(Wherein
Rick Mercer Goes Remarkably Rogue re Reliability and his Research Resourcefulness: Warning - this Rant is Hazardous to the State of Canadian Journalism and Rick's Otherwise Respected Role Therein)
Countless “C” words have been in circulation
re Copyright,
Campaigns,
a Certain
Consortium,
Collusion,
Conspiracy, Co-conspirators,
Cartel,
Censorship,
Confidence,
CTV,
CBC,
Conservatives,
and Commissioner
of Competition.
Of course, nothing regarding the Competition Act has been proven in
court or is yet anywhere even near a court as far as I know. But the most applicable
“C” word of all might be “Confusion”.
I’ve been involved with copyright law for longer
than I care to admit – indeed, more than three decades. But I don’t think I’ve
ever seen so much confusion and just plain WRONG commentary about a copyright
issue as I’ve seen in the last week of Coverage of the issue of copyright and negative
political ads.
The prize for the worst coverage of all goes, surprisingly, to
someone who one would have thought would appreciate the importance of fair
dealing and satire – but apparently does not. That would be Rick Mercer no less
– and here’s his remarkably wrong Canard of a rant on the subject. CTV’s
Question Period last Sunday wasn’t much better –
despite the presence of several highly experienced and reputable journalists
who one might have thought would understand the role and importance of fair
dealing. Let us hope that this generally dreadful coverage is not related to the
“consortium” agreement
executed by senior executives of the main Canadian networks last spring, from
which Sun News was notably and conspicuously excluded. Perhaps these otherwise
usually reliable journalists have just drunk too much of their corporate
employer’s Kool Aid over time. In any event, it’s time for some Clarity
and hopefully a Conclusion.
As I suggested last week,
there are potentially interesting aspects involving Canada’s Competition
Act issue arising out of the “consortium” agreement led by CBC concerning
the signed agreement of the major broadcast networks
in Canada to “to keep news content from being used
without permission”, the content being footage of politicians who sometimes say silly or
embarrassing things and permission not being needed when the use of such
content involves insubstantial copying or fair dealing. Such footage has become
the fodder of many “attack ads”, which are hardly a new practice. As I pointed
out, the Liberals successfully fought for the right to air such
ads back in 1988. The CBC "consortium”, was apparently spear-headed
by Jennifer McGuire in response to concerns by Peter Mansbridge about use of certain
footage of him interviewing Justin Trudeau.
My friend
and colleague Prof. Ariel Katz of the U of T Faculty of Law, with whom I have worked closely on a factum that was quite
influential in a landmark Supreme Court of Canada fair dealing case and other issues, is an internationally recognized
leading copyright scholar and Canada’s foremost expert in the interplay of IP
and competition law. Here’s his blog
from October 14, 2014 entitled Attack
Ads, Copyright, and Collusion: Have Canada’s Major Broadcasters Violated the
Competition Act?
Prof. Katz
discusses s. 45 of the Competition Act, which comes under the heading “Conspiracies,
agreements or arrangements between competitors” and is perhaps the most feared
and potent provision of the legislation. It is used in serious cases. It can
put people in jail for up to 14 years and result in a fine of up to $25 million per count, or both, which is a very big time penalty by Canadian
standards. Changes made by Parliament to the s. 45 provisions in 2009 that came into
effect in 2010 may now make it easier in some circumstances to obtain a conviction.
The new section provides for “per se” offences, which do not require proof that
competition was lessened “unduly” and there is no need to prove any adverse
market effects. There is no need to prove that the conspiracy in question was
actually carried out – only that it was entered into. There’s also a less harsh
new “civil” enforcement
provision to be found in s. 90.1 that
involves the Competition Tribunal, which may or may not be of interest in the
current situation. To be crystal clear, nothing I am saying or have said
accuses anyone of any offence or violation under this or any other provision of
the Competition Act. I am
merely pointing out that there are provisions in the Competition Act
that may be relevant, depending on the facts, and that folks, including the
Commissioner of Competition, may be interested in looking at this situation.
Prof. Michael Geist also comments, based upon the “consortium” ATIP,
that “The
email trail reveals that the CBC recognized that it could not reject the
advertisements on copyright grounds. Instead, the broadcasters conspired to
adopt a policy to reject the ads anyway, an approach that smacks of copyright
misuse and a potential Competition Act violation.”
Ezra Levant, himself a lawyer, has also expounded at length about all of this on October 13, 2014 and - leaving aside his clearly stated political preferences and taking his
uniquely proud, provocative, political and personal proclivities into account -
has some very useful and insightful things to say about copyright and
competition law.
If the
Competition Bureau does not choose on its own to look into this, there is
always the possibly of “six resident” complaint under s. 9 of the Competition Act, which as the
term suggest, can be launched by any six Canadian residents. It doesn’t
necessary go anywhere but it forces the Commissioner of Competition, at the
very least, to open a file. Rather more potent is the provision under s. 10 of the
Competition Act that requires
the Commissioner to commence an inquiry at the direct of the Minister of
Industry, which could potentially, if warranted, lead to a result that
addresses the Government’s concerns.
