A provocative and irreverent video brings back to Vancouver, the intersection of parody and copyright.
The creation by editorial cartoonist Dan Murphy took aim at Enbridge Inc. and the proposed development of its Northern Gateway Pipeline. As reported by the CBC, Murphy indicated that Enbridge pressured Postmedia (publisher of The Province) to remove the video by threatening to withdraw advertising support. Enbridge denied exerting such pressure. The newspaper’s official response was that their concern lay with the use of copyrighted material – Murphy had used Enbridge’s own promotional video in the making of his parody.
The copyright concern is not trivial.
Parody has not been well served in Canadian courts. Within the canon of Canadian copyright law is Michelin v. CAW (1997). In that dispute, parody had no recourse to fair dealing and copyright’s persona as private property superseded the right of freedom of expression.
In 1994, the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW) attempted to unionize Michelin Canada’s three plants in Nova Scotia. The campaign materials included a reproduction of Bibendum (the Michelin Man) with the character portrayed as figure of oppression. Michelin argued that its intellectual property rights had been violated; the CAW had not asked for nor received permission to use the character. The CAW defended their action upon the rights of fair dealing and freedom of expression.
The argument of fair dealing required that the Canadian court recognize parody as a form of criticism. Such was not to be; “[the court] is not prepared to read in parody as a form of criticism and thus create a new exception.” Moreover, the court agreed with:
… the Plaintiff’s submission that the overall use of the copyright must be “fair” or treat the copyright in a good faith manner. The Collins Dictionary defines “fair” as “free from discrimination, dishonesty, etc. just; impartial”. … even if parody were to be read in as criticism, the Defendants would have to adhere to the bundle of limitations that go with criticism, including the need to treat the copyright in a fair manner. The Defendants held the Bibendum up to ridicule.
With such reasoning parody could never achieve sanction under fair dealing. As Emir Aly Crowne-Mohammed writes, “The central feature of any parody is to use humour or ridicule to point out some particular feature of peculiarity of the original work.”
The claim of freedom of expression did not fare well either. The property rights of Michelin were read in disproportion to CAW’s right of freedom of expression; a weighting that continues to be questioned. Jane Bailey writes:
… the Charter prohibits Parliament from creating a property right so broad as to unjustifiably inhibit infringe freedom of expression. Thus the Michelin conclusion that users must justify their expression vis-à-vis the copyright owner’s intended use of the ‘property’ mistakenly places the property cart before the constitutional horse.
Following CCH Canadian, with its edict that user rights were an integral part of the system of copyright and that fair dealing should be given a large and liberal interpretation, there was hope that parody would enjoy greater protection. Yet in November 2008 Michelin was invoked to deny the defense of fair dealing to a parodied version of the Vancouver Sun.
Bill C-11 formally recognizes parody and satire as legitimate purposes of fair dealing. As I noted in my last blog post, Canadian courts continue to show an understanding of the nuance of the intersection of copyright, communication and creativity in the digital age. Michelin could well be displaced as the precedent in Canadian parody. But this requires someone, or some organization, be willing to bell the cat and go to court on principle. Therein lies the problem.
Jane Bailey, “Deflating the Michelin Man,” in Michael Geist, ed., In the Public Interest: The Future of Canadian Copyright Law (Toronto: Irwin Law, 2005).
Canwest v. Horizon, 2008 BCSC 1609
Compagnie Générale des Établissements Michelin-Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada),  2 F.C.306.
Emir Aly Crowne Mohammed, “Parody as fair dealing: a guide for lawyers and judges in Canada,” (2009) Journal of Intellectual Property Law & Practice 4(7).