Canada’s Election and the Election Copyright Controversies…Were There Any Actual “Winners”?

Here I am a few days after the Canadian election, sifting through the results, trying to figure out who really won—politically and in terms of the copyright controversies that came out of the campaign. Among the six political parties that contested the election it is pretty hard to find a clear winner except perhaps for the nationalist/separatist party in Quebec, the Bloc Quebecois, which increased its seat count substantially. The Liberals lost 20 seats and a million votes although managing to cling to power, the Conservatives proved to be uninspiring to most of the country and came nowhere close to winning a majority, the New Democrats also lost 20 seats and fell from third to fourth party (while seeming to revel in some sort of self-declared victory), the Greens underwhelmed, going from all of two seats to three, and the nascent People’s Party failed to elect even its leader. It was a bitter, divisive campaign with lots of personal attacks, dirty-tricks and mud-slinging. No real winners here.

If it is hard to figure out who really won politically, it is equally hard to find winners in the two copyright controversies that popped up just before and during the campaign, both involving the state-owned national broadcaster, the CBC. I wrote about the one that occurred early on, when various pollsters objected to the unauthorized use of their polling data by the CBC (known in French as “Radio-Canada”). The CBC was taking data from various polling firms and aggregating it into a national “poll tracker”, a compilation of publicly available polls. The broadcaster then went one step further and used the polling data (that measured voting intentions) to produce a predicted seat count by party. This was really the nub of the objection by the pollsters. They argued that the polling data they were producing was not a predictive model for a Parliamentary seat count, and not only was the CBC using their data without permission and payment (the economic argument), it was using it for an end that was not intended (the moral rights argument).

The CBC dismissed the allegations, arguing that all they were doing was using public information. The current model of the “poll tracker” states that it “aggregates all publicly available polling data”. That is because some of the pollsters, like Nik Nanos, put their regional polling results behind a paywall. Even if information is publicly available however, this doesn’t mean that it is not under copyright or can be used willy-nilly, but of course there are exceptions to copyright protection, in Canada known as fair dealing. One of these exceptions is news reporting. To use the news reporting fair dealing exception, the source must be attributed, which the CBC did, even providing links to each of the pollsters public reports. So as much as the pollsters were not happy with their work being used in a way that they did not intend (prediction of seat count), copyright infringement would probably be difficult to prove in court. The CBC did not desist when asked and the pollsters did not take legal action to force the issue. Score one for the broadcaster.

One outcome that the pollsters can take satisfaction in, however, is that they were remarkably accurate in assessing the support levels for each of the parties. It was a tough, nasty neck-and-neck campaign between the two major parties as far as vote count was concerned, and all the pollsters had the Liberals and Conservatives polling in the low 30% range, and within a point or two of each other, and predicted the correct outcome, a Liberal minority government. The final vote tally bore out these predictions almost exactly. The pollsters gave the New Democrats and the Greens slightly higher popular vote numbers than they actually achieved, but they were close in their predictions. It was the seat count, extrapolated by the CBC from the pollsters’ survey of voter’s expressed preferences, that was off the mark for three of the four major parties. The last poll tracker published the day prior to the election gave the Liberals 137 seats, twenty less than they actually achieved, and the New Democrats 35 seats, eleven more than they got. The seat count for the Bloc was also over-estimated. That shows the difficulty of translating the popular vote into actual seats because of the concentration of votes in some regions of the country and vote-splitting between parties. Thus, although the Conservatives actually got more total votes than the Liberals, they got 36 fewer seats because the Liberal vote was more evenly spread across the country. So maybe the pollsters were winners in this tug-of-war with the CBC after all, proving that the popular vote doesn’t easily translate into Parliamentary results. Score one for the pollsters.

There was a second election copyright controversy also involving the CBC that emerged just days before the final vote. This time, instead of being the alleged infringing party, it was the one claiming infringement. But rather than just complain, the CBC actually filed suit against the Conservative Party for using broadcast clips in its partisan attack ads.

