The “Whale of Tale” is Finally Over: Cetaceans and Copyright Controversies

Source: pixabay.com

Gary Charbonneau has won! You may remember Charbonneau as the independent film maker who made a crusading documentary criticising the Vancouver Aquarium for keeping cetaceans (whales, dolphins and porpoises) in captivity and on display. He used, without permission, some of the Aquarium’s footage in his film, lifting it from the Aquarium website (in violation of its terms of service) as well as using some footage he shot within the facility itself. The Aquarium sued, claiming copyright violation, seeking to have the film blocked. I first wrote about the case almost two years ago. (here). In a recent development, the Aquarium has announced that it has thrown in the towel, bowing to public opinion, and will no longer keep whales and dolphins in captivity.

Keeping cetaceans in captivity is an emotionally charged issue and the Aquarium, despite its world renowned research work in this area, has been fighting an uphill battle against growing negative public opinion. The nail in the coffin for the Aquarium was not really Charbonneau’s film (more on that later) but the fact that four of the Aquarium’s cetaceans have died from unexplained causes in the past year. One of the most famous “inmates”, “Aurora”, a 30 year old Beluga (and the last Beluga held at the Aquarium) died in November 2016, just 9 days after her calf was found dead in the Aquarium. “Chester”, a rescued false killer whale, died a year later. Public reaction was strong and the elected Vancouver Park Board, which oversees the Aquarium voted, in May 2017, to ban the Aquarium from bringing in any new cetaceans. This was challenged by the Aquarium, which questioned the Board’s authority before the British Columbia Supreme Court. The Court ruled that the Board had exceeded its authority but the decision now seems moot as the Aquarium has finally accepted reality; it has lost public support and as a result will change its policy. In the meantime, the Aquarium’s copyright suit against Charbonneau was wending its way through the court system.

Gary Charbonneau can probably justifiably take some satisfaction from the outcome, although the copyright issues (after all—this is a copyright blog) were never really clarified. As a first step, the Aquarium sought a court injunction preventing Charbonneau from showing the infringing content. They won that injunction, although the court ruled that the film could continue public showings as long as the infringing content was excised. In all Charbonneau was required to remove about 15 clips amounting to a total of about 5 minutes in the film. Both sides claimed victory, as I discussed in another blog at the time. Charbonneau claimed a fair dealing defence of use for research and educational purposes, which was a stretch—but not tested in court.

Subsequently, in November of last year, the injunction was overturned. The court ruled that the 15 clips, if left in the film, would not cause “irreparable harm” to the Aquarium and, moreover, that there was an issue of freedom of expression that overrode any potential harm. Charbonneau said he would re-insert the clips. However, the underlying copyright infringement issue was never addressed–and now this case will not go to trial.

Some will say the issue was never really about copyright infringement in the first place, but rather about whether it is appropriate to keep cetaceans in captivity. Those opposed to the Aquarium’s policy claimed that the institution was trying to use the allegation of copyright infringement in the film as a means to stop its circulation and exhibition, not because the Aquarium’s copyright was violated but rather because of the film’s message. In other words, using copyright as a means of censorship. If the intent was to block viewing of the film, the Aquarium was spectacularly unsuccessful. Not only did the publicity generated by the case ensure that lots of people who had never heard of Charbonneau’s film search for it out of curiosity, but the removal of the copyrighted clips did not affect the film’s underlying message.

So was it a smart strategic move for the Aquarium to have launched the copyright action? Given the final outcome, perhaps not. However, there is still the question of copyright principle involved. In my view the Aquarium was fully entitled to defend its intellectual property and not have it used in ways they regarded as improper. As for the accusations of “censorship”, this doesn’t hold water. In response to accusations by Charbonneau’s lawyers that the Aquarium was trying to block distribution of the film, the Aquarium’s legal team offered the reasonable solution of editing out the disputed material, which was the remedy accepted initially by the court. In the end, the Aquarium’s action may have backfired in the court of public opinion (and the initial injunction based on a claim of “irreparable harm” was not upheld) but since the case will now not be adjudicated (the Aquarium has dropped its suit) we will not know if the allegations of infringement would have prevailed in a court of law.

It is interesting to speculate whether the court would have found that Charbonneau’s use was a legitimate fair dealing or not and, if it was, what exception would have authorized his use of the material. He had argued that his film was produced for “research and educational purposes”, thereby justifying his use, but the education fair dealing exception is very specific on how, where and by whom materials can be used without permission. That exception is an unlikely fit. He did not make the film for private study; in fact he made it for just the opposite purpose, public display, so that exception does not apply. He might have tried to argue the UGC (user-generated content) exception but his use of the Aquarium footage was arguably commercial so probably would not have qualified. I cannot say with confidence that Charbonneau’s use was not a fair dealing, but I find it hard to think that it was, although this did not stop anti-copyright advocate Prof. Michael Geist from claiming that this was a case of fair dealing protecting freedom of expression. But whether it was a fair dealing was never decided, as Geist himself admits (“The court did not issue a definitive conclusion – it limited its discussion to agreeing that fair dealing was not properly assessed at trial”). The freedom of expression issue arose from the Charter of Rights and Freedoms, not because the use was a fair dealing.

In any event, in terms of venturing an opinion on this case, I have the ultimate escape-hatch. I am not a lawyer! No doubt my friends in the legal fraternity would have had fun litigating this.

In the end, does it really matter? Gary Charbonneau may have infringed the copyright of the Vancouver Aquarium, and he might possibly have lost that legal battle, but in the end many will say that he won the war. And, in the long run, so did the whales.

© Hugh Stephens, 2018. All Rights Reserved.

One thought on “The “Whale of Tale” is Finally Over: Cetaceans and Copyright Controversies”

  1. Hugh wrote: “He used, without permission, some of the Aquarium’s footage in his film, lifting it from the Aquarium website (in violation of its terms of service) as well as using some footage he shot within the facility itself.”

    The aquarium’s terms of service is a website “contract” that outlines what a user can (and cannot) do with the aquarium’s copyright-protected footage and other materials.

    It looks like Canada’s “Fair Dealing” copyright provision can override these types of contracts.

    Like

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