Why Canada's Fair Dealing Rules May Impede Free Speech: The Conservative Ads, the CBC, and Copyright

Why Canada's Fair Dealing Rules May Impede Free Speech: The Conservative Ads, the CBC, and Copyright: "This week the Conservative party began airing a series of ads
criticizing the opposition, including three that included short video
clips from a CBC program. The CBC has objected to the use of the
footage, stating that its material should not be used in partisan
advertising and noting that the Conservatives did not ask for
permission to use the clip. The Conservative party has responded
by arguing that the use is covered by fair dealing and that no
permission was needed. According
to the Fred DeLorety, the director of communications for the party,
"It’s free speech. It’s free use." To support its position, the
Conservatives point to the use of a similar clip by C-SPAN in the
United States under its fair use rules. The argument seems to be
that
if it is fair use in the U.S., surely it is fair use (or dealing) in
Canada (Stephen Taylor makes the same
point in criticizing the CBC for not having a better grasp of fair
use).



The problem with this argument is that is mistakenly presumes that the
U.S. fair use provision covers the same ground as Canadian fair
dealing. It doesn't. Indeed, this is precisely why many
have argued
for a flexible fair dealing
provision, which unfortunately is not found in current Copyright
Act or in Bill C-32.



There are three key points here. First, the use of the clip
should be
covered by fair dealing. This is clearly free political speech
which
is deserving of protection. The Conservatives did not ask for
permission to use the clip and they should not have to ask for
permission to do so.



Second, it is far from certain that the current fair dealing provision
covers this particular use. As I have explained many times
in the context of the current reforms to fair dealing, the current
provision includes a limited series of categories - research, private
study, news reporting, criticism, and review. If the use does not
qualify under one of these categories, it can't be fair dealing (even
if the use itself appears fair). The use of these clips might be
squeezed into criticism but it is far from certain that a court would
accept the argument. In the U.S. (and other countries such as
Israel and the Philippines), there is no need make these arguments
since fair use is flexible and can cover any potential use.
Canada should have a flexible fair dealing
provision - one that allows for the inclusion of political speech,
parody, satire, education, and innovation - yet the government rejected
that recommendation with its more narrow approach in C-32. That
choice
has real world consequences such that legitimate speech may require
permission (that can be denied) first.



Third, Bill C-32 actually makes the situation even worse with the
inclusion of the digital lock provisions. While these particular
clips
may not have been protected by a digital lock, similar footage found on
DVDs that do contain a digital lock would face a new legal restriction
if the current bill becomes law. In fact, even if the use of the
clip
can be made to fit within fair dealing, if the clip was protected by a
lock, an attempt to circumvent the lock - even for the
legitimate free speech use - would likely still be an infringement
under Bill C-32.



This is not
the first time the restrictive nature of fair dealing in Canada has
had political speech consequences. I wrote about the issue
in 2007, noting the restrictive rules for remix political videos.
The
obvious, much needed solution is a flexible fair dealing provision that
ensures that the free speech rights of Canadians are not unduly
restricted by copyright law. Sadly, the current Bill C-32 may
actually
make the situation worse with the digital lock rules and does little to recognize the crucial link between fair dealing and free speech."