Last week, the Conservative party posted an offensive advertisement on YouTube and Facebook titled Justin Trudeau on ISIS. The ad starts with ISIS music and images of prisoners about be drowned or beheaded before running short edited clips from a 13 minute interview with Trudeau and the CBC’s Terry Milewski. The advertisement has rightly generated a backlash with questions about whether it violates Bill C-51’s prohibitions on terrorist propaganda. Conservative Party campaign spokesman Kory Teneycke argues that it is little different than newscasts involving ISIS, but watching the combination of music and imagery, it clearly goes well beyond conventional news reporting on ISIS. Indeed, even if it fall short of violating Bill C-51, the ad is in terrible taste, treating images of victims as mere props for political gain.
Beyond the C-51 issue, the CBC waded into the issue late on Friday, as Jennifer McGuire, the CBC News Editor-in-Chief, posted a blog indicating that the broadcaster has asked YouTube and Facebook to take down the ad. The ostensible reason? Copyright. The CBC has again raised the issue of re-use of news coverage in political advertising, claiming that it is determined to limit re-use since “our integrity as providers of serious, independent coverage of political parties and governments rests on this.” In light of this position, the CBC says its guiding principle is:
No one – no individual candidate or political party, and no government, corporation or NGO – may re-use our creative and copyrighted property without our permission. This includes our brands, our talent and our content.
The CBC is simply wrong. Its guiding principle is wrong and its attempt to use copyright to take down an offensive advertisement is wrong. The claim brings to mind the story from last fall involving a government proposal (that was shelved) to create a specific copyright exception for the use of news content in political advertising.
I argued then that no exception was needed because copyright already provides latitude for political parties to use works without permission. That is because copyright does not provide the absolute rights suggested by the CBC. The CBC obviously has rights as the copyright owner in its broadcast, but those rights are constrained by limitations and exceptions under the law that allow for use of its work without the need for further permission. The CBC itself (like all broadcasters) regularly relies upon those exceptions to use the work of others without permission. Similarly, I just used the exceptions to quote the CBC policy in this blog post without their permission.
In this case, there are several arguments that the use is permitted under the Copyright Act. First, the clips run for about 22 seconds out of a 13 minute interview. As the Copyright Board of Canada discussed in a recent decision, an infringement claim only arises where the copying involves a substantial part of the work. By implication, an insubstantial amount does not give rise to a copyright claim. The Copyright Board ruled that 2.5% of a written work was insubstantial. In this case, the total of 22 seconds are about 2.8% of the total interview. There is a plausible argument that the clips involved are insubstantial and do not even trigger a copyright claim.
Second, in the event that the clips are viewed as a substantial part of the work, there are exceptions that may apply. The most important is fair dealing, which is the Canadian equivalent of fair use. Fair dealing involves a two-step test. The first is whether the dealing or use is for an appropriate purpose. This requires one of the purposes in the Act: research, private study, news reporting, criticism, review, education, parody, or satire. In this case, criticism, research (on Trudeau’s political positions), or even news reporting (of those positions) might apply. The second part of the test involves an examination of six factors: the purpose or goal of the dealing, the character, the amount copied, alternatives, the nature of the dealing, the its effect (which often involves consideration of the economic impact). Given the qualifying purpose, the limited amount copied, the lack of alternatives, and the limited economic effect, there is a strong fair dealing argument here.
In fact, there are other exceptions that might also apply, including the new non-commercial user generated content provision that is explicitly designed to allow for the use of copyrighted works to create new works for non-commercial purposes. The UGC provision is available to individuals (which might preclude its use by the Conservative party), though there is an argument that the four criteria can be met and the person who created the video can rely on the exception.
The CBC could raise some interesting moral rights arguments to counter the exceptions (if their employees have not waived their moral rights). However, the larger point is that its claim that no one can use any clips of its broadcasts without permission is inconsistent with the state of the law. There is much to criticize about the Conservatives’ ISIS ad, but copyright isn’t one of them.