Wednesday, October 15, 2014

Copyright, Campaigns and Lots of Other “C” Words

(Wherein Rick Mercer Goes Remarkably Rogue re Reliability and his Research Resourcefulness: Warning - this Rant is Hazardous to the State of Canadian Journalism and Rick's Otherwise Respected Role Therein) 

Countless “C” words have been in circulation re Copyright, Campaigns, a Certain Consortium, Collusion, Conspiracy, Co-conspirators,  Cartel, Censorship, Confidence, CTV, CBC, Conservatives, and Commissioner of Competition. Of course, nothing regarding the Competition Act has been proven in court or is yet anywhere even near a court as far as I know. But the most applicable “C” word of all might be “Confusion”.

I’ve been involved with copyright law for longer than I care to admit – indeed, more than three decades. But I don’t think I’ve ever seen so much confusion and just plain WRONG commentary about a copyright issue as I’ve seen in the last week of Coverage of the issue of copyright and negative political ads. 

The prize for the worst coverage of all goes, surprisingly, to someone who one would have thought would appreciate the importance of fair dealing and satire – but apparently does not. That would be Rick Mercer no less – and here’s his remarkably wrong Canard of a rant on the subject. CTV’s Question Period last Sunday wasn’t much better – despite the presence of several highly experienced and reputable journalists who one might have thought would understand the role and importance of fair dealing. Let us hope that this generally dreadful coverage is not related to the “consortium” agreement executed by senior executives of the main Canadian networks last spring, from which Sun News was notably and conspicuously excluded. Perhaps these otherwise usually reliable journalists have just drunk too much of their corporate employer’s Kool Aid over time. In any event, it’s time for some Clarity and hopefully a Conclusion.

As I suggested last week, there are potentially interesting aspects involving Canada’s Competition Act issue arising out of the “consortium” agreement led by CBC concerning the signed agreement of the major broadcast networks in Canada to “to keep news content from being used without permission”, the content being footage of politicians who sometimes say silly or embarrassing things and permission not being needed when the use of such content involves insubstantial copying or fair dealing. Such footage has become the fodder of many “attack ads”, which are hardly a new practice. As I pointed out, the Liberals successfully fought for the right to air such ads back in 1988. The CBC "consortium”, was apparently spear-headed by Jennifer McGuire in response to concerns by Peter Mansbridge about use of certain footage of him interviewing Justin Trudeau.

My friend and colleague Prof. Ariel Katz of the U of T Faculty of Law, with whom I have worked closely on a factum that was quite influential in a landmark Supreme Court of Canada fair dealing case and other issues, is an internationally recognized leading copyright scholar and Canada’s foremost expert in the interplay of IP and competition law.  Here’s his blog from October 14, 2014 entitled Attack Ads, Copyright, and Collusion: Have Canada’s Major Broadcasters Violated the Competition Act?

Prof. Katz discusses s. 45 of the Competition Act, which comes under the heading “Conspiracies, agreements or arrangements between competitors” and is perhaps the most feared and potent provision of the legislation. It is used in serious cases. It can put people in jail for up to 14 years and result in a fine of up to $25 million per count, or both, which is a very big time penalty by Canadian standards. Changes made by Parliament to the s. 45 provisions in 2009 that came into effect in 2010 may now make it easier in some circumstances to obtain a conviction. The new section provides for “per se” offences, which do not require proof that competition was lessened “unduly” and there is no need to prove any adverse market effects. There is no need to prove that the conspiracy in question was actually carried out – only that it was entered into. There’s also a less harsh new “civil” enforcement provision to be found in s. 90.1 that involves the Competition Tribunal, which may or may not be of interest in the current situation. To be crystal clear, nothing I am saying or have said accuses anyone of any offence or violation under this or any other provision of the Competition Act. I am merely pointing out that there are provisions in the Competition Act that may be relevant, depending on the facts, and that folks, including the Commissioner of Competition, may be interested in looking at this situation.

Prof. Michael Geist also comments, based upon the “consortium” ATIP, that “The email trail reveals that the CBC recognized that it could not reject the advertisements on copyright grounds. Instead, the broadcasters conspired to adopt a policy to reject the ads anyway, an approach that smacks of copyright misuse and a potential Competition Act violation.”

