There is an important new
development in the CBC et al v.
Conservative Party of Canada (“CPC”) et
al copyright litigation launched on October 10, 2019 just 11 days before
the Federal election and which I have written about at some length here.
The CPC has filed a
motion returnable on October 29, 2019 in Toronto calling for a dismissal of the
proceeding or, in the alternative converting it into an action from its present
form of an application. The basic gist of the motion is that the proceeding
discloses no reasonable cause of action, i.e.
- It simply lacks any possibility of success;
- It seeks what would, in practice be a national binding declaration that citizens are forbidden from using any material created by the CBC; and,
- It would contravene the Copyright Act and seek an interpretation that would contravene the Charter of Rights and Freedoms.
The issues of substantial
taking and fair dealing are also, of course, raised. The motion also urges that
the CBCs proceeding is “moot” since the allegedly infringing materials have
already been made removed. The CPC’s Notice of Motion and Written
Representations dated and filed October 17, 2019 are attached.
Interestingly, despite an explicit
statement from Jennifer McGuire that Rosemary
Barton and John Paul Tasker would be removed as parties to this litigation and
that “we intend to file an amendment
to remove their names as applicants when the court opens on Tuesday” (i.e.
Tuesday, October 15, 2019), apparently no such steps have yet been taken as of
the time of this blog posting. Here’s the docket.
As noted by me and many
others, the inclusion of these two respected journalists, Ms. Barton and Mr.
Tasker, in this application severely compromises the appearance of their impartiality.
If they were added as applicants to the CBCs application without their consent,
this raises extremely serious questions calling for immediate answers and
accountability. Indeed, every aspect of how and why the CBC proceeded to launch this widely criticized
litigation, which has been explicitly defended by its President, Catherine Tait, requires a full explanation. The CBC
is an 83-year-old public broadcaster and its very aggressive policy of using
copyright law in a manner that most copyright experts would agree is
unsupportable and which arguably stifles freedom of expression needs to be
addressed by the next Government.
Hopefully, the CBC will
survive and flourish – but it needs to learn some serious lessons about copyright
law and even journalism itself.
HPK
PS: Oct 28, 2019: The motion to dismiss, etc. has been "adjourned sine die". Check the docket above for updates.
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