This week the Conservative party began airing a series of ads criticizing the opposition, including three that included short video clips from a CBC program.  The CBC has objected to the use of the footage, stating that its material should not be used in partisan advertising and noting that the Conservatives did not ask for permission to use the clip.  The Conservative party has responded by arguing that the use is covered by fair dealing and that no permission was needed.  According to the Fred DeLorety, the director of communications for the party, “It’s free speech. It’s free use.” To support its position, the Conservatives point to the use of a similar clip by C-SPAN in the United States under its fair use rules.  The argument seems to be that if it is fair use in the U.S., surely it is fair use (or dealing) in Canada (Stephen Taylor makes the same point in criticizing the CBC for not having a better grasp of fair use).

The problem with this argument is that is mistakenly presumes that the U.S. fair use provision covers the same ground as Canadian fair dealing.  It doesn’t.  Indeed, this is precisely why many have argued for a flexible fair dealing provision, which unfortunately is not found in current Copyright Act or in Bill C-32.

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