Ezra Levant, himself a lawyer, has also expounded at length about all of this on October 13, 2014  and - leaving aside his clearly stated political preferences and taking his uniquely proud, provocative, political and personal proclivities into account - has some very useful and insightful things to say about copyright and competition law.

If the Competition Bureau does not choose on its own to look into this, there is always the possibly of “six resident” complaint under s. 9 of the Competition Act, which as the term suggest, can be launched by any six Canadian residents. It doesn’t necessary go anywhere but it forces the Commissioner of Competition, at the very least, to open a file. Rather more potent is the provision under s. 10 of the Competition Act that requires the Commissioner to commence an inquiry at the direct of the Minister of Industry, which could potentially, if warranted, lead to a result that addresses the Government’s concerns.

If the real issue here is something that can be dealt with under the Competition Act, then there may, at the end of the day, be no need to amend the Copyright Act – which already allows for the kind of “fair dealing” that most of these ads involves. If the networks have agreed among themselves not to broadcast material that is apparently legal according to copyright and is apparently not defamatory, then the Competition Bureau should at least be looking into this.

Whatever one thinks of political attack ads, it must be noted that they have been used by the major parties in both Canada and the USA. One should not lightly ignore the saying attributed to Voltaire: "I disapprove of what you say, but I will defend to the death your right to say it".

So, my bottom line Conclusion at this time is that:
a.   As Voltaire is said to have said, "I disapprove of what you say, but I will defend to the death your right to say it".
b.   The Government is right to be concerned about main stream network censorship of political speech.
c.    However, amendment to the Copyright Act may not be necessary or even effective because the Act already allows and indeed encourage such speech without the need of permission. In fact, this Government added the words “education, parody and satire” to the list of permitted purposes. There’s also a reassuring clip from Prime Minister Stephen Harper himself about all this wherein he makes it clear that the copyright  law already is OK and allows this kind of political speech and he would be very concerned about anything that would block or censor this kind of information from the public.
d.   I don’t think it ever was the Government’s intention to give politicians any more political speech rights than NGOs, or unions, or bloggers or any other ordinary citizens interested in freedom of expression – but if there’s no need for legislation, then there’s no risk of such a presumably unintended consequence.
e.   This potentially could turn out to be a competition law issue. I pointed out last week, and I think I was the first, that this whole issue might be very interesting to the Commissioner of Competition. Now, we’ve seen 137 pages of documents unearthed by the Sun News network that are out there online on my blog and elsewhere about a network “consortium” to “limit” the kind of activity that’s under discussion. This could be of great interest to the Commissioner of Competition, who is independent of political influence and who has great resources and lots of investigate powers behind him.
f.     BTW, any six residents of Canada or the Minister Industry can start the ball rolling with the Commissioner of Competition, if for any reason the Commissioner doesn’t take the initiative himself and needs to be nudged.
g.    I have attached the potentially relevant provisions of the Competition Act for the convenience of readers who may not be familiar with them.
h.   I was just on Ezra Levant’s show once again on this issue – here’s the link.


PS: Prof. Katz has reminded me that the UK Bill that led up to the monumental 1911 UK legislation and which included the fair dealing provision for the first time mentioned explicitly only 4 purposes: private study, research, criticism, review. “Newspaper summary” was added in committee because the British newspapers requested it, naturally, because they were concerned that, without it, it would be more difficult for them to produce newspapers. “Newspaper summary” was later considered as potentially too narrow, which is why, in Canada, we changed the term to “news reporting” in 1997. That clearly includes broadcast media, and not simply newspapers. The Canadian media apparently then didn’t think that fair dealing was “theft” or “stealing”. One important newspaper, the Toronto Star, even won one of the most important fair dealing copyright cases in Canada at that time, which involved the copying of the entire front cover page of a magazine that featured a picture of the then prominent politician Sheila Copps on a motorcycle that was used in an article about Sheila Copps. That was the case of Allen v. Toronto Star Newspapers Ltd., 1997 CanLII 16254 (ON SC).  Also, see Prof. Katz’s Chapter entitled Fair Use 2.0: The Rebirth of Fair Dealing in Canada from the book edited by Michael Geist on the “Pentalogy”.

(rev. October 16, 2014) 


Here's the follow up with Ezra Levant and Prof. Ariel Katz on s. 45 of the Competition Act and six citizen complaints, etc.

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