The Toronto International Film Festival has removed from its 2025 schedule a documentary film by Canadian filmmaker Barry Avrich that tells the story of Noam Tibon’s mission to save his family during the October 7th attacks by Hamas in Israel. The film is based on the excellent book by Amir Timon, the Gates of Gaza, which recounts both the rescue effort and the longstanding fraught relationship between Israel and Gaza. According to Deadline, the film, titled The Road Between Us: The Ultimate Rescue, was scheduled to be included in the program announced last week. But TIFF asked that the source of Hamas body-cam footage included in the film be identified and to provide copyright clearances for the video. You read that correctly: TIFF wanted the filmmakers to obtain copyright licences from Hamas terrorists.
From a copyright law perspective, the copyright claim is so ridiculous that it hardly needs debunking and is beneath what is supposedly a credible organization that has received tens of millions in public support from the federal government in recent years. But just in case there is actually someone out there who thinks that TIFF faces a legal risk that a Hamas operative who filmed his attack on October 7th might sue it for screening a film that includes that video footage, it should be noted that such a suit would go nowhere.
The use of the clips would clearly fall within the fair dealing rules under Canadian copyright law. The Supreme Court of Canada has repeatedly confirmed that fair dealing is a user’s right that should be interpreted in a large and liberal manner. The use of clips in a documentary on October 7th would surely qualify as this would be treated as falling within one of the requisite fair dealing purposes (news reporting at a minimum) and would have no trouble meeting the six part fair dealing test (purpose, character, amount, alternatives, nature, and effect of the dealing on the work). The role of fair dealing in documentary films was examined in an Ontario case involving the film, A Room Full of Spoons, which looked at the film The Room (I discussed the case in this Law Bytes podcast episode with Bob Tarantino). The court upheld the rights of the documentary film makers, something they would certainly do in this case.
Late yesterday, TIFF CEO Cameron Bailey denied that censorship was at play here. Yet by weaponizing copyright and spurious clearance requirements, that is precisely what is taking place. The suggestion of a legal risk is a fabrication designed to limit the distribution of expression. Even assuming someone would file a claim and could legitimately assert copyright – neither of which are likely – a court would not allow copyright to be used to suppress the evidence of the crimes from October 7th nor hold the organization screening the film (not the creator of the film) liable for infringement.
TIFF executives must know this. Late yesterday, TIFF CEO Cameron Bailey asked for patience as his legal department works on finding a way for the film to meet TIFF’s screening requirements. This feels like a delay tactic. The copyright claim is a desperate attempt to justify cowardly leadership that seemingly fears protests that could accompany the film, which have nothing to do with screening requirements. The erasure of October 7th – whether on spurious copyright grounds or fears that the film would attract efforts to intimidate those attending the screenings – cannot stand. TIFF should immediately reverse its decision, support freedom of expression, and not be cowed into silencing Canadian film makers or the historical record.
