Court's Liberal Approach To "Criticism" Fair Dealing In Favour Of Use Of Copyrighted News Material In Political Ads

• Published date: 31 May 2021
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Advertising, Marketing & Branding, Broadcasting: Film, TV & Radio
• Law Firm: Bereskin & Parr LLP
• Author: Ms Naomi Zener, Tamara Céline Winegust and William Audet

It is not often that we are lucky enough in Canada to get judicial pronouncements on the law of Fair Dealing for the purposes of "criticism" or "review" (Copyright Act, 1985 RCS c C-42, section 29.1 (the "Act")). When we do, copyright and TV/film errors and omissions ("E&O") lawyers become giddy because these don't come around very often. The recent decision of the Federal Court of Canada (per Justice Phelan) in Canadian Broadcasting Corporation v. Conservative Party of Canada, 2021 FC 425 (CBC v CPC) provided an interpretation of "fair dealing" for the purpose of criticism that is certain to have a wide ranging impact on how users (including political parties) engage with others' copyrighted works. The decision found that incorporating seconds-long clips from others' work into political attack ads, while amounting to the taking of a "substantial part" of that work, can nevertheless qualify as a "fair dealing" with respect to that work for the purpose of criticism.

Of importance, in CBC v CPC, the Court held that to avail oneself of fair dealing for the purpose of criticism, the "criticism" need not be restricted to criticism of the copied work itself. Instead, the "idea set out in the work and the social or moral implications of those ideas" are also fair game. Such broad interpretation may well invigorate this fair dealing category, and embolden users to test the limits of how "critical" a criticism could be to be "fair". It is interesting to contrast this decision with Justice Phelan's prior ruling in United Airlines, Inc. v. Cooperstock, 2017 FC 616 ("Cooperstock"). In that case, the defendant operated a website that permitted users to submit complains about an airline provider. The defendant claimed the website was fair dealing for the purpose of "parody". In that context, the Court found no fair dealing. Justice Phelan noted that "parody" required an "intent for humour" rather than an "intent to embarrass and punish ... if extended too far, what may be designed in jest for parody may simply become defamatory". By contrast, the outcome in CBC v CPC expands the "criticism" category to encompass use of works in attack ads. Such ads, by their nature, are designed to "embarrass and punish" the subject. It suggests that where a user's dealing may not comfortably sit within the meaning of "parody" or "satire", the user may be better off arguing the dealing is for the purpose of "criticism".

Such expanded interpretation of "criticism" may also be of particular importance to documentary filmmakers. In combination with the Ontario Court's 2020 decision in Wiseau Studio, LLC v Harper, 2020 ONSC 2504'which suggested an expanded approach to the "news reporting" fair dealing category in the context of documentary filmmaking'these two decisions indicate that documentary filmmakers may now have more confidence when incorporating excerpts of third party copyrighted works into their films without permission from the copyright holder.

Background

The case centred on federal election campaign attack ads and tweets produced by the Conservative Party of Canada ("CPC") that incorporated copyrighted works owned by the Canadian Broadcasting Corporation ("CBC"), Canada's national broadcaster, without CBC's express consent.

The CPC ad, entitled "Look at what we've done", sought to criticize Prime Minister Justin Trudeau and the Liberal Party of Canada. It included short excerpts from CBC's news reports "At Issue", "Point of View", "The National" (CBC's leading national English evening television program), and from the "Power Panel" segment of "Power and Politics", as well as from an hour-long Town Hall with the Prime Minister produced and broadcast by CBC (the "Ad"). Most segments were 10 minutes or...