{"id":1283,"date":"2021-05-14T11:42:53","date_gmt":"2021-05-14T15:42:53","guid":{"rendered":"https:\/\/cazasaikaley.com\/?post_type=news&p=1283"},"modified":"2021-06-01T13:47:10","modified_gmt":"2021-06-01T17:47:10","slug":"federal-court-declares-political-attack-ads-fair-dealing","status":"publish","type":"news","link":"https:\/\/cazasaikaley.com\/en\/news-and-blog\/federal-court-declares-political-attack-ads-fair-dealing\/","title":{"rendered":"Federal Court declares Political Attack Ads Fair Dealing"},"content":{"rendered":"\n

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\u2019 use of brief excerpts from CBC news reports and Tweets in political advertisements commonly known as \u201cattack ads\u201d.<\/p>\n\n\n\n

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)<\/em>, [1989] 1 S.C.R. 342<\/a>, framework, the Court exercised its discretion to hear and decide the matter.<\/p>\n\n\n\n

Substantial Copying<\/em><\/strong><\/p>\n\n\n\n

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 \u201csubstantial part\u201d of the works (the Copyright Act<\/em> protects copyright owners\u2019 right to, among other things, produce or reproduce all \u201cor any substantial part\u201d of a work). He rejected the Respondents\u2019 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\u2019s decision in Cinar Corporation v. Robinson<\/em>, 2013 SCC 73<\/a>. In fact, these factors are drawn from U & R Tax Services Ltd.\u00a0 v. H&R Block Canada Inc<\/em>. (1995), 62 C.P. R. (3d) 257 (Fed. T.D) at para 35, a decision of the Federal Court):<\/p>\n\n\n\n

a) the quality and quantity of the material taken, including the importance of the parts taken to the plaintiff\u2019s work and the extent of originality of the parts taken.<\/p>\n\n\n\n

b) the extent to which the impugned use adversely affects the plaintiff\u2019s activities and diminishes the value of the plaintiff\u2019s copyright.<\/p>\n\n\n\n

c) whether the material taken is the proper subject-matter of copyright.<\/p>\n\n\n\n

d) the purpose for which the material is taken, including whether the defendant intentionally appropriated the plaintiff\u2019s work to save time and effort.<\/p>\n\n\n\n

e) whether the material is used in the same or similar fashion as the plaintiff\u2019s.<\/p>\n\n\n\n

Although the clips taken were quantitatively small, Phalen J. found the \u201cartistic design, production services (lighting, camera work, audio, etc.) and journalistic decisions (i.e. the flow of discussions and the election and posing of questions)\u201d represented a significant exercise of skill and judgment on the CBC\u2019s part. Specifically, he found that the clips the Respondents took were \u201cqualitatively significant in delivering the Respondents\u2019 \u2018message\u2019 to voters\u201d. This appears to be a mistake given that the question is not how important the copied content is to the alleged infringer\u2019s work; the question is whether it constitutes a substantial portion of the source work<\/em> in respect of which copyright infringement is claimed.<\/p>\n\n\n\n

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\u2019 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.<\/p>\n\n\n\n

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 \u201cminor importance\u201d in weighing the substantiality factors.<\/p>\n\n\n\n

In light of these findings, Phelan J. concluded the Respondents copied a substantial part of the CBC\u2019s works. He went on to consider whether these activities constituted fair dealing.<\/p>\n\n\n\n

Fair Dealing<\/em><\/strong><\/p>\n\n\n\n

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\u2019s comments in CCH Canadian Ltd v Law Society of Upper Canada<\/em>, 2004 SCC 13<\/a> (CCH<\/em>), that the fair dealing categories are to be given a large and liberal construction, not a narrow one.<\/p>\n\n\n\n

Although the Respondents relied on the categories of criticism and review, satire and education, Phelan J. held that only the criticism category was \u201cseriously at issue\u201d. 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.<\/p>\n\n\n\n

Phelan J. went on to consider the six fair dealing factors recognized in CCH<\/em>. He ultimately concluded the dealing was fair:<\/p>\n\n\n\n

  1. The purpose of the dealing<\/strong> \u2013 The Respondents\u2019 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.<\/li>
  2. The character of the dealing<\/strong> \u2013 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 \u201ctechnical neutrality\u201d as a principle underlying the Copyright Act<\/em>. That said, he found this factor militated against the Respondents given the impugned advertisements and Tweets were viewed over two million times.<\/li>
  3. The amount of the dealing<\/strong> \u2013 Here the Court assesses the proportion of the excerpt taken in relation to the whole of the work. Phelan J. observed that \u201c[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\u201d. 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\u2019s works represented in the Respondents\u2019 work rather than the proportion of the source work (the Tweets and clips) that the Respondents used.<\/li>
  4. The existence of any alternatives<\/strong> \u2013 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 \u201cMr. Trudeau\u2019s India dance scene or his handling of awkward questions about veterans\u2019 compensation\u201d.<\/li>
  5. The nature of the work<\/strong> \u2013 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.<\/li>
  6. The effect of the dealing on the work<\/strong> \u2013 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\u2019s works. This factor also favoured the Respondents.<\/li><\/ol>\n\n\n\n

    Based on this analysis, the Court dismissed the CBC\u2019s 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

    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\u2019 use of brief excerpts from CBC news reports and Tweets in political advertisements commonly known as […]<\/p>\n","protected":false},"featured_media":0,"parent":0,"menu_order":0,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"topic-category":[23],"class_list":["post-1283","news","type-news","status-publish","format-standard","hentry","topic-category-blog"],"acf":[],"yoast_head":"\nFederal Court declares Political Attack Ads Fair Dealing - Caza Saikaley<\/title>\n<meta name=\"description\" content=\"Federal Court declares Political Attack Ads Fair Dealing Caza Saikaley\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/cazasaikaley.com\/en\/news-and-blog\/federal-court-declares-political-attack-ads-fair-dealing\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Federal Court declares Political Attack Ads Fair Dealing - 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