New To Copyright: Canada’s Idea For Political Advertising Exception

The Canadian Conservative government is considering a new copyright exception for political advertising that would be unique in the world and address an issue already covered by Canada’s constitutional rights, copyright experts said.

The government is considering the exception after Canada’s broadcasters said in the spring they would collectively refuse to air political ads that use their news content without their consent.

Michael Geist, a law professor and copyright expert at the University of Ottawa, said in phone interview that the use of news clips in political advertising is covered by fair use and fair dealing laws around the world.

“It may be that it’s already permitted in a lot of places, so no one’s thought to create a specific exception, because it’s a bit of a non-issue,” Geist said. “I think any court is going to be very reluctant to use copyright to stop legitimate, political speech. Full stop. That’s true of most courts anywhere.”

Canadian broadcaster CTV reported on a leaked cabinet memo this month that showed the Canadian government is considering a political advertising exception to clear up any ambiguity in the law surrounding political parties’ use of news material for political ads.

The proposed copyright exception, according to the document, “would allow free use of ‘news’ content in political advertisements intended to promote or oppose a politician or political party, or a position on a related issue.”

The news content could be used by “political actors,” such as “publicly elected officials, party leaders and those who intend to seek such positions,” as well as federally registered political parties and agents who air the content on behalf of political actors, the document said.

The source material would have to “feature the political actor in their capacity as a politician or relate to a political issue,” the proposal said, and have to be obtained from a news source and be previously made available in a broadcast or a public platform like YouTube.

The leaked document proposed the amendments to the Canadian cabinet for approval.

Canada has a fixed election date on 19 October 2015, and political parties are expected to increase the airing of political advertising, especially attack ads, outside of the official campaign writ period, when political ad spending rules do not apply.

Ariel Katz, an associate professor at the University of Toronto’s Faculty of Law, said in an interview that the “criticism” exception under Canada’s “fair dealing” provisions already covers the use of news content for political advertising.

Canada’s Copyright Act has a fair dealing exception that lists specific uses of works exempted from copyright, which are identified as private study, research, criticism, review, news reporting, parody, satire and education.

The law specifies that, for criticism or reviews, the user must mention the work’s source, name of the author, performer, and broadcaster, where appropriate.

Katz said Canada’s Supreme Court decision in 2012, in SOCAN v. Bell Canada, reaffirmed the extent of fair dealing under the Copyright Act, with the court noting that fair dealing research “must be given a large and liberal interpretation.”

United States’ copyright law has a broader “fair use” system in which copyright is exempted for uses under a balance of test factors, including the use’s impact on the work’s value and the amount of the work used.

Katz said he is not aware of any jurisdiction in the world that has an exception for political advertising. In Canada, if political ads could be stopped using copyright protections, the country could be faced with a freedom of expression problem, he said.

“If the answer is that, if it’s not fair dealing or not fair use, then we may have a serious Charter issue,” Katz said, referring to the Canadian Charter of Rights and Freedoms, a bill of rights in the Constitution. “If the copyright answer is that it’s illegal, then this limitation on freedom of expression, and the constitutionality of such a limitation, has to be raised.”

Katz said if the government is going to introduce an exception, it could do so more broadly for uses beyond just those of political parties. The leak could have been a “trial balloon,” he said, and for now, he hopes the government drops the proposal because he thinks it’s redundant.

The government may have already dropped it. The leaked cabinet document said that if the proposal was approved, it would “be incorporated into the budget implementation act.” That bill was tabled in the House of Commons on Thursday, with no references to any Copyright Act amendments.

A bigger issue than an exception for political advertising, said Katz and Geist, is the Canadian broadcasters’ willingness to collectively agree to refuse to air political attack ads, which could be a violation of Canadian competition law and which copyright amendments would not fix.

In May, senior news managers from five of Canada’s largest broadcasters, including CBC/Radio-Canada, Shaw Media, Bell Media, and Rogers Media, issued a signed letter to Canada’s political parties, saying the outlets would refuse political ads that use any of their news content without permission.

“As news organizations, the use of our content in political advertisements without our express consent may compromise our journalistic independence and call into question our journalistic ethics, standards and objectivity,” the letter from the broadcasters said. “Accordingly, in anticipation of the upcoming elections, we wish to advise that effective immediately our organizations will not accept any political advertisement which uses our content without our express authorization.”

Canadian Heritage Minister Shelly Glover said in the House of Commons on 9 October that the law could use greater clarity.

“There is a public interest in ensuring that politicians are accountable for their actions and accountable for what they say in public settings,” Glover said. “Major television networks should not have the ability to censor what can and cannot be broadcast to Canadians. We believe that this has always been protected under the fair dealing provisions of the law, and if greater certainty is necessary, we will provide it.”

CBC/Radio-Canada and the government did not respond to requests for comment for this story.

Image Credits: Canada Heritage Minister Shelly Glover, Office of PM Stephen Harper