Thursday, December 11, 2008

Parody Defence Not Available according to BC Court

The Tyee reports on a copyright case involving alleged infringement of a Canwest newspaper in which the defendant pleaded that the material was a "parody."

This defense was struck out at a very early stage by a BC Supreme Court Master in this ruling that parody was not available as a "fair use" [sic] defense under the Copyright Act, based upon the Michelin decision of 1996. The Master's ruling is being appealed.

Prof. D'Agostno has publshed a lengthy analysis of the SCC's CCH decicsion in which she twice states that, in light of the 2004 CCH judgment from the SCC, the Michelin decision "no longer seems to be good law." Unfortunately, the Courts don't seem to be agreeing with her.

I hope she is right and there is, indeed, recent SCC jurisprudence since her paper boosting freedom of expression in Canada in the defamation context.

But I disagree with her that the CCH decision means that no legislation is necessary. I've published a paper recently entitled "Why Canada Needs Parody Parity and Comedy Comity: Copyright Control of Canadian Humour" in Vol. 20 No. 3 (October 2008) of Les Cahiers De Propriété Intellectuelle in which I said:

I strongly disagree with Prof. D'Agostino's position that we do not need legislative intervention in this instance. It is primarily the responsibility of Parliament, and not individual litigants, to take the necessary steps to provide clear and predictable laws in Canada. The current Bill C-61, for example, would provide a dream list of new, overreaching and unnecessary rights for content owners. Unfortunately, there are no highly paid lobbyists fighting for creators and users who strongly need a satire and parody right in Canada. When Parliament proceeds with copyright revision, a satire and parody right should be included. It would even be justifiable on its own, if a larger package does not proceed in the near future.

Test case litigation is not an answer in this situation. There are major costs risks in seeking a ruling from the Federal Court of Appeal or another appellate court that parody is now included in fair dealing and is therefore a user's right in Canada. While there is reason to hope that this would be the result of such litigation, one cannot count on this being the case. There were serious splits on copyright doctrine that were exposed in the Supreme Court's Kraft decision in 2007.

Moreover, the recent retirement of Justice Bastarache and the imminent appointment of new Justice on the Supreme Court thereby ensure even more post-Kraft unpredictability if the case were to get that far. Furthermore, well and thoroughly fought copyright litigation is quite rare in Canada and there is no guarantee that the
"right" case will arise in the foreseeable future. In terms of how it may arise, it may not be necessary to wait for a lawsuit to be launched by an aggrieved rights holder, since pre-emptive litigation is now possible in principle. However, pre-emptive copyright ligation is rare, risky and expensive. In any event, resolution of the parody issues in the Canadian courts at an appellate level will take several years from whenever a test case is started.
I'm afraid that the BC ruling illustrates my point. This issue is much to important to be left to the vague uncertainties of the trial courts and the often limited resources of defendants. Legislation providing a satire and parody exception is necessary and should be an important part of whatever copyright bill may emerge in these uncertain times.



  1. Despite my collegial invitation to Howard Knopf to share with me any comments that he might have had on my report, I’m afraid that he did not take me up on my offer and has now misunderstood my article and reflected this misinterpretation in his own publication. I hope this is a case where interested readers may go directly to the source and read my work for themselves. My peer-reviewed article has been updated and published in the McGill Law Journal: (while indeed lengthy, the crux of it is summarized in the abstract).

    In this paper I DO NOT make the argument that legislative intervention is not necessary. My article was on fair dealing generally and not on parody in particular. What I did argue is that irrespective of legislative intervention taken or not taken, it is crucial to begin to think beyond just legal reform. Best practices should be developed from the ground-up to clarify fair dealing practices for all, especially the user and creator communities. As Professor David Vaver maintains if the laws do not “sing” and are not clear to the public then what good are they? It is here where US initiatives, namely led by Professor Peter Jaszi and colleagues should be emulated. I fully endorse these best practices or guidelines developed from the grass-roots. Among the various benefits, these efforts can help ease access to justice issues where often only the richer claimants can litigate their cases in order to get clarity in the law, if any. In Canada, I understand that the University of Ottawa is leading the way with respect to documentary film-makers and I believe this to be the way forward -- especially now I might add, given our current economic downturn where copyright issues may not be at the fore of government priorities.

    Giuseppina D’Agostino

  2. Thanks, Pina. I've posted a reply that was too long for a comment here: