Saturday, October 19, 2019

CBC “Fresh as Amended” Lawsuit Against the Conservative Party of Canada

Many have been wondering about what the CBC would do about removing Rosemary Barton and John Paul Tasker from the notorious copyright litigation, which the CBC’s Jennifer McGuire  promised to take care of first thing Tuesday October 15th, 2019. The CBC has finally done something after a week or so of apparent dithering, which was is to have its outside law firm prepare a document entitled “Fresh As Amended Notice of Application” signed and dated October 15, 2019 but which was not filed, for whatever reasons, until October 18th, 2019. Ms. Barton’s and Mr. Taskers’ name are no longer included as Applicants. References to moral rights claims have been removed. The Fresh As Amended document is seven paragraphs shorter than the original application.

The request for an interim injunction remains – although no affidavit or motion material has been filed and the election is happening on October 21, 2019. Both applications state that the CBC sent a cease and desist letter on September 11, 2019 – well over a month ago. That suggests that there was ample time to seek an interim injunction – but no attempt has been made for any such remedy.

Here is one of the remarkable paragraphs about moral rights that got removed, which apparently was referring to Ms. Barton and Mr. Tasker:

53. It is critical to the applicants that the Canadian public perceive them as
independent and non-partisan, so that they can be trusted to provide accurate
and unbiased information on matters of public interest. This is at the heart of
their mandate and journalistic work. Audience members, guest interviewees
and the subjects of their reporting will be concerned if they perceive that this
reputation is unfounded. By usurping the applicants' trust and hard-won
reputation for their own partisan purposes, the respondents have put these at
risk and harmed the applicants' reputations.
(highlight added)

Many would view the launching of this litigation as having caused the very harm to Ms. Barton and Mr. Tasker it purports to prevent. 
I don’t know what other changes, if any, may have been made between the Original and the Fresh applications.   The latter is seven paragraphs shorter. There are no indications by way of redlining of any amendments. Moreover, and even more notably, there was no motion seeking leave to amend. No doubt, curious Federal Court nerds are going to be wondering how this purportedly “fresh as amended” document even got filed and what the consequences may or may not be as a result of this unusual filing. Those nerds who need to know more and/or may be prone to insomnia may wish to look at Federal Courts Rules 75 and 79.
In the absence of a motion by the CBC which would have presumably included an affidavit, which might have resulted in an extremely interesting cross-examination, we still don't know for sure why and, more importantly how, the good names of Barton and Tasker were originally included and why they now have been removed.  But the sad fact remains that there has been no categorical denial that they knew about or consented to having their names added beforehand. Perhaps that is because such a denial might inevitably implicate one or more people in a potentially very problematic situation – namely adding somebody as an applicant in a court case without their informed and independently advised consent. Hopefully, Ms. Barton and Mr. Tasker are getting good independent legal advice and support.

Ms. Barton tweeted about this late Friday afternoon in a last-minute and likely futile attempt to do some damage control. No doubt, most Canadians would like to give Barton and Tasker them the benefit of the doubt because they are respected journalists and Canadians would like to be able to assume that they will provide impartial coverage of the Conservative Party of Canada with respect to the current federal election and beyond. 

However it is very difficult to make a similar assumption regarding CBC overall in the light of the decision by top management to launch this very controversial litigation, which has been widely and strongly criticized in terms of its apparent lack of merit in terms of copyright law, lack of respect for any reasonable notion of freedom of expression and how it has inevitably compromised the appearance of political neutrality and journalistic competence on the part of Canada’s national broadcaster.

Everybody may express disdain for negative campaign messages based upon embarrassing short video or sound clips, photographs, etc. but they are as old as democracy itself. Quoting or showing an opponent’s gaffes or unflattering pictures may be tasteless at times and may even backfire, as the Conservatives learned to their chagrin when they mocked Jean Chretien’s face in 1993 and lost all but two of their seats in Parliament in large measure as a direct result of the backlash. But such messages are inevitable, and it is not the place of copyright law and certainly not the place of Canada’s highly subsidized public broadcaster to rewrite the basic tenets of democracy and freedom of expression. Quoting less than a substantial part of any footage simply doesn’t engage the Copyright Act. 

