[A2k] M. Geist: Why Isn't Fair Dealing Enough?: Government Considering Copyright Exception to Cover Political Advertising

Manon Ress manon.ress at keionline.org
Thu Oct 9 11:13:11 PDT 2014


Why Isn't Fair Dealing Enough?: Government Considering Copyright Exception
to Cover Political Advertising
October 8, 2014
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

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.

This issue arose in 2011 when the CBC objected to the use of its footage in
some Conservative ads and the party claimed fair use. More recently,
Canada's broadcasters have said they will not air advertisements containing
their footage without authorization. I blogged in 2011 that the problem was
that Canada's fair dealing provision was unduly restrictive and that it
might not cover the use of the video clips. Since the 2011 incident, the
Supreme Court of Canada has strongly affirmed the need for large and
liberal interpretation of fair dealing (which it views as "user's right")
which would allow for a fairly good argument that at least some uses
qualify as fair dealing for the purposes of criticism. Whether the actual
use of the clip or footage is fair dealing would depend on meeting one of
the law's stated purposes and an analysis of the Court's six-step test that
includes considerations such as the character of the dealing, how much of
the work is used, the alternatives available, and the effect of the dealing
on the work.

My criticism of the government here is not in seeking to protect political
speech by ensuring that the law features sufficient flexibility to allow
for appropriate uses without permission. Rather, it stems from the view
that there are far better policy approaches available than an awkward
self-interested exception.

As a starting point, I think the government should simply rely on existing
law. With a robust fair dealing provision and a cap on liability for
non-commercial infringement, the risk of an infringement claim is low.
This proposal may be a solution in search of a problem and we would do
better to test the boundaries of the current law rather than bury an
exception in a budget bill.

Alternatively, if the government is convinced that fair dealing does not
fully cover political speech, the far better approach would be to establish
a full fair use provision in Canada. A fair use provision offers the
benefits of applying in all circumstances (not just political advertising)
and would be available to all users (not just political parties and
candidates). Moreover, it would ensure that usage would be subject to a
fairness analysis, which this exception does not appear to do.

There were many groups that argued for a fair use provision during the last
round of copyright reform and the government's acknowledgement that there
are still speech-stifling restrictions suggests that it has seen first hand
how such a provision would be useful. A simple amendment in the current
Copyright Act that would make the list of fair dealing purposes
illustrative rather than exhaustive (the so-called "such as" reform) would
open the door to fair dealing claims involving political advertising
without the accompany outcry of self-interest or unfairness that even the
government anticipates will arise from its plans.

Manon Ress, Ph.D.
Knowledge Ecology International, KEI
manon.ress at keionline.org, tel.: +1 202 332 2670
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