Whales, Copyright…..and Censorship?

Slide1A couple of months ago a story about the Vancouver Aquarium and copyright infringement caught my attention. It is not every day that whales and copyright get discussed in the same sentence. In this case the Aquarium had brought a lawsuit alleging copyright infringement against film-maker Gary Charbonneau, accusing him of lifting segments of his film (which was highly critical of the Aquarium’s whale, porpoise and dolphin program) from the Aquarium’s website without authorization. It was an interesting subject for a blog, I thought, illustrating the importance of copyright principles in daily life. A month or so later, the British Columbia Supreme Court issued an injunction at the request of the Aquarium requiring Charbonneau to remove from his film 15 contested segments, amounting to about 4 ½ minutes out of an hour long film. I updated my original blog to keep those interested informed of developments, and thought that would be that. But I was wrong. The “Whale of a (Copyright) Tale” story is the gift that keeps on giving, at least in terms of generating discussion of copyright issues.

Imagine my surprise at being accused by TechDirt blogger Mike Masnick of being a “copyright maximalist” and advocate of “copyright as censorship” for reporting on Charbonneau’s travails, and for suggesting that he could have avoided a lot of trouble for all concerned by sourcing in a way that clearly avoided copyright infringement material that the film-maker himself described as “filler”. (Mind you, we don’t know that Charbonneau actually infringed since he is claiming a fair dealing defence based on the new educational exception in Canadian law and the fact that his film is non-commercial, notwithstanding some paid public performances that have been held). Those issues will be decided later at trial. Now, if being a “copyright maximalist” means that I believe that a copyright creator/owner has the right, subject to the exceptions provided for in law, to decide whether and how to authorize the reproduction and distribution of his or her work, based on their assessment of their best interests, then I plead guilty.

Is this censorship? Censorship is a strong and loaded term. When China’s “Great Firewall” blocks search results that the Chinese leadership doesn’t like politically, that is censorship. Exercising one’s rights to control how and when publicly available copyrighted material is used (or misused) by others is a completely different issue. It is certainly not censorship.

Masnick, in pursuit of his censorship thesis, goes on to say that;

“1. The Vancouver Aquarium did not need copyright to produce videos to put on its website. It made those videos to help market the aquarium.

  1. The Vancouver Aquarium did not sue Charbonneau because they were concerned about copyright.
  2. The Vancouver Aquarium did not sue Charbonneau because they were protecting the vast licensing market for the marketing videos they put on their website.
  3. The Vancouver Aquarium sued Charbonneau because they don’t like his film, wanted to make life difficult for him and wanted to censor the film.”

This line of argument suggests that unless the Aquarium was engaged in licensing its intellectual property, it had no right to protect it. This is a narrow, unfounded and restrictive view of the rights of a copyright holder. Let’s look at this assertion in the context of what copyright is all about.

There are many explanations and interpretations of what rights copyright confers but I thought that the website of the World Intellectual Property Organization (WIPO) was as good a place to start as any. According to WIPO, “the owner of copyright in a protected work may use the work as he wishes, and may prevent others from using it without his authorization”. (WIPO does not use gender-neutral language you will note). Another respected source, the British Library defines copyright as, “a legal right, giving the owner control over their work and how it is used. It gives creators protection against use of their work without permission. There are many other similar definitions but these will suffice to make the point. It is the right of the owner of the work to decide how it is used.

Of course we know these rights are subject to exceptions or, in the case of the US (and not applicable to this particular case), a fair use defence. Whether Charbonneau’s use fell within the legal exceptions is the fundamental issue to be decided at trial, but in the meantime the rights-holder claimed injunctive relief—which was granted by the Court. Leaving aside the question of whether or not Charbonneau’s use was a fair dealing, Masnick seems to believe that since Charbonneau’s actions did not, in his view, negatively affect licensing revenues for the content he used, the Aquarium has no legitimate grounds to exercise its legal right to authorize (or withhold authorization) of reproduction. This conclusion completely ignores the fact that not only was the Aquarium exercising its legitimate right to authorize reproduction of material that it owned, but there was also a legitimate economic reason to do so given the potential impact on its general revenues from Charbonneau’s film, an outcome brought about–at least in part–from infringement of the Aquarium’s copyright (assuming the complaint is upheld at trial).

It’s worth noting that the rights we are talking about are economic rights, and there seems little doubt that the Aquarium could make an argument that allowing Charbonneau’s film to be publically available in its unexpurgated format, involving unauthorized use of footage filmed by Aquarium employees and belonging to the Aquarium, could have economic consequences. There are also moral rights that apply in Canada, although the actual creator of the film clips in question rather than a corporate body like the Aquarium would have to assert these. It is interesting to speculate what the outcome would be if a moral rights challenge were also launched. Parenthetically, one of the most famous Canadian cases involving moral rights involved the artist Michael Snow, who created a sculpture of flying geese which he sold to the Eaton Centre—a large shopping mall– in Toronto. When the Eaton Centre wanted to put Christmas ribbons on the geese, Snow sued—and won. Perhaps he could be accused of copyright censorship! After all, he was depriving the good people of Toronto the right to see his Canada geese draped in Christmas red!

But let’s get back to Masnick’s criticisms. Was the Aquarium trying to “censor” Charbonneau’s film? They were certainly unhappy with its editorial stance, but there was a straightforward solution outlined by the Aquarium’s legal counsel in a letter to Charbonneau’s lawyers;

Your clients can, of course, simply remove our client’s copyrighted material from the offending video, and they have had that option from the start. The availability of this rather obvious solution answers any suggestion that an injunction harms or inconveniences him in any material way. Kindly ask your clients to give serious consideration to doing so.”

This sounds more like someone exercising their right to control the reproduction and public distribution of material they own rather than someone trying to censor the film, as Masnick claims.

I don’t expect to convince Mike Masnick (his mind seems already made up), but to conflate the exercise of one’s rights to prevent unauthorized misuse of copyrighted material with “censorship” is one whale of a misrepresentation.




2 thoughts on “Whales, Copyright…..and Censorship?”

  1. Mr. Stephens: One minor quibble with your post: You state, in the matter of asserting moral rights, “…although the actual creator of the film clips in question rather than a corporate body like the Aquarium would have to assert these.” Section 14.1 (4) of the Act states: “Where a waiver of any moral right is made in favour of an owner or a licensee of copyright, it may be invoked by any person authorized by the owner or licensee to use the work, unless there is an indication to the contrary in the waiver.” I am not aware of whether the creator has waived her or his moral rights to the material in question, but is he/she has, then the Aquarium could potentially seek to engage these rights in additional to its economic rights.


    1. Thanks for your comment. I take it that to be legally correct that I should edit the blog to read, after the word “these”, “unless the creator has waived his or her moral rights, in which case the Aquarium could potentially exercise them”. I appreciate the clarification.


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