Home > cdnpoli, CDNTech, Commentary, Copryight, CTV, Digital Policy, Politics > Is Canada’s Broadcast Media Consortium Using Attack Ad Scandal to Push Copyright Political Agenda?

Is Canada’s Broadcast Media Consortium Using Attack Ad Scandal to Push Copyright Political Agenda?

Over the past few days the broadcast airwaves have been filled with stories relating to proposed changes the Conservatives want to make to the copyright law to allow them to use news clips in their political advertising without permission or compensation. Like many Canadians, I find attack ads distasteful, despicable, and a disgusting way of doing politics.  However like everyone in Canada political parties should be free to criticize political figures.  Criticism of political ideology is a very healthy exercise for democracy, even if you don’t agree with how it’s done, or what’s being said.

During my time in the copyright debates in 2009, the one thing I learned is that big media companies hate a piece of law in the Copyright Act called “Fair Dealing” which explicitly exempts copyright owners from being compensated under certain circumstances.  This is to protect free speech, education, political satire, research, and criticism from being controlled by rights holders.  Big media hates this provision because quite simply their not getting paid for their works.  The way CTV,  journalists, and opposition MPs are reporting this to the Canadian public is that the Conservatives would steal news content, and not pay for it.

Section 29, of Canada’s Copyright Act deals with the fair dealing exemptions (in which criticism is fully covered emphasis added):

29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

R.S., 1985, c. C-42, s. 29;
R.S., 1985, c. 10 (4th Supp.), s. 7;
1994, c. 47, s. 61;
1997, c. 24, s. 18;
2012, c. 20, s. 21.

Previous Version
Marginal note:Criticism or review

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:

(a) the source; and

(b) if given in the source, the name of the

(i) author, in the case of a work,

(ii) performer, in the case of a performer’s performance,

(iii) maker, in the case of a sound recording, or

(iv) broadcaster, in the case of a communication signal.

1997, c. 24, s. 18.

Marginal note:News reporting

29.2 Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned:

(a) the source; and

(b) if given in the source, the name of the

(i) author, in the case of a work,

(ii) performer, in the case of a performer’s performance,

(iii) maker, in the case of a sound recording, or

(iv) broadcaster, in the case of a communication signal.

1997, c. 24, s. 18.

I’ve quoted the fair dealing exemptions in full, because it’s important that Canadians know where the law lies on this.  Fair dealing is necessary to allow blogs like this to continue to criticize public policy without being taken down on copyright laws.  It allows journalists to report on the news, and it also allows Rick Mercer to suggest that the speaker of the house should be replaced by a bag of flour. The interesting question would be, if fair dealing already states that for the use of criticism no compensation or permission is needed to use the copyright protected works, why are the Conservatives introducing amendments to the copyright act to allow what’s already allowed, and why are the news agencies all pissed off about this.  It all comes down to the mighty dollar for the media companies.

The narrative that the Conservatives are stealing news content (which many of the journalists are using to describe legal fair use of their works) strongly suggests Canada’s Broadcast Media Consortium has issues with fair dealing uses of their works, not just by the Conservatives however; this could also extend to blogs, and other online media such as their works being used by youtube commentators and so forth. Canada’s Broadcast Media Consortium sent a letter to the Conservatives back in May demanding authorization (that essentially means they pay for the use of their copyright protected material) or they would not air the content (which under several laws, notwithstanding fair dealing, and election laws is illegal).

From here the Conservatives set out to clarify the law by sneaking in an amendment to the copyright act due to this threat from the Media Consortium who is not co-operating with fair dealing laws, specifically to allow political parties full access under fair dealing.  The problem is the Conservatives are well known for sneaking in unrelated stuff into their budget bills, and have a track record of being pig headed and dishonest about their intentions, to which the media (especially CTV) are playing up big time because they want people to pay for any use of their works, and seemingly disagree with the fair dealing clauses currently in law by the way they are framing this.  CTV News Channel had a large number of experts throughout the day yesterday that explicitly disagreed with the stations views on fair dealing.  During the nightly CTV’s National News cast, not one of those interviews made it to air.

There is an excellent interview with copyright lawyer Howard Knopf on the current situation as it relates to current law, and another good explanation of fair dealing. Also the fact that we have defamation laws that cover inaccurate and defamatory reporting when it comes to taking comments out of context.  If Canada’s Broadcast Media Consortium pushes this into court, they will have a very huge hill to climb, considering the Supreme Court has ruled on fair dealing cases 6 times  three times in recent years, so there’s a lot of precedents and case law moving forward that isn’t in the Consortium’s favor.

What’s also troubling is the political position of the Liberals on fair dealing.  Ralph Goodale stood up in the house of commons during question period yesterday and essentially repeated the fact that fair dealing is stealing.  Is the official position of the Liberal Party of Canada that fair dealing needs to be scrapped entirely?  That would kill free press/free speech in this country.

Like many Canadians I’m fed up with Conservative attack ads.  Rather than taking the approach to attack fair dealing in copyright law needed for among other things a free press, and free speech; why not introduce legislation or commit to a platform to deal with the decorum in Canadian politics?  That would be the grown up thing to do.  Unfortunately we’re going to be stuck with Conservative attack ads in the next election. The media consortium will back down, because legally it would be the battle of their life time with several precedents moving forward in favor of the Conservative’s position on fair dealing.  What we can do as Canadians, is vote.  If you don’t like attack ads, than don’t vote for the attacking party.  Plain and simple.

As far as journalistic integrity goes,  it’s not attack ads journalists have to worry about. It’s attacking the very principles within copyright law that allow for free press and free speech that does the most damage to a journalists reputation. This is coming from someone who received his broadcast journalism eduction at Niagara College in the 90’s which back then was the root school for CTV!  I got to know a lot of the CTV executives during my education there, and not one of them would have ever tolerated such bias around reporting like I’ve seen from CTV on this issue over the past few days.  In fact, if we had presented bias in our news reporting we would have been failed and kicked out of the course.  I’ll tell you this, I have a lot of thinking to do on exactly who I trust for political commentary after this story.  It puts questions on how independent our free press is, especially when commenting on important public policy such as copyright.  That’s way more disturbing to me than attack ads which I don’t pay attention too in the first place.

UPDATE: Another excellent post by copyright lawyer Howard Knopf on the fact that media themselves are now starting to become part of the story, with documentation accessed through access to information.  The documentation seems to suggest a planned political attack against the Conservatives by our major media news outlets, coordinated by CBC; all the while knowing their position on copyright and attack ads was very weak legally.

See also:

Conservatives Propose to “Amend” Fair Dealing Not Replace It

My Canadian Broadcast Standards Council Complaint on Media Consortium

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  1. May 14, 2015 at 11:23 AM

    Goodness gracious Canada… What happened to our cherished Internationally envied country over the past 10 years??? Time to retake our place & remove the rot. Vote these clowns outta-town but fast! Be neither fooled nor swayed any longer & place that VOTE beside CHANGE. Great article btw. The root of all evil hidden in the small print.. how typical & negligently unethical, let alone immoral. What goes around comes around as well what goes up certainly must come down. This is tiring to have to endure in a ‘democratic’ country & this status quo is wholly unacceptable.

    • May 14, 2015 at 11:42 PM

      Did you read the article? The consortium is in collusion to ensure there’s a change of government.

  1. October 11, 2014 at 4:30 PM
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