Teresa Scassa - Blog

Do you have a reasonable expectation of privacy in the data recorded by your car’s airbag sensing diagnostic module (SDM)? Did you even know your car has an SDM? Two recent court cases highlight important privacy issues related to this technology – and by extension to technology embedded into other consumer products that is capable of recording user information. Both R. v. Hamilton from the Ontario Supreme Court and R. v. Fedan from the BC…

CTV News has reported on a leaked document that suggests that the federal government will be proposing a very specific amendment to the Copyright Act as part of a future budget implementation bill. Specifically, the government will seek to create an exception to copyright infringement that will allow politicians and political parties to make use of media content in political advertisements without the need to seek permission or to pay licensing fees. Normally, the right to authorize the use of copyright protected content is one of the exclusive rights of copyright holders.

The move by the government is sandwiched between two particular events. The first is an announcement in May of this year by major media outlets that they would resist the use of their content in political advertisements. The second, of course, is the looming federal election expected to take place in the fall of 2015 (and for which the campaign already seems to be well under way).

The proposed amendment raises two broad sets of issues. The first relates to process and the second to the substance of the amendment. On the process side of things, the use of budget implementation legislation as a vehicle for ramming through legislative amendments (sometimes of enormous significance) without the normal opportunity for debate, study, and even revision is part of an ongoing degradation of the democratic process in Canada. Copyright reform has always been a lengthy and hotly contested exercise largely because copyright legislation reflects a complex balancing of interests. These interests are diverse, and they include the interests of authors/creators, owners of copyright, industry actors, disseminators of copyright materials, and the broad range of users of copyright protected works. Exceptions to the rights of owners of copyright are generally a key focus of these balancing exercises. The Copyright Act was the subject of substantial reform in 2012 (including the addition of a number of new exceptions), and is slated for another review in 2017. The addition of a new exception at this point in time smacks of self-interested expediency on the part of politicians.

As a matter of substance, it is difficult to comment directly without the actual text of the amendment. However, I offer up some general observations to highlight the complexity of the issues raised, the potential problems, and the ways in which any such amendment might benefit from greater consideration than a budget implementation bill might warrant.

It should be noted that the use of content without need for a licence is already provided for in a variety of contexts under the fair dealing exceptions in the Copyright Act. Under these exceptions, the use of a work must be for a permitted purpose (which can include news reporting, criticism or comment, parody or satire). Such use must also be considered ‘fair’ – in other words, it is not enough to simply allege a specific purpose, one must also use the work or the extract fairly. It is worth noting that the issue of the use of media content in political advertisements in Canada has never been litigated – thus we do not know whether such use might qualify, in appropriate circumstances, for one of the already existing fair dealing exceptions. A first question, therefore, is whether a new exception is needed.

Any specific exception to allow the use of media content in political advertisements would have to consider and define who would be entitled to make such use (Politicians? Candidates? Potential candidates? Political parties? Interest groups?) and what content is up for grabs (Content from mainstream media outlets? From bloggers? Twitter or other social media?). Certain existing fair dealing exceptions require that the source and author be identified when material is used, and presumably something similar should be required here. Further, one would hope that, as with the other fair dealing exceptions, there would also be the additional requirement that any use made of the content must be ‘fair’. It will be very interesting to see whether this is part of any amendment. The ‘fairness’ of any use of content in political advertisements will be a big issue: a use that misrepresents or takes content out of context would be difficult to justify as fair. But if taking things out of context is the name of the game in political ads, will we see an exception that does not impose a fairness limitation on the use of copyright owners’ content?

Any such exception would also fit within the context of the legislation, which provides for certain moral rights. These are available to human authors (and not to corporate owners) of copyright protected works. They can be asserted to protect the honour and reputation of the author, both in terms of the integrity of their work and the causes or institutions in association with which the work is used. While author-employees may waive their moral rights with respect to their employers, they do not, in so doing, necessarily waive them against the rest of the world. Thus, even with a new exception, it might be possible for journalists whose work is used in ways that affect the integrity of their work or that link them, through their work, to a cause or institution they do not support, might still have a moral rights claim. While it is reassuring to think that the exception is not a blank cheque, moral rights case law in Canada is skimpy, and it is difficult to predict what the role will be of moral rights in this context.

Of course, there is a strong public interest in the free and open exchange of ideas. It can certainly be argued that this amendment will enhance the ability to engage with media stories without the need to seek permission to do so, and that this is a good thing – even if many political advertisements are hardly a shining example of engaged political discourse. Nevertheless, to ram through such an exception to the Copyright Act in a budget implementation bill, without due democratic consideration, and in the face of some fairly serious public policy questions on both sides of the issue, makes a mockery of copyright reform. Canadians may remember that it was only in the 2012 amendments to the Copyright Act that an exception was finally included to make the home recording of televised content legal (!) and then only under a tedious list of conditions and limitations. The wheels of copyright reform move slowly and carefully indeed for ordinary Canadians; they clearly move much faster when political self-interest is engaged.