The CBC decision to sue the Conservative Party for copyright infringement over seven clips that were either used in a campaign ad or posted to Twitter has unsurprisingly garnered considerable attention. While the CBC claims that its lawsuit was designed to defend perceptions of independence of its journalists and journalism, the opposite has predictably occurred with many believing that the lawsuit itself (filed eleven days before the election after the content was removed) demonstrates bias against the Conservative party. Not only does the lawsuit fuel perceptions of bias, but it causes enormous damage to CBC journalists – Rosemary Barton and John Paul Tasker – who are both named as plaintiffs in the lawsuit. The CBC now says it will file an application to remove them from the suit, but it is hard to understand how anyone at the public broadcaster thought it was a good idea to have one of its lead news anchors and a parliamentary reporter sue a political party.
Beyond the strategic blunder, CBC’s legal arguments are very weak. The Conservatives considered a copyright amendment in 2014 that would have created an exception for political parties to use news clippings. I argued then that it was unnecessary since fair dealing would cover reasonable uses without the need for permission from broadcasters. The Conservatives ultimately dropped the idea, but fair dealing remains in place. In fact, the Supreme Court of Canada just issued a ruling last month that again strongly affirmed users’ rights and the need for balance in copyright. In this particular case, the Conservatives will presumably argue that the use of the short clips – which include attribution through the digital mark on each clip – easily qualify as fair dealing.
Not only are the CBC’s copyright claims tenuous, but reviewing the clips makes the decision to sue even more puzzling. At issue are seven clips, three of which were taken directly from the English-language leaders’ debate on October 7th and posted as short videos on the Conservative Party’s Twitter account. In other words, the clips did not appear in a campaign commercial at all and it is not credible to suggest that the clips somehow implicate CBC journalism or journalists. If anything, the public should be encouraged to watch, use, or re-use footage from the only English-language leaders’ debate in the entire 2019 campaign.
The other four clips appear in a campaign commercial that was removed by the Conservative Party but can viewed here. One of the clips features two short segments (total of ten seconds) of Prime Minister Justin Trudeau at a town hall event. There are no CBC journalists involved, though the town hall aired on the CBC. Displaying ten seconds from a town hall that ran over an hour hardly qualifies as a significant portion of the work and again does not implicate CBC journalists or journalism.
The remaining three clips do include CBC journalists. One involves four seconds of Andrew Coyne speaking on the At Issue Panel on conflict issues. Rosemary Barton appears in the clip (as does Chantal Hebert) but says nothing. The clip should qualify as fair dealing, but it is difficult to see what the fuss is about given that Barton does not even speak in it. Another clip involves five seconds of John Paul Tasker appearing on Power and Politics discussing support to Loblaws for energy efficient refrigerators and the last one features five seconds of Rex Murphy talking about moving expenses. The clips are short and demonstrate that CBC journalists engage in legitimate critique of government policies and action. That isn’t bias, that is doing their job. Indeed, all these stories were widely covered in the media and there is nothing particularly controversial about what is said in the clips.
I think the clips all certainly qualify for fair dealing, but the larger question is why the CBC thought it necessary to issue takedown demands followed by a full lawsuit seeking a court-ordered injunction. That decision not only demonstrates a fundamental misunderstanding of the law of copyright, but also presents a troubling view of a public broadcaster determined to police all uses of its work. I’ve long argued that the CBC should be adopting the opposite approach, by using open licensing to encourage uses of materials for which the public has ultimately paid. In fact, the Liberals’ platform envisions requiring the CBC to share its digital platform with journalism start-ups and community newspapers. If this ill-advised lawsuit is any indication, CBC executives have something far different in mind.