If the real
issue here is something that can be dealt with under the Competition Act, then
there may, at the end of the day, be no need to amend the Copyright Act – which
already allows for the kind of “fair dealing” that most of these ads involves.
If the networks have agreed among themselves not to broadcast material that is
apparently legal according to copyright and is apparently not defamatory, then
the Competition Bureau should at least be looking into this.
Whatever
one thinks of political attack ads, it must be noted that they have been used
by the major parties in both Canada and the USA. One should not lightly ignore the
saying attributed to Voltaire: "I disapprove of what you say, but I will
defend to the death your right to say it".
So, my bottom line Conclusion at
this time is that:
a.
As Voltaire is said to have said, "I disapprove
of what you say, but I will defend to the death your right to say it".
b.
The Government is right to be
concerned about main stream network censorship of political speech.
c.
However, amendment to the Copyright
Act may not be necessary or even effective because the Act already
allows and indeed encourage such speech without the need of permission. In
fact, this Government added the words “education, parody and satire” to the
list of permitted purposes. There’s also a reassuring clip from Prime Minister Stephen Harper himself
about all this wherein he makes it clear that the copyright law already is OK and allows this kind of
political speech and he would be very concerned about anything that would block
or censor this kind of information from the public.
d.
I don’t think it ever was the
Government’s intention to give politicians any more political speech rights
than NGOs, or unions, or bloggers or any other ordinary citizens interested in
freedom of expression – but if there’s no need for legislation, then there’s no
risk of such a presumably unintended consequence.
e.
This potentially could turn out to be
a competition law issue. I pointed out last week, and I think I was the first, that
this whole issue might be very interesting to the Commissioner of Competition.
Now, we’ve seen 137 pages of documents unearthed by the Sun News network that
are out there online on my blog and elsewhere about a network “consortium” to
“limit” the kind of activity that’s under discussion. This could be of great interest
to the Commissioner of Competition, who is independent of political influence
and who has great resources and lots of investigate powers behind him.
f.
BTW, any six residents of Canada or
the Minister Industry can start the ball rolling with the Commissioner of
Competition, if for any reason the Commissioner doesn’t take the initiative
himself and needs to be nudged.
g.
I have attached the potentially relevant provisions of the Competition
Act for the convenience of readers who
may not be familiar with them.
h.
I was just on Ezra Levant’s show once
again on this issue – here’s the link.
HPK
PS: Prof. Katz has reminded me that the UK Bill that led up to the monumental 1911 UK legislation and which included the fair dealing provision for the first time mentioned explicitly only 4 purposes: private study, research, criticism, review. “Newspaper summary” was added in committee because the British newspapers requested it, naturally, because they were concerned that, without it, it would be more difficult for them to produce newspapers. “Newspaper summary” was later considered as potentially too narrow, which is why, in Canada, we changed the term to “news reporting” in 1997. That clearly includes broadcast media, and not simply newspapers. The Canadian media apparently then didn’t think that fair dealing was “theft” or “stealing”. One important newspaper, the Toronto Star, even won one of the most important fair dealing copyright cases in Canada at that time, which involved the copying of the entire front cover page of a magazine that featured a picture of the then prominent politician Sheila Copps on a motorcycle that was used in an article about Sheila Copps. That was the case of Allen v. Toronto Star Newspapers Ltd., 1997 CanLII 16254 (ON SC). Also, see Prof. Katz’s Chapter entitled Fair Use 2.0: The Rebirth of Fair Dealing in Canada from the book edited by Michael Geist on the “Pentalogy”.
(rev. October 16, 2014)
PS II:
Here's the follow up with Ezra Levant and Prof. Ariel Katz on s. 45 of the Competition Act and six citizen complaints, etc.
PS: Prof. Katz has reminded me that the UK Bill that led up to the monumental 1911 UK legislation and which included the fair dealing provision for the first time mentioned explicitly only 4 purposes: private study, research, criticism, review. “Newspaper summary” was added in committee because the British newspapers requested it, naturally, because they were concerned that, without it, it would be more difficult for them to produce newspapers. “Newspaper summary” was later considered as potentially too narrow, which is why, in Canada, we changed the term to “news reporting” in 1997. That clearly includes broadcast media, and not simply newspapers. The Canadian media apparently then didn’t think that fair dealing was “theft” or “stealing”. One important newspaper, the Toronto Star, even won one of the most important fair dealing copyright cases in Canada at that time, which involved the copying of the entire front cover page of a magazine that featured a picture of the then prominent politician Sheila Copps on a motorcycle that was used in an article about Sheila Copps. That was the case of Allen v. Toronto Star Newspapers Ltd., 1997 CanLII 16254 (ON SC). Also, see Prof. Katz’s Chapter entitled Fair Use 2.0: The Rebirth of Fair Dealing in Canada from the book edited by Michael Geist on the “Pentalogy”.
(rev. October 16, 2014)
PS II:
Here's the follow up with Ezra Levant and Prof. Ariel Katz on s. 45 of the Competition Act and six citizen complaints, etc.
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