Canadian Election Gets Ugly: CBC Sues the Conservative Party

As we head into the final stretch of the Canadian election, things got ugly after the CBC sued the Conservative party for copyright infringement.

In the last couple of days, we’ve been keeping an eye on the Conservative party website. The reason is that we’ve been waiting to analyze the party’s platform like we’ve done for the other parties. While we’ve been infrequently checking the site, we saw something unexpected pop up. The party says that they’ve received notice from CBC lawyers that they intend on suing the party for copyright infringement.

Keeping in mind that the Conservative party would be a defendant in the case, we see the following comments:

The 17 seconds of CBC clips in the video included Andrew Coyne highlighting how Justin Trudeau broke the law, Justin Trudeau telling a Canadian war veteran that he is “asking for more than we can give right now”, and one CBC reporter questioning why the Liberals provided Loblaws with $12 million in tax dollars to install new refrigerators.

CBC is a taxpayer-funded entity, tasked with covering this election fairly and objectively. Canadians pay the funding CBC receives. Canadians pay the salaries for those employed at CBC. Simply, Canadians own CBC.

When you are funded entirely by taxpayer dollars, taxpayers should be able to use the footage.

The Copyright Act provides for fair dealing.

The ad has since been removed, but Freezenet was able to find a copy of the ad in question to independently verify this. Essentially, the ad in question features a number of short snippets of various reporters stating various facts and opinions about various political scandals of the Liberal party. The ad features reporters from CTV, Global, and CBC making various comments. So, it’s a broad range of coverage sources as far as major broadcasters are concerned. There is no word that other broadcasters are suing, only the CBC.

So, all day yesterday, it felt like we were trying to piece together a puzzle with major chunks missing. We’ve heard from one side of the argument and we’ve seen the clip so far. A major piece that is missing is the complaint itself.

While we were looking and waiting, we decided to refresh ourselves on moral rights in Canada because it was looking increasingly likely that this would be what a case like this centred around. This is what we saw:

Section 28.1 and Section 28.2 lay out the definition of moral rights infringement. Infringement includes any act or omission that is contrary to the moral rights of the author in general. The integrity of the work is infringed if it is to the prejudice of the honour or reputation of the author; distorted, mutilated or otherwise modified; or used in association with a product, service, cause or institution (known as the right of association). It is not an infringement of the moral work to physically change the location of the work or to restore or preserve the work in good faith

So, in continuing with this rather interesting odyssey, we can start seeing probabilities of where such a case could head. The clips used in the ad were short snippets. If they basically wound up being just words stitched together to say something completely different, you could very easily make the case that it was distorted, mutilated, or otherwise modified. From what we saw in the clip, that didn’t happen. So, we can eliminate that as a possibility.

Another possibility is that it was used to prejudice the honour or reputation of the creator. The problem with that argument in the context of this case is that this is clearly not the intent of the work. It is an attack on another political party. If anything, it shows reporters stating facts or casual observations. So, that angle is extremely unlikely.

This leaves right of association. In the context of not seeing the complaint, this strikes us as the most likely cause for the complaint. The clips were used to benefit the Conservative party. That ad, in general, is a product of the Conservative party. So, the fact that news snippets were used to become part of a product of the Conservative party could be the CBCs strongest argument out of the three. This is not to say that the CBC has a case, but in the absence of seeing the complaint, objectively, this looks like the most likely reason for sparking a complaint.

While we were brushing up on moral rights in Canada and attempting to guess what sparked the complaint, later on in the afternoon, we actually saw Michael Geist pick up on the story. Geist was able to get a copy of the complaint. That complaint was posted to ScribD. The complaint names the CBC, John Paul Tusker, and Rosemary Barton as the applicants.

From there, the complaint is seeking an injunction to further disseminate the ad in question and bars the defendants from further disseminating the ad in question (which, to our knowledge, the party complied with. The complaint later confirmed that they did on October 10.). What is also being sought is the cost of the proceeding on a substantial indemnity scale among other things.

The complaint identifies, if we are correct, 5 clips in the video from various segments at various times in the ad.

From there, the complaint goes on to identify the Conservative party Twitter feeds and says that the party used excerpts from the leaders debate. They identify three tweets published on October 7 containing excerpts from the leaders debate. The complaint then identifies a tweet published on October 8 also from the leaders debate. After that, the complaint then says that the tweets were removed on October 10.

The statement from the Conservative party seemed to only reference the ad and not the leaders debate tweets. This is, of course, based on how we read everything so far.

So, looking at paragraph 34 and 35, the complaint seems to be leaning towards moral rights as we figured in our analysis above. We thought it is because the clips were used as part of a product of the Conservative party. The complaint says that the clips took advantage of the skill of the journalists and used it for partisan purposes. The wording may be different, but the idea is pretty much the same. The complain then says that because it’s for partisan purposes, the use does not qualify for fair dealing.

From there, the complaint in question then says that the clips in question represent a “qualitative significant portion” of the video’s. The longest clip in the complaint is 42 seconds long. This is from the leaders debate. So, we did some digging and found an online version of the debate in question. The debate itself is about 2 hours long. There is 120 minutes in two hours. There is 7200 second in 120 minutes. So, the argument looks like it is saying that 0.583% of the original work is considered a “significant portion”. That, unless we are missing something, is the best case scenario argument for the CBC. For us, how an argument that says 0.583% represents a significant portion of the work not getting laughed out of court would be mystifying.

