It would be a shame if this ad the CBC had removed got a bunch of views. pic.twitter.com/tUOMSFqpKV— HoCStaffer (@HoCStaffer) October 12, 2019
- the copying of less than a “substantial part” of material simply does not engage the operation of the Copyright Act;
- even if the amount copied is somehow “substantial”, and even if the plaintiff owns the copyright, the fair dealing provisions of the Copyright Act are “always available” and must be given a “large and liberal interpretation”. And by liberal, I mean the same sense as the Supreme Court of Canada, which is obviously not in the partisan sense. See, of course, CCH Canadian Ltd. v. Law Society of Upper Canada,  1 SCR 339, 2004 SCC 13; and,
- Fair dealing purposes include those of research, education, criticism, or review – any or all of which may be applicable in this case – but which need not be addressed if there is no “substantial” copying in the first place.
- The decision to name respected professional journalists Rosemary Barton and John Paul Tasker as plaintiffs either involved their consent (in which case their professional judgment would be very questionable) or did not involve their consent, in which case others may be in serious trouble. Putting somebody’s name on a lawsuit has serious consequences and requires their explicit consent. A named plaintiff is liable for costs and is subject to discovery;
Ms. Barton and Mr. Tasker, even with the embarrassing sudden about-face of their names being withdrawn from the pleading, are now inevitably compromised in their appearance of journalistic independence and their professional reputations as journalists on the eve of this historic election, unless there is an immediate flat out denial by all concerned that they consented to be plaintiffs along with an appropriate apology, and in which case there is a need for serious, decisive and immediate accountability. We have yet to see such an explicit statement. This statement by Jennifer McGuire and Luc Julien of CBC stops far short
- One hopes that Ms. Barton and Mr. Tasker have good independent legal advice and good backing from their union if it is the case that they were involuntary named or pressured to join in this litigation;
- The decision to proceed with this litigation, which is apparently being directed by Ms. McGuire (which is effectively confirmed in this Globe and Mail article from October 12, 2019) must have been approved byCatherine Tait who is the President of the CBC and presumably by the CBC Board of Directors;
- If the CBC Board of Directors wasn’t involved in a decision of this magnitude, then, if not, why not? The implications then would be even more serious for all concerned;
- If litigation of this order of magnitude can be launched without the blessing of the CBC President and its Board of Directors, that would seem to be a fatal flaw in CBC internal management and governance and there must be appropriate accountability;
- The new President of the CBC has been largely invisible since her appointment well over a year ago, with the main notable exception of her absurd comparison of Netflix to British Raj colonial imperialism in India
- Whoever forms the next government needs to think very long and hard about who will be the next president of the CBC when the office becomes open less than four years from now, if not sooner. Likewise, regarding the Board of Directors positions;
- For the enemies of the CBC, which ironically enough have included many Conservative politicians in the past and no doubt in the present, this move by the CBC is nothing less than a gift from heaven;
- This ill-conceived lawsuit could very well prove to be the catalyst to a Conservative Party of Canada minority and maybe even a majority government.
- This episode could be another step towards the CBC’s possible demise, which many would like to see, and maybe even close to the final nail in its eventual coffin, depending on who wins the election;
- At the very least, nobody can watch CBC coverage of the current election without wondering about the journalistic independence and competence of its senior management; and,
- All of this is very unfortunate. Despite the downhill spiral of the CBC under the current and previous two presidents, it still has a treasure trove of people, expertise, and archival material and must be saved and resurrected. Bad decisions, such as this litigation, must not be allowed to jeopardize such a legacy and its hopeful future resurrection. Canada without the CBC would be quite unthinkable.
- Copyright law;
- The Streisand Effect “whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet”; and,
- Governance of and by a major public broadcaster.
PS - Here's the docket.