Friday, October 18, 2019

The Conservative Party of Canada Moves to Dismiss the Controversial CBC Litigation and CBC’s Apparent Inaction on Removing Barton & Tasker

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.


PS: Oct 28, 2019: The motion to dismiss, etc. has been "adjourned sine die". Check the docket above for updates.

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