This past week, news broke concerning the Harper Government’s consideration of a new exception to Canada’s Copyright Act. A benefit solely for those involved in the creation and distribution of political advertisements, the proposal can only undermine three hundred years of statutory design on copyright law, which has progressively ensured broad language with flexibility to anonymous creators and users alike.
Reports began on October 8 from CTV and the Globe & Mail, with the CBC providing further details on October 9 (including posting the undated Cabinet presentation document). Michael Geist posted commentary on both the 8th and 9th, and copyright enthusiasts around the country are shaking their heads in disbelief and dismay.
Briefly, Prime Minister Harper and his cabinet are entertaining the thought of an exception to copyright that is only applicable to the political establishment. From the Cabinet document came this:
The exception means greater certainty for the political actors who want to use copyright content in their advertisements:
– E.g. clips from radio and television broadcast news, footage capturing a political debate or events, a newspaper or magazine article, etc.
– Could be used by all politicians and registered political parties at any level of government.
The rationale offered by the government is that politicians should be held accountable for their statements and actions, and this exception would ensure that the public is kept informed. The opposition parties see it as a thinly veiled attempt to facilitate the use of attack ads. While our Government is content to claim method, their behaviour is madness of Shakespearean proportions.
First, we already have an exception to address the use of copyrighted material; fair dealing protects unauthorized use for the purposes of research, private study, criticism, review, news reporting, parody, satire and education, provided the use is fair. Political parties should apply the law under the same constraints as all Canadians (if anything, in a more edifying manner).
Second, using published material to report or contradict political opinion is part and parcel of civil society as it exists. If a member of the political realm gives a speech, a reporter may quote from the speech. An opponent may choose to quote out of context. The audience may find such a tactic repugnant, but it is hardly new.
Third, in the copyright amendments of 2012, this same Government introduced a new exception, unofficially titled the YouTube exception which supports the creation of user-generated content. Section 29.21 is suited to the creation of both commentary and fantasy. While I find attack ads loathsome, they are creative expression and may draw upon the exception.
Fourth, the issue of moral rights is given short-shrift by this Government’s proposal. It claims that moral rights of creators would not be affected, via the logic that creators have likely waived those rights. Moral rights protect the integrity and reputation of a work and its creator respectively. Canadian law forbids allying a work to a cause if the creator objects. To blithely indicate that the Government will not suffer for misusing a work is further evidence that this government only cares about legal liability, not ethical conduct.
Fifth, this desire to embed a copyright change in an omnibus budget bill flies in the face of this Government’s own stipulation of a five year, comprehensive review cycle of the Copyright Act. If musicians and students, librarians and broadcasters must wait to plead their case until 2017, this Government must abide by the same rule.
Finally, the Government’s proposal makes curious distinctions that undermine the universality of the grant of copyright and the use of exceptions. That it is designed for a small segment of Canadians is reprehensible. So too is the manner in which genre and medium are parceled out. For instance, news articles may be used but not photographs or music. Documentaries are not eligible for mining (even though documentarians are among the greatest users of exceptions to copyright, making reciprocation only appropriate). Fictional works are also not eligible, despite fiction being a rich resource for modern commentary. Presumably though, fiction that has passed into the public domain may be drawn upon—I await the invocations of Caesar, Macbeth and Hamlet.
Canada has enjoyed ten years of jurisprudence that yielded a fair dealing regime capable of addressing all situations with flexibility, to the benefit of all Canadians. To muddy up the Copyright Act with a narrowly worded, politically-minded exception places future courts in the awkward position of having one approach when adjudicating copyright for Canadians and a separate approach when adjudicating copyright for Canadian politicians. This will not facilitate the understanding or practice of the system of copyright in Canada.