Political attack ads are a Canadian electoral staple, compressing incriminating, damning and provoking footage into 30-second media bites. Typically, the subject matter is harvested from archived footage of the target captured under the media’s ever-watchful lens. Political parties have freely taken to exploiting news materials without the consent of originating news agencies. Broadcasters strongly condemn this practice, insisting that the materials are protected under the Copyright Act (RSC 1985, c C-42); political parties disagree, suggesting that their use falls within fair dealing carve-outs to the Act.
The Copyright Act protects the exclusive right to produce/ reproduce a work, or any substantial part thereof (s 3(1)); while fair dealing exceptions provide a limited user right when the ‘use’ is undertaken for the purpose of research, private study, education, parody, satire (Copyright Act, s 29), criticism, review (s 29.1) or news reporting (s 29.2).[1]
Legal scholar Michael Geist is an outspoken advocate for the political parties’ position. He argues that most clips are just a few seconds long, making them an insubstantial part of the overall work. The Copyright Board has held that an insubstantial part of a work does not give rise to a copyright claim ([2015] CBD No 2 at 177). Geist further argues that even if the clips were found to be of a ‘substantial nature’, some uses may fall within fair dealing’s criticism exception or even as a form of research. This argument may be assisted by the Supreme Court’s guidance that fair dealing “must not be interpreted restrictively” (2004 SCC 13 at 48). As Geist notes, certain characteristics of political ads would do well in a fair dealing analysis; a Court may find that “given the qualifying purpose, the limited amount copied, the lack of alternatives, and the limited economic effect, there is a strong fair dealing argument.”
Despite this prospect, broadcasters remain undeterred from efforts to limit unauthorized use of their materials in political advertisements. Jennifer McGuire, General Manager of CBC News, emphasizes that “our integrity as providers of serious, independent coverage of political parties and governments rests on viewer confidence that the report is not framed by partisan interest.” Canadian broadcasters hold grave concerns about the effect of misrepresenting an interview out of context, particularly when attack ads have visual connections to reporters or network branding. The principle of journalistic independence could be undermined by such appearances, making the reporter or network appear to have a partisan bias.
Prior to the announcement of the last federal election, a broadcasting consortium of the largest Networks in Canada, including CBC/Radio Canada, Shaw, Rogers and Bell, penned a letter to political parties announcing that its members “will not accept any political advertisement which uses our content without our express authorization.” This unprecedented collaboration limited the materials available for ads run on major Canadian networks.
In an apparent response, the Federal Government proposed introducing a new copyright fair dealing exception into the Act to provide political parties with the enumerated right to use news content for political advertising. However, the discussion died on the assembly floor; possibly because the practice could already beprotected under current fair dealing provisions.
Attack ads have become entrenched in election campaign toolkits. As such, it is only a matter of time before the issue is tested in Court providing clarity on whether the practice should be included as a user right in a “large and liberal interpretation” of fair dealing (2004 SCC 13 at 51; affirmed: 2012 SCC 36). However, even using this interpretation, it is difficult to conclude that the Courts would allow copyright-protected material to be twisted for political gain under the guise of fair dealing. A fair dealing analysis for the purpose of research would have to consider the ultimate users. The larger question is whether research can properly be undertaken when video clips have been deliberately manipulated for desired effect. The analysis would also consider the dealing’s effect on the copyright holder, which, as McGuire articulates, compromises journalistic integrity. These factors should weigh heavily on the mind of a trier-of-fact.
The largest hurdle in such a matter may be the substantiality analysis. While Geist points out that the news clips in political ads are quite short, they are not necessarily insubstantial. The question at the heart of a substantiality analysis "focuses on whether the copied features constitute a substantial part of the plaintiff’s work, not whether they amount to a substantial part of the defendant’s work” (2013 SCC 73 at 39).
Jennifer R. Davidson is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.
[1] To qualify under criticism, review or news reporting under fair dealing, source credit is required.