This week my regular technology law column (Toronto Star version, homepage version) focused on the long election campaign and the prospect that digital issues might get some time in the spotlight. The column pointed to three broad themes – what comes after Bill C-51, the Trans Pacific Partnership, and a digital strategy 3.0. As part of the digital strategy discussion, I stated that questions abound, including “are new regulations over services such as Netflix on the horizon?”
Prime Minister Stephen Harper addressed that question yesterday with a video and tweet in which he pledged that the Conservatives will never tax digital streaming services like Netflix and Youtube. Harper added that the Liberals and NDP have left the door open to a Netflix tax, but that he is 100% opposed, “always has been, always will be.” Both opposition parties quickly responded with the NDP saying they have not proposed a Netflix tax and the Liberals saying they have never supported a Netflix tax and do not support a Netflix tax.
So is this much ado about nothing?
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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.
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Reports from CTV and the Globe and Mail indicate that the government is planning to introduce a new copyright exception for political advertising. The reports suggest that the exception would permit the use of news content in political advertising without authorization provided that it meets three conditions:
News content would have to meet three criteria for this exemption, the cabinet memo says. It would have to be published or made available through TV broadcasts or platforms such as YouTube. It would have to be obtained from a news source such as a news program or newspaper or periodical. And it would have to feature a political actor operating in that person’s capacity as a politician, or relate to a political issue.
While the reports sparked an immediate reaction claiming the government is legalizing theft, my view is that copyright law should not be used to stifle legitimate speech. Political speech – even noxious attack ads – surely qualifies as important speech that merits protection (see this CDT analysis for similar concerns in the US). I am not a fan of attack ads, but attempts to use copyright to claim absolute rights over the use of a portion of a video clip is surely counter to basic principles of fair dealing (in Canada) or fair use.
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Last night’s Republican presidential candidate debate featured a question on SOPA, leading all four remaining candidates to register
their opposition to the bill. Their positions are consistent with the growing trend on the right in the United States as it the Republicans that are increasingly opposed
to SOPA and PIPA with Democratic supporters left to wonder
why their representatives remain so out-of-touch with the popular view of the public (this morning Democrat Senator Reid announced
a delay in the vote on PIPA). In fact, it isn’t just Republican politicians who are opposed to overbroad copyright reforms: the right-leaning press
and conservative think-tanks
are expressing the same views. None of these groups or politicians can be accused of being soft on crime or weak on intellectual property. Rather, they recognize the need for government to tread carefully and to ensure that legislative initiatives do not undermine basic freedoms and personal property rights.
The opposition to SOPA is not limited to the right in the United States. In Canada, Blogging Tories, which aggregates dozens of right-leaning blogs, went dark in support of the SOPA protest and the National Post was the only major Canadian paper to publish an editorial on the issue, concluding:
On Wednesday, Wikipedia and a handful of other sites will shut down in protest of SOPA and PIPA. They have our full support. Governments should not be in the business of propping up outdated business models, nor of blocking legitimate speech. This draft legislation would do both.
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