Monday, October 14, 2019

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?

                                           (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 Effectwhereby 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.


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