BY MICHAEL GEIST
Earlier this week, reports surfaced that the federal government plans to introduce a new copyright exception for political advertising within a forthcoming budget bill. The provision would allow politicians and political parties to use news content in their political advertising without prior permission.
While the revelations sparked an angry outcry from media organizations and political opponents, the real problem is the potential for copyright to stifle legitimate speech. Political speech — even noxious attack ads — surely qualifies as important speech that merits protection. Unfortunately, the government’s plans create two classes of rights when it comes to political speech: one for politicians and political parties, the other for everyone else.
Canadian law already features many copyright exceptions, most notably a fair-dealing exception that covers a broad range of purposes including research, private study, education, news reporting, criticism and review. In 2012, the Supreme Court of Canada strongly affirmed the need for a large and liberal interpretation of fair dealing (which it views as “user’s right”) which would allow for a fairly good argument that at least some political uses qualify as fair dealing for the purposes of criticism.
Media organizations regularly rely on fair dealing for news reporting purposes to allow for the use of materials in print and video reports without permission from the copyright holder. For example, in 2013, the CBC ombudsman rejected a complaint over the use of materials in a news report without permission, citing fair dealing.
This particular proposal appears to have been triggered by a warning earlier this year from Canadian broadcasters to the political parties advising that they would not air advertisements (unless required to do so by election law) containing their video footage without authorization.
In light of those warnings, better protection for political speech is a reasonable objective. The proposal would grant new rights to political parties for the use of news reports, subject to several limitations. The rules would not apply to documentaries, fictional works or most music and photographs. Moreover, it could not be used for fundraising purposes. Ironically, the government acknowledges that news reports under a digital lock could not be circumvented, demonstrating how the overbroad digital lock rules contained in the last copyright bill negatively affect speech rights.
Despite those limitations, the government’s proposal falls flat on several fronts.
First, the process of incorporating copyright reforms in an omnibus budget bill raises serious concerns about the prospect for expert study and debate. Moreover, it vaults the political parties’ copyright concerns to the very front of the line, leaving issues such as new international protections for the blind and visually impaired on the back burner.
Second, the government could simply rely on existing law. With a robust fair-dealing provision and a cap on liability for non-commercial infringement, the risk of an infringement claim is low. This proposal may be a solution in search of a problem and the government would do better to test the boundaries of the current law rather than bury an exception in a budget bill.
Third, if the government is convinced that fair dealing does not fully cover political speech, the far better approach would be to establish a full fair-use provision in Canada. Fair use offers the benefits of applying in all circumstances (not just political advertising) and would be available to all users (not just political parties and candidates). Moreover, it would ensure that usage would be subject to a fairness analysis, which this exception does not appear to do.
Fourth, if the government sticks with its current proposal it should be expanded to safeguard the political speech rights of all Canadians. As currently crafted, it would only apply to political parties, politicians, candidates and their agents. The creation of an exception that only allows a select few to benefit is not a provision that can be defended on freedom of political speech grounds.