Using Copyrighted Broadcast Content without Authorization to Produce Political Attack Ads: “All’s Fair” Rules the Federal Court in Canada
We all know that politics is a blood sport. If you can discredit your opponent by casting doubt on their integrity, intelligence, judgment or whatever, this is perceived to bring political gain. As much as many Canadians bemoan the introduction of “US-style” negative campaign ads, they have become a feature of political campaigns in many countries. Political strategists must think they work or else they would not see such frequent use. In Canada, the Conservative Party are masters of the “attack ad”, although they certainly do not have exclusive rights to the technique. In 2011 they attacked Liberal leader Michael Ignatieff as “just visiting”, because of the more than 30 years he had spent abroad as a journalist and academic. They won that election. In 2015, Justin Trudeau was the target with the slogan “just not ready”, alluding to Trudeau’s supposed lack of political experience. The fact that Trudeau’s Liberals thrashed the Conservatives in that election begs the question of what impact the slogan had.
To develop attack ads you need material, and what better material than footage of the candidates themselves, engaging in contradictions, waffling or putting their foot in their mouth. And if they aren’t clumsy enough, there is always selective editing, juxtaposing earlier statements against ones made later, all bundled together with provocative voice-overs and music. And what better place to access this material than to pull it off the airwaves, from debates, political panels or news shows. However, most of this material is protected by copyright, and its use for partisan political ads is the nub of the issue.
The Conservative Party of Canada (CPC) has made no secret of its desire to use clips culled from broadcasts to assemble into political ads. In 2014, when still in power as the government of the day, the Conservatives proposed to introduce an amendment to the Copyright Act to provide an exception to copyright exclusivity for the narrowly targetted purpose of using copyright protected material in a political campaign by candidates and parties. It was going to be buried in a much larger omnibus budget bill but after the proposal was “outed” and drew criticism, it was quietly dropped.
The proposed amendment to the Act was criticized from several perspectives. Apart from comments by the Liberals that it showed how “underhanded” the Conservatives were, another objection was that if fair dealing exceptions were to be broadened to allow use of news clips for criticism, this should be applied widely and not just limited to political operatives. Others argued that an amendment to the Act was not necessary because use of copyrighted material in a political campaign would likely already be permitted by existing fair dealing exceptions, such as news reporting, criticism, parody or satire. In the 2019 election the Conservatives put that assumption to the test by using a series of clips from the CBC and other broadcasters in attack ads against Justin Trudeau, which they posted on Facebook. The CBC requested that they be taken down. Even though the Party obliged, the CBC sued, seeking an acknowledgement from the Conservatives that the Party had engaged in the unauthorized use of copyrighted material.
The CBC wasn’t seeking damages and it dropped a request for an injunction after the Conservative Party complied with the request to take down the ads that used CBC footage. Rather, it was trying to establish the principle that use of its footage by a political party in an election campaign undermined its status as a neutral national broadcaster. The clips were clearly from the CBC. Some of them bore the CBC logo, a factor used by the Respondents to support their claim that the “criticism or review” fair dealing exception applied in this case. (To invoke this exception, the material has to be attributed to the original source). Others featured well-known CBC presenters and journalists.
The CBC’s dilemma is similar to the one faced by the BBC in the 2019 “Brexit” election. The Conservative Party in the UK used BBC footage to put together anti-Brexit ads that appeared on Facebook. The BBC filed an objection with Facebook over unauthorized use of its copyright-protected material, and Facebook took down the ad. Although the UK Conservative Party wasn’t happy, that was the end of the matter. In Canada, the CBC decided to go one step further by seeking to obtain a court ruling confirming that such use is an infringement of copyright, knowing that the Canadian Conservative Party would use the tactic again. That decision has just (May 13) been rendered by the Federal Court. The CBC lost.
The decision is an interesting one to read. As is usual in court cases, the Respondents presented several lines of argument in defending their position. Some of these were dismissed. The Court confirmed that not only was the material subject to copyright, but the Respondents taking of content was substantive, even though the clips themselves were just a very small part of each broadcast. The facts of news cannot be protected by copyright but the expression of those facts (i.e. the comments of Justin Trudeau as broadcast by the CBC) are subject to copyright. As the Court noted, the broadcast incorporated “the artistic design, production services (lighting, camera work, audio, etc.) and journalistic decisions (i.e. the flow of discussions and the election and posing of questions) which are the skill and judgment of the CBC and their employees”, making it a creative work subject to protection. The use of that creative work was substantial. The judge also accepted the bona fides of the CBC’s complaint, noting that as a state-owned corporation it was reasonable for it to try to protect its image and reputation as being politically non-partisan. Yet the Court did not find adverse consequences for the CBC’s reputation from the use of its broadcast content in partisan attack ads, terming any adverse impact as “speculative”.
Having established that the material was copyrighted and the taking substantive, the Court then came to the nub of the issue; was the Conservative Party’s use of the material a fair dealing, thus providing an exception to copyright protection? In ruling that the use was fair, the judge focused on the fair dealing exception of “criticism”. Unlike the fair use doctrine that applies in the US, for an unauthorized use of copyrighted materials to be considered a “fair dealing” in Canada (and in other countries with fair dealing laws), the use must fall within the four corners of the exceptions specified in legislation. Since 2012, in Canada these are research, private study, education, satire, parody, criticism, review or news reporting. A fair dealing must also meet other criteria that have been established through earlier Court rulings. These are the purpose, character, and amount of the dealing; the existence of alternatives, and the nature and effect of the dealing on the copyrighted work. The Court uses these criteria to determine whether, on balance, the dealing is fair even if it falls within the specified exceptions (an allowable purpose).
In finding an allowable purpose that would shoe-horn the Party’s use of the clips within the specified fair dealing exceptions in the Copyright Act, the Respondents cast a wide net, arguing that any or all of the following applied; criticism and review, satire and education. All but criticism were rejected by the Court but in finding that the use qualified as “criticism”, the judge took a liberal interpretation of the meaning of the term. CBC had argued that “criticism” applied only to critiques of the program itself (which is the genesis of the criticism and review exception, allowing theatre critics, for example, to reproduce or quote from parts of a play or movie in order to review or critique it). However, the judge found that criticism encompasses not just the form of the content, but the ideas contained in it. In this case, the criticism included “the ideas and actions of the Prime Minister and the Liberal Party in the sense of fault finding.”
So there you have it. The CPC’s use of the CBC’s clips for political attack ads was not an infringement of copyright; rather, it was a fair dealing based on the specified purpose of criticism. That will clarify matters going forward and I can confidently predict that whenever the next election occurs, we will see lots of attack ads, with likely some of the material drawn from copyrighted broadcast content belonging to the CBC or other broadcasters.
The CBC could, of course, appeal, but I doubt that it will do so. First, as I noted in an earlier blog on this topic written right after the 2019 election, there is no love lost between the Conservative Party and the CBC. Many in the Party would like to privatize the CBC, if not do away with it altogether. Thus, it was a bold move for the Corporation to have directly confronted the Conservatives on this issue. Now that they have, and lost, they can maintain that they took all possible steps to protect their reputation for political neutrality. If their content is being used to produce political attack ads, there is nothing further that they can do to stop the practice.
The ruling also shows how legal interpretations can adapt to changing social expectations. Use of copyrighted broadcast material in attack ads has become relatively commonplace. To limit the free-for-all of political debate on the basis of a strict interpretation of copyright law would likely not serve the broader purposes of copyright protection. As the Court concluded;
“There may be situations in the future where the manner of use and distribution of CBC material may adversely affect the CBC – however, that is not the case here. Fear and speculation cannot ground a finding of unfairness in this factor.”
© Hugh Stephens, 2021. All Rights Reserved.