Having discussed the importance of fair dealing for creators in yesterday’s post, today’s case looks at the link between freedom of expression and fair dealing. A recent case involving the Vancouver Aquarium placed the spotlight on how fair dealing can be used to safeguard freedom of expression, even when (indeed particularly when) a rights holder may prefer to use copyright to block the expression. In 2015, two film makers created a documentary on the Vancouver Aquarium called “Vancouver Aquarium Uncovered.” The film, which can now be viewed online, focuses on whales and dolphins in captivity. The Vancouver Aquarium filed a copyright infringement action, seeking to have the documentary removed from all public viewings and the deletion of photos and video clips shot at the aquarium.
While a trial judge remarkably granted an interlocutory injunction, last year the B.C. Court of Appeal set it aside. Fair dealing and safeguards for non-commercial user generated content played an important role in the decision, with a unanimous court stating:
Fair dealing is not considered a defence, but an integral part of the Copyright Act: CCH at para. 48. It is more properly characterized as a “user’s right.” An act that is captured by the fair dealing provisions of the Act will not infringe copyright. As noted above, s. 29 of the Act sets out fair dealing for the purpose of research, private study, education, parody or satire, and use in that context does not infringe copyright. Section 29.1 exempts fair dealing for the purpose of criticism or review, and s. 29.2 exempts news reporting. Section 29.21 exempts non-commercial use, with specified conditions.
In order to sustain the balance between the users’ rights and those of the copyright owner, fair dealing “must not be interpreted restrictively”: CCH at para. 48. CCH addressed research in the context of headnotes and other additions by publishers to judgments, and whether permitting photocopying at a law library fell within the research exemption in fair dealing. In concluding that it did, McLachlin C.J.C. concluded that “research” was to be given a large and liberal interpretation to ensure that users’ rights are not “unduly constrained”: para. 51. It is not limited to non-commercial or private contexts.
The court did not issue a definitive conclusion – it limited its discussion to agreeing that fair dealing was not properly assessed at trial – the role of fair dealing and freedom of expression was crucial in the decision to set aside the injunction. Indeed, the court concluded:
Evotion created the documentary to contribute to the conversation on the social and political issue of keeping cetaceans in captivity. This is an unusual copyright case in that the injunction will, in part, silence criticism of the Aquarium and potentially stifle public debate on a topic of great interest to the community. In addition, the Aquarium is not seeking to protect works that are being unfairly used to profit others, such as was alleged in SOCAM.
On the other hand, it is clear that the debate regarding cetaceans in captivity continues, despite the injunction. It is a matter of public record that the Vancouver Park Board, earlier this year, voted to ban the bringing of new cetaceans to the Aquarium. More litigation may ensue from this, so no more need be said.
The engagement of s. 2(b) in the analysis also responds to the concerns of Animal Justice in terms of bringing the issue of cases of animal cruelty to the public’s attention. In my opinion, the balance of convenience lies with Evotion. The film is part of a public dialogue and debate on the issue of whether cetaceans should be kept in captivity, and thus, the Charter value of freedom of expression must weigh against granting the injunctive relief.
Critics frequently claim that licensing can adequately substitute for fair dealing, but the Vancouver aquarium case provides an important reminder that sometimes no amount of money will lead to a licence since rights holders seek to use the law to silence others. Fair dealing is an essential safeguard for freedom of expression since it is available as a user’s right without need for permission from the copyright owner.