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Federal Court declares Political Attack Ads Fair Dealing

May 14, 2021 - James Plotkin

The Federal Court (Phelan J.) dismissed an application by the Canadian Broadcast Corporation (CBC) against the Conservative Party of Canada and its chief agent, Conservative Fund Canada (the Respondents), alleging copyright infringement. The alleged infringement related to the Respondents’ use of brief excerpts from CBC news reports and Tweets in political advertisements commonly known as “attack ads”.

Since the allegedly infringing content was taken down following several cease-and-desist letters from the CBC, and given the CBC limited its request to declaratory relief, the Court first considered whether the matter was moot. Applying the Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342, framework, the Court exercised its discretion to hear and decide the matter.

Substantial Copying

After summarily concluding copyright subsisted in the subject works and that the CBC had standing, Phelan J. went on to consider whether the Respondents copied a “substantial part” of the works (the Copyright Act protects copyright owners’ right to, among other things, produce or reproduce all “or any substantial part” of a work). He rejected the Respondents’ argument that the segments of the works they used were not substantial from both a quantitative and qualitative perspective. In so doing, he set out five criteria for assessing whether a substantial part of a work has been copied (N.B. Justice Phelan indicated these criteria came from the Supreme Court of Canada’s decision in Cinar Corporation v. Robinson, 2013 SCC 73. In fact, these factors are drawn from U & R Tax Services Ltd.  v. H&R Block Canada Inc. (1995), 62 C.P. R. (3d) 257 (Fed. T.D) at para 35, a decision of the Federal Court):

a) the quality and quantity of the material taken, including the importance of the parts taken to the plaintiff’s work and the extent of originality of the parts taken.

b) the extent to which the impugned use adversely affects the plaintiff’s activities and diminishes the value of the plaintiff’s copyright.

c) whether the material taken is the proper subject-matter of copyright.

d) the purpose for which the material is taken, including whether the defendant intentionally appropriated the plaintiff’s work to save time and effort.

e) whether the material is used in the same or similar fashion as the plaintiff’s.

Although the clips taken were quantitatively small, Phalen J. found 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)” represented a significant exercise of skill and judgment on the CBC’s part. Specifically, he found that the clips the Respondents took were “qualitatively significant in delivering the Respondents’ ‘message’ to voters”. This appears to be a mistake given that the question is not how important the copied content is to the alleged infringer’s work; the question is whether it constitutes a substantial portion of the source work in respect of which copyright infringement is claimed.

As for the purpose for which the material was taken, the Respondents argued they did not create the content to earn money or solicit donations. Phelan J. was not persuaded, stating that the Respondents’ purpose was to achieve political impact while saving time and money they would have had to expend were they to create their own works from scratch. He also noted that, in the political context, the aim is to secure votes. He found these facts supported a finding that the parts taken were qualitatively substantial.

Finally, Phelan J. agreed with the Respondents that they did not use the material for the same or a similar purpose (i.e. news reporting), and that this militated against a finding of substantial copying. However, he considered this to be of “minor importance” in weighing the substantiality factors.

In light of these findings, Phelan J. concluded the Respondents copied a substantial part of the CBC’s works. He went on to consider whether these activities constituted fair dealing.

Fair Dealing

The fair dealing analysis entails in two limbs. First, the Court must determine whether the activity falls within one of the enumerated fair dealing categories: research, private study, education, satire, parody, criticism, review or news reporting. The Court rightly recognized, following the Supreme Court’s comments in CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 (CCH), that the fair dealing categories are to be given a large and liberal construction, not a narrow one.

Although the Respondents relied on the categories of criticism and review, satire and education, Phelan J. held that only the criticism category was “seriously at issue”. He rejected the notion that criticism is limited to critiques aimed at the works themselves (the tweets and news clips), and agreed it was broad enough to cover the subject of the works, in this case Prime Minister Justin Trudeau.

Phelan J. went on to consider the six fair dealing factors recognized in CCH. He ultimately concluded the dealing was fair:

1. The purpose of the dealing – The Respondents’ critical purpose was to achieve a political result in the context of a democratic process. Phelan J. found this was a legitimate political purpose and not illusory, landing it firmly within the criticism fair dealing category.
2. The character of the dealing – Noting that fewer reproductions are more likely to be fair, Phelan J. heeded comments from the Supreme Court that one must take care in weighing this factor in the digital context given the importance of “technical neutrality” as a principle underlying the Copyright Act. That said, he found this factor militated against the Respondents given the impugned advertisements and Tweets were viewed over two million times.
3. The amount of the dealing – Here the Court assesses the proportion of the excerpt taken in relation to the whole of the work. Phelan J. observed that “[w]hile the use of CBC material was neither excessive nor trivial, and the Clips were important footage, the Advertisement was not solely CBC Clips or CBC materials but contained elements of news broadcasts from other media sources”. He found this factor militated in favour or a fairness finding. Again, it appears the analysis erroneously focused how much of the proposition of the CBC’s works represented in the Respondents’ work rather than the proportion of the source work (the Tweets and clips) that the Respondents used.
4. The existence of any alternatives – Phelan J. found this factor was neutral. He acknowledged there might have been alternatives to the dealing, but that it was unclear whether those alternatives would have been as effective as displaying “Mr. Trudeau’s India dance scene or his handling of awkward questions about veterans’ compensation”.
5. The nature of the work – Here the court must look to whether the work was confidential or unpublished, militating against fair dealing, or whether it was publicly available, militating toward fair dealing. This factor clearly favoured the Respondents.
6. The effect of the dealing on the work – On this prong, the CBC argued the impugned material was used in a way that negatively affected its journalistic integrity and damaged its reputation for neutrality. Phelan J. noted there was no objective evidence of reputational damage. He also found the advertisements and Tweets were not substitutes for the works themselves such that they were not competing with the CBC’s works. This factor also favoured the Respondents.

Based on this analysis, the Court dismissed the CBC’s application, with costs. It will be interesting to see whether the CBC appeals to the Federal Court of Appeal. Given the fair dealing analysis is heavily fact-laden, the CBC would likely face a steep challenge on appeals.