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.

Is the Party Over for the "Happy Birthday" Song?

The Happy Birthday song is in the news once again. Watch the video above for what is perhaps the most historic, famous and transparent performance ever of this song. Viewer discretion is advised.

Here is the complaint in a class action lawsuit in the Southern District of New York, which seeks a  declaration that any copyright rights owned by Warner/Chappell are extremely limited (to certain piano arrangements published in the 1930's) and that the song is and has been for a long time in the public domain.

More to the point, it seeks restitution of all license fees paid for the song going back to 2009. Presumably, that date is based upon a limitation period. And that could mean millions of dollars for the lawyers involved, if this succeeds.

Here's a remarkable paper by Prof. Robert Brauneis - which presumably forms the basis for the litigation. Prof. Brauneis told the NY Times:

“I believe this song is in the public domain and therefore it is not owned by anyone,” Professor Brauneis said in a phone interview on Thursday. He said “Happy Birthday to You” was “economically significant” in that it “still produces millions of dollars of income in a year,” and that a successful legal challenge “might be a model for challenges to other songs.”

The law suit has been assigned to the legendary Judge Louis Stanton.

And here's the best arrangement ever of this song - by Igor Stravinsky, the best composer of the twentieth century: 

Speaking of birthday's. May 29, 2013 was the 100th birthday of Stravinsky's Rite of Spring, easily the most influential musical composition in the last century. It is performed here brilliantly by Michael Tilson Thomas and the San Francisco Symphony:

HPK

Why the Pirate Party Party Matters

Tim Avatar Bartel

Mr. Jeremy Phillips, pillar of the UK and EU IP Establishment and cat fancier/blogmeister extraordinaire, has a persuasive editorial in the Oxford Journal of Intellectual Property Law & Practice about why the Pirate Party should be taken seriously and engaged. He points out that it is the current incarnation in some, albeit, contrasting respects to he 19th century Luddites. Rather than fighting new technology, the Pirate Party "views innovation as a surging wave and seeks to ride its crest":

The Pirate Party is not the first movement in history to have been motivated by IP issues. The Luddites in nineteenth century England were concerned to prevent the introduction of innovative manufacturing machinery into the increasingly automated textile industry. There are, however, vast differences between them. While the Luddites were a popular movement, they were unable to engage with the political system from which they were disenfranchised, while the Pirate Party utilizes the regular political apparatus of state in order to harness the power of a mainly young, apparently apathetic, culturally aware sector of the electorate. Another difference is that, while the Luddites sought in vain to turn back the tide of new technology, the Pirate Party views innovation as a surging wave and seeks to ride its crest.

What is the proper response of the IP sector to the Pirate Party? Since it works within the law and seeks to amend the law by lawful means, calls to ban it are futile and misconceived. One can simply wait and hope that, in the fullness of time, those who demand the freedoms which IP restricts will grow up to own the rights which now they wish to attenuate. This too is a forlorn expectation, since the Pirate Party's constituency is a renewable resource: a new generation of young idealists will replace those who graduate to middle-class, middle-age stolidity. There is only one response: to engage the Pirate Party in dialogue and to match its every point with the counterpoint of a better argument.

HK

CBC, Copyright and the Canadian Cultural Revolution

This is for those who care about the decimation and devastation of classical and serious music now underway at CBC Radio Two, Canada's once proud national and entirely subsidized radio network that used to be devoted to non-commercial and culturally important content.

The CBC has a long standing tradition of “negotiating” its tariff obligation with SOCAN rather than rolling up its sleeves and actually going to the Copyright Board for a contested hearing. SOCAN is probably much better at this game than CBC. The bottom line is that CBC at last report was paying something in the order of $1.5 million a year to SOCAN as of 2005 for its radio activity alone (to be exact, $1,486,836 for 2005) - for the use of repertoire that historically has included quite a lot of public domain classical music. According to Canada’s Copyright Board, in 1998 the percentage of “protected” music played on CBC radio overall was somewhere between 21% and 24% of its broadcast day. Clearly, this percentage will now rise substantially.

Whatever calculus may have been in place will likely now change. Someone will probably do some scribbling on the back of an envelope and suggest that CBC should double or treble or more that amount of $1.5 million a year in view of the fact that the dreaded dead white European male composers who have been deceased for more than 50 years will be taking up very little time now on the five hours a day of “classical”music permitted during the middle of the day on Canada’s subsidized national radio network. CBC will likely agree, rather than offend Canada’s commercial music elites and have to go the trouble of actually having a hearing at the Copyright Board, which it hasn’t done for a very long time. CBC in fact now seems to be pandering to Canada’s commercial music elites in a very big way.

So the saving of somewhere between $300,000 and $1,000,000 realized from killing off the CBC Vancouver Radio Orchestra will likely soon vanish in increased SOCAN payments alone. Not to mention NRCC - the record companies’ and performers’ collective that is trying to play catch up with SOCAN and which will also benefit from the banishment of the dreaded dead white European male composers’ music and recordings of old and/or foreign orchestras and other “classical” ensembles - but in ways that are rather more complex than this brief comment allows for.

And needless to say, most if not all of these extra tariff costs will go the commercial music interests that CBC seems to think require subsidized airing on Radio Two.

I’m going to do more on this. If anyone cares to let me privately know what they think about SOCAN’s treatment of serious music composers in Canada, I’m all ears.

HK

More on Euro-Excellence v. Kraft

I’ve just done a short talk on the Supreme Court of Canada’s important Kraft decision (in which I was involved) for a LSUC CLE programme on February 28, 2008 in Toronto. Here’s my brief paper.

Here’s a bit of the bottom line in that paper.

The doors have now been opened to new issues such as copyright abuse or misuse, or the argument that copyright law cannot be used to limit free trade in articles not protected by copyright. Other arguments are also open. Current and future potential plaintiffs contemplating the use of copyright law to bar parallel imports of consumer products not protected by copyright may wish to be careful about what they wish for.

HK