Ironically, the complaint then suggested linking to the material in question which would be referring to the whole work. On point number 38, the complaint leaves the door open for other clips that could have been used. They are seeking to name those instances as copyright infringement as well. Generally speaking, if one were to try and push for a copyright infringement lawsuit, you want to put forward the best examples you can find to help you win your case. From a strategy perspective, it doesn’t exactly make a whole lot of sense to simply use weak arguments from the get go and save bigger examples for later. What happens if the judge simply throws out your case at the first opportunity? Are you going to risk irritating the judge by constantly coming back with more examples? That’s a hard thing for us to see.

Paragraph 39 and 40 talks about how the CBC has enacted its “Journalistic Standards and Practices” (JSP) on itself. This is in response to the Broadcasting Act. They then cite the JSP as saying that the coverage would be fair and balanced. That, of course, is a curious argument. Why not simply cite the Broadcasting Act instead of the JSP if we’re talking about laws being broken here? While we aren’t saying there’s anything wrong with the JSP, in the context of the law, it’s puzzling why it’s being used as a defence for the complaint.

The complaint then goes on to say how the fairness and unbiased reporting requirement is somehow compromised when it is being used in an political attack ad. Of course, anyone who is seeing these ads can reasonable expect to know that this is an attack ad and not something being endorsed by the journalists themselves. In light of that, it’s a pretty hard argument to make in our view. As such, the additional argument that the clips would diminish the reputation of the CBC is also quite a stretch if you ask us.

Another interesting point is found on paragraph 56 and 57 saying that they sent the demands to the defendants on October 7 (and again on October 8), but the material remained online up to October 10 at 9AM. What isn’t mentioned is the time that those demands were sent. So, let’s say that the demands were sent at the end of the day on October 7 at the end of the business day. Someone on the other side might not have had access to the demands until the morning of October 8.

So, that day, defence lawyers could be contacted to try and figure out what would be the best course of action. That puts the timeline to October 9 which would be reasonable for how long a decision could be reached. A decision is reached by the end of October 9 which says that the material should be removed for the time being. That pushes things to October 10 where the material is removed by 9AM. That, to our best judgment, is a timeline that makes sense and not exactly “maximizing” the use of the infringing material as paragraph 58 suggests. As such, that is also a pretty hard argument to make.

Later on in the complaint, there is mention of previous actions taken by the complaining party. Essentially, cease and desist orders were sent to the party with a similar situation. The material was eventually taken down after a second cease and desist order. It looks like the complainant is trying to establish a behavioural pattern. The problem might come in the form of relevance. Is the complaint about the material in question on September or is it about the material mentioned in October? At best, this looks like an attempt to establish that the party knew about these issues beforehand. The thing is, a complaint might not actually answer all the legal questions in the first place. What if the complaint wound up being frivolous in the first place? There’s no real way to establish that based on a cease and desist order and compliance.

So, having finally gotten a reasonably complete picture of the case, it’s much more difficult to side with the CBC on this one than the Conservative party. The strongest argument from the CBC seems to revolve around the nebulous idea that journalistic integrity is compromised because the footage is used in the context of a political attack ad. On the other side, you have the Conservative party using small excerpts for the purpose of criticism or review. The attack ad clearly shows a montage that reviews different items and is designed to paint a picture (an ugly one) of Justin Trudeau. This strikes us as a pretty obvious example of Fair Use. From Wikipedia:

Criticism and review involve analyzing and judging merit or quality. The dealing may even be defamatory while remaining a fair dealing. The key is that fairness relates to the extent, rather than the content, of the copying. With respect to criticism, greater emphasis will be placed upon the transformative nature of the copy.

It appears that Michael Geist, while discussing the lawsuit, pretty much says the same thing about the lawsuit:

The CBC argues that these uses constitute copyright infringement and do not qualify as fair dealing. Its claim is based on an odd collection of unconvincing arguments, including the notion that clips from the debate might lead someone to think that the CBC is biased, contrary to its obligations under the Broadcasting Act. The lawsuit notes that this is not the first time the CBC has claimed copyright infringement with Conservative ads, citing a 2015 claim.

The CBC obviously has rights as the copyright owner in its broadcast, but those rights are constrained by limitations and exceptions under the law that allow for use of its work without the need for further permission. The CBC itself (like all broadcasters) regularly relies upon those exceptions to use the work of others without permission. There are strong fair dealing arguments in favour reasonable usage. Moreover, the claim over short clips over debate footage is enormously troubling, considering both the importance of broad dissemination of the debate and the fact that the debate involves little specific contribution for any individual broadcaster. CBC has an unfortunate history of overzealous use of copyright to stifle freedom of expression and that approach appears to have reared its head yet again as the 2019 campaign hits the home stretch.

For us, there is also the implication this has on free speech. If I’m doing a tear down of what was said in the debates in video format, could I be sued for copyright infringement because I used clips for illustrative purposes? We’re here as a neutral third party trying to figure out who stands where on specific issues. Conversely, should I have the power to say that fair dealing does not apply if I don’t like a different third party? If anything, that would weaken any thought or argument we make because, suddenly, we can’t handle criticism ourselves. In this case, for the sake of free speech, we hope that the CBC doesn’t win on this one. It could set a pretty negative precedence for the future of Fair Dealing.

Drew Wilson on Twitter: @icecube85 and Facebook.

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