As the esteemed Prof. David Vaver points out, a mere “particle” is not a substantial part. In the spirt of his “particle” analysis, I’ll quote a “particle” from page 182 of his excellent 2011 book with footnotes omitted:

The occasional hyperbole to the contrary—that the taking of even
a single sentence from the likes of a Dickens or a Shakespeare may
infringe — is simply nonsense. It falsely supports more mischievous
assertions, such as that the inclusion in an audio recording of a single
sound, however distinctive, from an earlier record infringes copyright.
But two or three seconds from a three-minute recording is a mere particle;
the sound, while perhaps of value to the taker, should not affect
the value of the source work as a whole and so should be outside the
copyright. owner's control.
(highlight added)

 One can have enjoyable conversations at cocktail parties about whether quoting “To be or not to be. That is the question” would infringe copyright in Hamlet, if Shakespeare were still alive. Or whether quoting “Frankly my dear, I don’t give a damn” would infringe copyright in Gone with the Wind. In both cases, the quotes are “distinctive” – because they are so closely identified with particular works. However, in the very remote event that any court would hold such “particles” to be “substantial” in a qualitative sense, it is very easy to imagine any number of contexts where using the quotes would be still be “fair dealing” by any measure – for example for any or all of the purposes of research, education, parody or satire, criticism or review or news reporting. Thus, it is bizarre to suggest that using clip of Justin Trudeau saying “What I can say now is look at what we’ve done” or stammering and being at loss for words is actionable infringement of the broadcast or audiovisual work in which the quote is embedded. This is presumably exactly what Prof. Vaver would characterize as “simply nonsense”.

One would not be surprised if this ill-advised litigation were simply be soon discontinued. It is hard to imagine how it could possibly succeed. The CPC’s argument that it is moot and that this case – such as it is - should not be used as a platform for a sweeping general declaration binding on Canadian society in the future on copyright law, freedom of expression and political discourse in Canada is compelling. As the CPC says in its motion material seeking to have this case dismissed:
15. The Order sought. by the applicants would, in practice, be a national binding declaration that citizens are forbidden from using any media created by the CBC. Such relief is untenable. It contravenes the Copyright Act, and urges a legislative interpretation that would contravene the Canadian Charter of Rights and Freedoms. (footnote omitted)

Above all, the law in Canada is very clear on the issues involved. This doesn’t need the judgment of the courts. If a different and compelling fact situation should ever arise, it can always be addressed. This situation is far from compelling. 

The judgment by and governance of the CBC is, however, another matter and may merit the judgement of the court of public opinion and the next government. BTW, here are the names and expiration dates of the key Governor in Council appointments re CBC Governance.  While the role of the President of the CBC and its senior management seems to be quite obvious based upon this extraordinary statement from President Catherine Tait, one can only wonder what the CBC Board of Directors knew about all this, when did they know it, and did they approve of it? And if they were not consulted or did not approve, what are they going to do about it and when? 

BTW, Ms. Tait states in the foregoing statement about similar previous litigation that she says the CBC launched:
During the 2015 election campaign, several parties used CBC/Radio-Canada content, including footage of our journalists, in partisan advertising. We sent cease and desist letters to the Liberal Party and the NDP and they complied. When the Conservative Party and the Broadbent Institute refused to comply with requests that they remove the material, we launched legal action against both organizations, on behalf of CBC/Radio-Canada and the specific journalists affected. Both organizations ultimately settled the court action by agreeing to remove the unauthorized material. Their settlement came after the ads had served their intended purpose and before the Court had issued its decision. Without a court ruling this left the door open to a repeat of that behaviour in this election.
(highlight added)

I can find no record on the Federal Courts database of any such litigation. All Federal Court and Federal Court of Appeal litigation is recorded and docketed on this database, even if it doesn’t result in a judgment.  It is possible, though very unlikely, that such litigation was commenced in one of the superior courts of the provinces. Those databases are not publicly available. Anyway, we would very likely have heard about any such litigation at the time.  BTW, my quotation of these six sentences from Ms. Tait may very well violate the CBC’s formidable and even frightening “Terms of Use” policy

The CBC should be the defender of sound copyright policies that celebrate news reporting in particular and fair dealing generally, and – naturally - freedom of expression and best practices in journalism. Instead, it seems to have sunk deeper and deeper into the abyss I wrote about five years ago on the other side of all these issues. 

FWIW, I have embedded above the CPC ad that the CBC is so apoplectic about. Since the lawsuit was filed, it has been viewed nearly a million times. 


PS - here's a letter to the Court dated January 9, 2020 which updates the Court as to proposed next steps. Once again, here's the docket.

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