The use of clips taken from publicly aired broadcasts for partisan political purposes is one of the difficult grey areas of politics. It has come up frequently in the US and in the past in Canada. In the US, one of the more well-known incidents occurred in 2007 when Fox News accused the McCain presidential campaign of copyright infringement for the unauthorized use of its news clips in McCain’s campaign. McCain ignored Fox’s cease and desist letters (on the grounds that the clips were a fair use) and the issue was dropped. There have been instances in the US, however, where courts have blocked politician’s use of broadcast material, as occurred a few years ago in a case involving C-SPAN, the non-profit public service network created by the cable industry. C-SPAN was successful in obtaining an injunction against William Federer, a candidate for the US House, preventing him from using material lifted from the network to attack his opponent, but Federer was able to launch a quick appeal and get the injunction lifted. Normally these cases don’t get litigated because of the time and expense, combined with the fact that the issue is driven by election timing, and once the election is over the issue seems not worth pursuing.

This doesn’t mean that broadcasters like their material being used without authorization. The Radio-Television Digital News Association (RDTNA) in the US has advice for its members. It points out that under the very liberal US fair use doctrine, proving copyright infringement will be difficult and suggests instead that stations be transparent and explain to their viewers that use of their broadcast material by political campaigns does not mean endorsement or support of those political positions.

Because of the US fair use doctrine, and the increasing influence of US-style politics and campaigning on Canadian elections, the issue of unauthorized use of broadcast content for use in political ads has come up several times in Canada. In each instance it is the Conservative Party that has pushed the boundaries, first in 2007 when they used excerpts without permission from the Liberal leadership debates held the previous year. In the 2011 election, the CBC complained that the Conservatives were using CBC clips without authorization to attack then Liberal leader Michael Ignatieff. The Conservative Party responded by arguing that a similar clip was used in the US so therefore it must be fair in Canada. Copyright critic Michael Geist wrote at the time that “the problem with this argument is that it mistakenly presumes that the US fair use provision covers the same ground as Canadian fair dealing. It doesn’t….it is far from certain that the current fair dealing provision covers this particular use”.

At that time the only fair dealing provisions in Canadian law were for research, private study, news reporting, criticism and review. Geist opined that “The use of these clips might be squeezed into criticism but it is far from certain that a court would accept the argument”. The thrust of Prof. Geist’s argument was that fair dealing was too restrictive, and that Canada should adopt a US-style fair use provision, a position that he has long advocated. Shortly after this the Copyright Modernization Act was introduced and when it came into effect it added several additional categories to fair dealing, namely parody, satire and education, although open-ended US-style fair use was not adopted. The new law also added another exception for user-generated content (UGC), that is, a new work that would be eligible for copyright protection in its own right that is built upon or incorporates the copyright protected work of another. (Teresa Scassa, prominent IP academic).

Fast forward to the 2015 election, and the Conservatives were at it again. This time it was tasteless ad associating Liberal leader Justin Trudeau with ISIS, drawing on, among other content, a CBC interview. The CBC asked YouTube and Facebook to take down the ads and Jennifer McGuire, Editor-in-Chief commented; “No-one—no individual candidate or political party and no government, corporation or NGO—may re-use or creative and copyrighted content without our permission”. The Conservatives when in government had considered making it a lot more difficult for the CBC or other broadcasters to defend this position by introducing a specific law to allow the free use of news content in political ads, such as attack ads. The provision was buried in an omnibus bill that packaged many legislative provisions together, but once it became public it aroused a furore and the provision was quietly dropped. Despite the lack of legislation specifically permitting this particular unauthorized use, the Conservatives were not deterred from trying again (the ISIS ad).

This time, in 2015, in a change of position Michael Geist concluded that the Conservatives had a good defence, either because they had used only insubstantial parts of the content (although what is substantial or insubstantial can depend on more than length of a clip), or because they had a valid fair dealing defence. He cited criticism, research or news reporting as fair dealing possibilities, all of which existed in 2011 when he had argued that the fair dealing provisions were insufficient, so one wonders what changed other than the addition of parody, satire or education to fair dealing, none of which apply in this case. He also mentioned the new user generated content exception as an outside possibility for a defence, although this would be a longshot and most likely not applicable because it is supposed to relate only to individuals and be used for non-commercial purposes.

