Copyright and Politics: Interesting Bedfellows

source: shutterstock.com

On June 22 of this year, Christy Clark, Premier of British Columbia, commonly called “BC”–where yours truly happens to live–presented her party policy platform (aka the “Speech from the Throne”) to the BC Legislature. Ms. Clark and her BC Liberal Party had just won 43 seats out of a possible 87 in the election concluded the previous month. (You may have noticed that 43 is not quite a majority—and that is the nub of the issue). In her policy speech, which is the first act of a new government where it must gain the “confidence of the House” by having its policy proposals approved by a majority vote, Ms. Clark performed a remarkable political turnaround.

The speech that she presented outlining what her government intended to do for its next four years in office was cribbed holus-bolus from the platforms of the two opposition parties. Just six weeks prior Ms. Clark and the Liberals had run on a platform that was remarkably different, indeed opposed, to the proposals she was now putting forward. Ms. Clark now claimed that she was “listening to the will of the people”; others called it crass political opportunism and hypocrisy of the highest order in a desperate bid to hang on to power. No less than 30 pledges were put forward by the Liberals that were not in their campaign platform, most of them lifted from the platforms of the two other parties.

Ms. Clark needed to win that confidence vote. Her Liberal Party, with 43 seats out of 87, had won the most seats but not quite achieved a majority. The main opposition party, the New Democrats (NDP) got 41 and the Green Party won 3. Add the totals for the NDP and the Greens together and, voila, you have a new government by a 44-43 count. But of course it’s not that easy.

Normally a sitting Premier (or Prime Minister) will have no difficulty in getting his or her first piece of Parliamentary business, the Speech from the Throne, passed easily as the government will have a clear majority. But this time around, Christy Clark knew she was vulnerable. The NDP and the Greens had already announced that they would cooperate to defeat the government, which would force her to resign. And then they would have their turn at the helm.

This was the dilemma Ms. Clark faced. Her strategy was to try to pry the Greens away from the NDP by adopting much of their—and the NDP’s—policy proposals, despite the fact that those who had voted for her party had explicitly not endorsed these policies. (The proposals included a wide range of spending priorities, from increasing welfare rates to bringing in subsidized day care, to election funding reform to abolition of bridge tolls). The purse strings were suddenly loosened. Money that was unavailable prior to the campaign was suddenly on the table due to an “unexpected surplus”. The commentary, as you can imagine, focussed on the government’s policy flip-flop. Respected political commentator Les Leyne called the Throne Speech “blatant plagiarism”. Leyne went on to say,

“By the end of the speech, they (the opposition) were probably kicking themselves for not copyrighting their campaign platform. They could have made a fortune in royalties based on how much of it the Liberals sampled”.

Leyne of course was being facetious, but it was this comment that got my brain ticking over and thinking about politics and copyright. Is there copyright dimension to politics? Of course there is.

(Apologies for this long windup; now…to the point).

As we all know, copyright does not protect ideas, only expressions of ideas. Is a political platform the expression of an idea? This would be pretty hard to prove, but in any case most political parties stand for different policy positions; they don’t hijack the platforms of their opponents although it is longstanding political practice for a party, once in power, to suddenly realize that some of the policies espoused by the previous government, or its opponents, are not so crazy or irresponsible after all.

Nonetheless copyright does play an important role when it comes to elections and politics. Ohio State University’s Copyright Corner has an interesting examination of copyright in campaigns. It points out a basic fact that original political speeches written by campaigners or speechwriters are copyright protected. However a speech made by an incumbent would not be protected if that speech was delivered in the course of their official duties (what about Mr. Trump’s tweets, one wonders).

Copyright infringement can occur when a candidate incorporates comments he or she made in a broadcast into their campaign materials, without the broadcaster’s permission. Two well-known examples of this happening are Fox News’ cease and desist letter to John McCain in the 2007 campaign and NBC’s similar letter to Barack Obama the following year.

Campaign songs are a fertile area for copyright controversy, since often campaigns will lift excerpts of a song or piece of music to promote excitement at an event. Then the fun begins. Sometimes this is just the result of a zealous junior staffer who has unilaterally decided to select a piece of music that appeals to them. Sometimes however the selection of the music is more considered and actually woven into campaign ads. That was the case in the 2014 New Zealand election where the ruling National Party chose music which closely resembled Eminem’s “Lose Yourself”. Eminem’s publishers sued. That case went before the New Zealand court in Wellington in May and a decision is pending. Eminem is seeking a cash settlement and acknowledgement of copyright infringement.

Often the copyright holders of the appropriated music may not agree with the political views of the candidate, as was the case in 1984 when Bruce Springsteen objected to Ronald Reagan’s use of his song “Born in the USA” in Reagan’s re-election bid or more recently Neil Young’s objection to the use of his “Rockin’ in the Free World” by the Trump campaign, as reported by Rolling Stone in an amusing article about 35 artists who have, over the years, objected to political use of their music. This kind of dispute has even gone to court in the US with Jackson Browne suing, and then settling with, the McCain campaign in 2008 over use of his song “Running on Empty” in TV campaign spots. Political beliefs were not the motivation in the Eminem case however, as his staff claimed he had no knowledge of New Zealand politics. The objection was to the use of his music in a political advertisement, period.

The use of music in political campaigns is so tricky that Music Canada has published a full guide on its website to help candidates with the “do’s” and “don’ts” regarding the use of music during an election.

Negative political ads are yet another area where copyright could be implicated when Candidate A uses material produced by Candidate B to criticize that candidate in publicly available materials. Copyright Corner lays out some ground rules;

Copyright does not protect facts. An opponent’s stated political position or voting record, for example, are facts that could be used freely by candidates in political advertisements.

However third party copyrighted materials containing statements by a candidate could be protected unless a fair use or fair dealing exception could be invoked (e.g. news reporting).

So, all in all, the best advice to political candidates is to be careful and to be aware of copyright considerations when putting campaign material together. That is not to say that the BC Liberals were guilty of copyright infringement by adopting most of the planks in the platform of their opponents, but they certainly could be accused of plagiarism—and bad political judgement. As a footnote, Ms. Clark’s ploy did not work. Her government was defeated in a confidence motion, she resigned both the premiership and subsequently her seat in the Assembly, and there is now a new Premier of British Columbia. That’s politics.

© Hugh Stephens 2017. All Rights Reserved.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s