Fair Dealing by Giulia Forsythe (CC BY-NC-SA 2.0) https://flic.kr/p/dRkXwP

Copyright

CBC News advertising board, CBC Broadcast Centre, Toronto, Southern Ontario, Canada by Pranav Bhatt (CC BY-NC-SA 2.0) https://flic.kr/p/9HBz23

Broadcaster Copyright Misuse and Collusion?: Why Criticism Over the Government’s Political Ad Copyright Exception May Be Pointed in the Wrong Direction

The Canadian Thanksgiving weekend featured escalating rhetoric over the government’s proposed copyright exception for political advertising with claims of fascism, censorship, expropriation, and more. The commentary bears almost no relationship to reality. The truth is that the government and the broadcasters both agree that the current law already permits use without authorization. For all the claims of “theft”, the copyright owner (broadcasters) and user (political parties) both agree that the works can be used without further permission or payment. As Ariel Katz points out this morning, the bigger issue may well be whether Canada’s broadcasters violated the Competition Act by conspiring to not air perfectly lawful political advertisements.

I wrote about the controversy in my weekly technology law column (Toronto Star version, homepage version), but the debate can be boiled down to three issues.

October 14, 2014 — 22 comments — Columns

New Copyright Exception for Political Advertising, Presentation by Minister of Canadian Heritage

The Government’s Political Advertising Copyright Exception: Fine Print Shows Proposal Privileges Politicians’ Speech Rights Over the Public

Last night I posted on reports that the Canadian government is considering a new copyright exception for political advertising. While many have been harshly critical of the plans, I’ve noted that political speech is critically important and that copyright law should not be used to stifle it. My post argues that the law may already cover some of the uses and that if changes are needed, a better approach would be to adopt a fair use provision in Canada.

I have now obtained a copy of the document that was presented by the Minister of Canadian Heritage. The document is obviously consistent with the media reports, but provides significantly more detail and raises several additional questions and concerns.

October 9, 2014 — 10 comments — News

Why Isn’t Fair Dealing Enough?: Government Considering Copyright Exception to Cover Political Advertising

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.

October 8, 2014 — 15 comments — News

Vice President Biden Swears in Bruce Heyman as the U.S. Ambassador to Canada by Department of State (U.S. Government Work) https://flic.kr/p/muidu1

Why U.S. Pressure Is Behind the Stalled Canadian Anti-Counterfeiting Bill

Last year, the federal government trumpeted anti-counterfeiting legislation as a key priority. The bill raced through the legislative process in the winter and following some minor modifications after committee hearings, seemed set to pass through the House of Commons. Yet after committee approval, the bill suddenly stalled with little movement throughout the spring.

Why did a legislative priority with all-party approval seemingly grind to a halt?

My weekly technology law column (Toronto Star version, homepage version) suggests that the answer appears to stem from the appointment of Bruce Heyman as the new U.S. ambassador to Canada. During his appointment process, Heyman identified intellectual property issues as a top priority and as part of his first major speech as ambassador, singled out perceived shortcomings in the anti-counterfeiting bill.

September 2, 2014 — 7 comments — Columns

europe infinite copyright by Jose Mesa (CC BY 2.0) https://flic.kr/p/amMHBV

How Canada Shaped the Copyright Rules in the EU Trade Deal

In late December 2009, Wikileaks, the website that publishes secret government information, posted a copy of the draft intellectual property chapter of the Canada – European Trade Agreement (CETA). The CETA deal was still years from completion, but the leaked document revealed that the European Union envisioned using the agreement to mandate a massive overhaul of Canadian law.

The leak generated concern among many copyright watchers, but when a German television station leaked the final text of the agreement last week, it contained rules that largely reflect a “made-in-Canada” approach. Why the near-complete reversal in approach on one of the most contentious aspects of a 500 page treaty?

My weekly technology law column (Toronto Star version, homepage version) notes the starting point for copyright in CETA as reflected in 2009 leaked document was typical of European demands in its trade agreements. It wanted Canada to extend the term of copyright to life of the author plus 70 years (Canada is currently at the international standard of life plus 50 years), adopt tough new rules for Internet provider liability, create criminal sanctions for some copyright infringement, implement new rights for broadcasters and visual artists, introduce strict digital lock rules with minimal exceptions, and beef up enforcement powers. In other words, it was looking for Canada to mirror its approach on copyright.

August 21, 2014 — 7 comments — Columns