Friday, October 24, 2014

The Copyright Act Political Ad Amendment That Wasn't Tabled

In this uniquely tragic and distressing week on Parliament Hill, there was one thing that was a big story a week ago about an event that was rumoured to be on the brink of happening but which has now quietly disappeared from the radar screen.

There were rumours and/or leaks and/or trial balloons about a possible amendment to the Copyright Act buried deep inside an omnibus budget implementation bill that would supposedly legalize the use of excerpts of broadcast network footage of political figures sounding foolish or frightening or otherwise unattractive for the benefit of other politicians who want to use this kind of advertising. Some call this “negative ads”. Others call it “information” or “freedom of expression”.

In any event, I, Michael Geist and Ariel Katz quickly pointed out on our blogs and on air that this is already normally legal and does not require permission, much less payment. Normally, either the use is not going to be “substantial” or it will be “fair dealing” for one or more of the purposes of research, education, parody, satire or criticism. It will normally almost certainly pass the six factor test of fairness laid down by the Supreme Court of Canada.

Now, it seems that the budget implementation Bill C-43, introduced on October 23, 2014 the day after the tragic terrorist event at the National War Memorial and in Parliament Hill, is devoid of any references to the amendments to the Copyright Act. HT to @SDoyle333 for this.

If the Government has decided that it won’t amend the Act to deal with this issue, that would be wise because it would have been unnecessary. Moreover, it wouldn’t have worked anyway, because it seems that the real problem was that of a certain self-styled “consortium” of the major networks, which  agreed not to broadcast these political ads that contain each other’s or third party footage, notwithstanding their documented awareness that copyright arguments won’t wash anymore, if they ever did.

One of the ATIP documents unearthed by Sun News, not a party to the “consortium”, says:

“The goal is to keep news content from being used without permission. In past we fought this stuff using legal threats, but shifts to laws w.r.t. copyright and fair dealing have made this a less effective route. This ‘consortium’ we think would limit the activity.” 
(emphasis added)

So, it will be interesting to see whether six residents or the Minister of Industry cause the Commissioner of Competition to commence an inquiry into this matter, or whether the Commissioner himself chooses to do so.  Such inquiries are not conducted in public. If charges are ever laid under s. 45 of the Competition Act – and I’m not suggesting that this should necessarily happen – we will then certainly hear about it.

Perhaps the networks will quietly undo their consortium agreement and we will see lots of political ads using embarrassing footage in the next year or so, whether we like the ads not.  And there’s always this 1988 ruling by the Federal Court of Appeal, from which leave to appeal to the Supreme Court of Canada was denied in 1989, and which I was pleased to inform many unaware onlookers about, that should serve as a cold shower to any network or rival party who tries to block such ads.


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