fully cover political speech, the far better approach would be to establish a full fair use provision in Canada. A fair use provision offers the benefits of applying in all circumstances (not just political advertising) and would be available to all users (not just political parties and candidates). Moreover, it would ensure that usage would be subject to a fairness analysis, which this exception does not appear to do.

There were many groups that argued for a fair use provision during the last round of copyright reform and the government’s acknowledgement that there are still speech-stifling restrictions suggests that it has seen first hand how such a provision would be useful. A simple amendment in the current Copyright Act that would make the list of fair dealing purposes illustrative rather than exhaustive (the so-called “such as” reform) would open the door to fair dealing claims involving political advertising without the accompany outcry of self-interest or unfairness that even the government anticipates will arise from its plans.


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  9. Annony Moose says:

    How does the 1988 S.C. decision on the Liberal Party’s appeal re: copyright use affect all of this. I thought this ruling would be the answer?

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