Now let’s jump to the present, and look at the most recent unauthorized use of CBC content by the Conservative Party in the election just finished. Geist was scathing in his criticism of the CBC’s lawsuit, claiming it was a “strategic blunder” backed by weak legal arguments. It was, to say the least, a “courageous decision”, the epithet often applied to a course of action that could bring on unintended consequences. It is no secret that the Conservative Party holds a barely disguised disdain for the CBC, despite the fact that the Canadian Radio Broadcasting Commission, the forerunner of the CBC, was created by a Conservative government in the 1930s. This may explain why the Conservatives have repeatedly ignored the CBC’s position regarding unauthorized use of its content, unlike other political parties which, to my knowledge, have not flouted the policy. To underline its position, when in power in 2012, the Conservatives cut the CBC budget by ten percent or $115 million over three years. These cuts were reversed by the Liberals when they formed government in 2015, and they even added an additional $35 million. Suppose the Conservatives had managed to triumph in the recent election? Can you imagine how they would have treated the CBC, having just been sued by the Corporation for copyright infringement? It wouldn’t have been pretty.

Given this political backdrop, suing the Conservative Party was either a courageous stand on a matter of principle or a highly risky suicide mission by the CBC. I prefer to think of it as the former. In defending its actions, the President of the Corporation, Catherine Tait, said that the CBC had made clear to all political parties at the start of the current election campaign that it would not tolerate the use of its content in partisan ads and it would take action against any party if that happened. Tait is quoted as saying;

“All public broadcasters depend on public trust…They can’t exist without it. People must have confidence that the public broadcaster and its journalists are impartial; that they exist to serve the public and not the government or any political party…Using our content, and footage of our journalists out of context, risks creating the impression that CBC/Radio-Canada supports the messages in the advertising…Even worse, it leverages our reputation for trust and impartiality in order to give legitimacy to a partisan position….CBC/Radio-Canada does not take sides in election campaigns…but if we allow our material to be used for partisan purposes, then we risk appearing to have done precisely that.””

The CBC’s position is clear, but is it legally sound? Michael Geist clearly thinks that it is not, and has repeated the arguments that he made back in 2015 that the use by the Conservatives is not infringing either because the use is insubstantial or is covered by fair dealing or possibly because of the UGC exception. The CBC, in its statement of claim, argues to the contrary that the clips were substantial and qualitatively significant. It states that the use was for partisan and promotional ends and meets none of the permitted fair dealing exceptions. Moreover the excerpts are taken out of context and selectively edited. Doing so presents a “sensational and one-sided perspective” that could lead viewers to believe the CBC is biased. The claim points out that a legally available alternative existed by linking to the CBC content. The CBC also invokes moral rights, noting the damage to the reputation of the individual journalists and producers involved. This no doubt explains the initial inclusion of two CBC presenters in the case. The two individuals were subsequently dropped (we can only speculate why) and the CBC later made it clear that the case was being initiated and pursued by the Corporation in its own right, not by the named individuals. The CBC is seeking both an interim and a permanent injunction restraining the respondents from further publishing infringing materials.

This is pretty strong stuff, and I am not going to hazard a guess as to the likelihood of the CBC’s claim succeeding. (They did succeed in getting the Conservative Party to take down the website and social media links almost immediately). There are no doubt good arguments to be made that there is a fair dealing or insubstantial use defence, but as Michael Geist said back in 2011, it is far from certain as to how a court will rule. The CBC also has smart lawyers and they must have felt they have a solid case or would not have exposed the Corporation to the risk that it is taking. If the use by the Conservatives is found to be non-infringing, it will open the flood gates to more manipulated use of CBC footage in future campaigns, especially as the campaigns get nastier and more personal. If however, the Corporation prevails, it will go a long way to protect what the CBC considers to be its non-partisan reputation and clarify the limits of fair dealing. (If the Conservative Party loses, if and when it once again forms government, expect that the legislation legalizing political use of broadcasting material will quickly resurface). Thus, if the CBC wins this time, it may lose in the end. And maybe it has already lost by making a permanent enemy of the official opposition party which may one day again form government. You win some; you lose some.

It is ironic that in defending its reputation, the CBC took strong action against what it sees as infringement of its own copyrighted material, rejecting the fair dealing argument, while at the same time in effect daring the pollsters to take it to court to prove that the Corporation’s unauthorized use of their copyrighted polling material is infringing.  In the end, I have to ask myself whether there were any real “winners” in these election copyright controversies.

© Hugh Stephens, 2019. All Rights Reserved.