The CBC – Canada’s National State Subsidized Broadcaster – Confronts in Court the Conservative Party and Copyright Law 10 Days Before the Federal Election: What Could Possibly Go Wrong?

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

                                           (Catherine Tait/CBC)

(Jennifer McGuire/CBC)

Not for the first time, the CBC – Canada’s 83 year old, usually respected even if frequently controversial taxpayer subsidized broadcaster – has embarrassed itself badly on the copyright front. This time, however, it has outdone itself in terms of controversy by suing one of Canada’s two main political parties for copyright infringement just 11 days before a national election. It has taken, IMHO, an inexplicable and frankly unsupportable position seeking to prohibit the use of short excerpts from broadcast footage in the course of election campaigns. It will be recalled that in 2014, Jennifer McGuire, who is apparently still employed by the CBC in the same very senior position as General Manager and Editor in Chief of CBC News that she has held since May 2009, led the charge with a “consortium” to try to stop the use of such excerpts in political campaigns. The thought was even entertained by the government of the day led by Stephen Harper to pass legislation explicitly allowing for such usage by political parties, notwithstanding that I and others warned that that such legislation was not only unnecessary but could potentially and likely even be very counterproductive. I wrote about all of this almost five years ago just over a year before the last election, including how Rick Mercer demonstrated his sadly ironic apparent ignorance about copyright law.  It’s déjà vu all over again, except that this time it’s much worse.

In any event, Ms. McGuire is still in charge of the news network at CBC and is the apparent guiding mind behind what is likely to go down as one of the most misguided moments in the history of the CBC in terms of both journalism and the law and may well prove to be a defining moment in the increasingly possible demise of the CBC – especially if the Conservative  Party of Canada wins the election, which this latest fiasco may ironically help to facilitate. Ms. McGuire is also CBC’s representative on the CDPP (Canadian Debate Production Partnership), which managed to present two French debates and only one English debate (go figure!).

The CBC has unaccountably and inexplicably sued the Conservative Party of Canada for a campaign video, visible above, that includes several short excerpts (only some of which are from the CBC) from various broadcasts, consisting of at most ten seconds in each case. Here is the remarkable Statement of Claim, which could serve as good teachable moment for any law school copyright or civil litigation class. Here’s a hint – why ask for an interim and interlocutory  injunction where there is obvious doubt as to whether there is a even a serious issue to be tried just 10 days before the interim injunction would be moot anyway against activity that has already admittedly ceased, and where there is no credible evidence of irreparable harm arising from practices that are decades old? I had thought that the recent Statement of Claim from Allarco about which I commented with controlled restraint was “unusual”, but this one is in some ways even more so.  

The CBC is apparently oblivious to the following absolutely basic principles of copyright law in Canada:

-        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, [2004] 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.

Michael Geist has succinctly parsed and measured the CBC’s possible claim in key quantitative and factual respects:

One of the clips features two short segments (total of ten seconds) of Prime Minister Justin Trudeau at a town hall event. There are no CBC journalists involved, though the town hall aired on the CBC. Displaying ten seconds from a town hall that ran over an hour hardly qualifies as a significant portion of the work and again does not implicate CBC journalists or journalism.

The remaining three clips do include CBC journalists. One involves four seconds of Andrew Coyne speaking on the At Issue Panel on conflict issues. Rosemary Barton appears in the clip (as does Chantal Hebert) but says nothing. The clip should qualify as fair dealing, but it is difficult to see what the fuss is about given that Barton does not even speak in it. Another clip involves five seconds of John Paul Tasker appearing on Power and Politics discussing support to Loblaws for energy efficient refrigerators and the last one features five seconds of Rex Murphy talking about moving expenses. The clips are short and demonstrate that CBC journalists engage in legitimate critique of government policies and action. That isn’t bias, that is doing their job. Indeed, all these stories were widely covered in the media and there is nothing particularly controversial about what is said in the clips. (highlight added)

So, if Michael’s quantitative and other factual analysis is right, the Copyright Act isn’t even implicated because the copyright is not “substantial”, we don’t even need to worry about fair dealing, which, as Michael suggests, would likely be resolved in the Conservative Party of Canada’s favour. It’s very important in copyright law not to even open the fair dealing debate door unnecessarily or to do so only “in the alternative”  – when such fundamental threshold issues such as the absence of “substantial” copying my suffice to dismiss.

Once again for those who do not know history and thus are condemned to repeat it, the issues raised in this remarkable Statement of Claim are similar to those to those dealt with by the Federal Court of Appeal more than 30 years ago in a case that I have referred to before, namely that of the Federal Liberal Agency Liberal of Canada v. CTV, CBC and Global. In that case, the broadcasters, including CBC,  were actually ordered by the Court to broadcast a campaign ad containing allegedly infringing footage.

The CBC is seeking a permanent injunction and a declaration in addition to an interim and interlocutory injunction, concerning which there is nothing presently visible on the docket. Leaving aside the improbability of any success by the CBC in this matter, there are some possible journalistic, legal and political consequences of this unfortunate litigation that I cannot refrain from mentioning – even though I am neither a journalist nor a pundit nor a partisan in any sense:

-        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 by Catherine 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.

It will be interesting to see if any credible copyright scholars, lawyers, or knowledgeable journalists rally to the side of CBC on this issue. I would be very surprised.

The CBC may be about to learn some hard and potentially very painful lessons about:

-        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.

This election is fraught enough without this disastrous distraction. The fact that Canadians now may have reason to perceive doubt about the competence and journalistic independence of their national broadcaster at such a critical time is extremely regrettable.

HPK

PS - Here's the docket.

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.

HPK

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) 

PS II:

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

Copyright And Political Ads: Insight Into a Certain "Consortium"

The news networks themselves are emerging as a major element in the unfolding story of copyright, campaigns and political ads. It seems that this is getting to be less about copyright and more about a certain "consortium".

Regarding the possible legislation concerning the copyright aspects of political ads, I’ve now seen documents that indicate that there was a “consortium” of the major broadcasters formed this spring at the initiative of the CBC to deal with this issue. They apparently deliberately chose to leave Quebecor (Sun Media) out of the discussions. They agreed not to air political ads that include content from each other or even third party broadcasters and that this consortium was necessary because copyright law no longer worked to justify their position.

One of the documents 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)

Here’s the batch of documents, which a third party has obtained via ATIP.  Readers may wish to focus on pages 58, 64, 83, 86, 89, 110, 112-113. 116-117, 122, and 137 for starters.

All this could be of considerable potential interest to, at the very least, the CRTC, Elections Canada, and the Competition Bureau.

Spoiler alert: the names Peter Mansbridge and Jennifer McGuire figure very prominently in these 137 pages.

No doubt, more to come.

HPK