Copyright exception for political ads mulled by Conservatives

Is the Conservative government angling to add an exemption to allow political parties to dodge copyright claims when compiling news clippings and TV footage to launch attack ads against their rivals?

• Political parties blocked from using broadcasters' content in ads

Heritage Minister Shelly Glover said during question period Thursday that she wouldn't comment on "rumour or speculation," but hinted that the measure is under consideration. 

"There is a public interest in ensuring that politicians are accountable for their actions and accountable for what they say in public settings," she told the House in response to a question from Liberal MP Ralph Goodale. 

"Major television networks should not be able to censor what can and cannot be broadcast to Canadians. We believe this has always been protected under the fair dealings provisions of the law, and if greater certainty is necessary, we will provide it."

Prime Minister Stephen Harper echoed her comments  during an appearance in Whitby, Ont.  

"As political people who conduct much of our business in public, we fully expect we will be held publicly accountable for the statements we make in public," he said.

"I would be very concerned about any proposal that would attempt to censor or block that information from the public."

Last May, representatives from Canada's major broadcasters, including CBC, Radio-Canada, CTV, Rogers and Shaw, served notice that they would no longer air political advertisements that include material taken from their airwaves without their express authorization.

But a new exception proposed by Canadian Heritage behind the closed doors of the federal cabinet "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." 

A copy of the PowerPoint presentation accompanying the pitch was obtained by CBC News.

The copyright exception would be restricted to "publicly elected officials, party leaders, and those who intended to seek such positions" as well as registered political parties, and would also extend to their agents and distributors, including YouTube.

It would, however, "not affect the moral rights of the content creator."

"A creator could oppose the use of their content if they feel it negatively affects the integrity of their work or reputation," it states, but adds that "corporations — e.g. broadcasters — cannot hold moral rights; however their employees — e.g. news director — may, if they have not waived them."

It also wouldn't circumvent copyright "protected by a digital lock."

Document warns of 'unintended consequences'

Despite asserting that the proposed change "is narrow, and carries a low legal risk," the documents nevertheless warn that the "legal and political complexity, and the speed with which the exception was developed" could result in "unforeseen circumstances that create unintended consequences."

Among the potential stumbling blocks listed: a less-than-positive likely reaction from "creators of news," who will, it predicts, "vehemently claim that their work is being unfairly targeted for the benefit of political parties," as well as possible concern among musicians and photographers.

The presentation is undated, so it's not clear whether the proposal is a new one — or, for that matter, if it found any support around the cabinet table. The next budget implementation bill is, however, expected to be tabled later this fall, which will likely answer that question.

In a blog post written in response to reports of the government's plan, University of Ottawa law professor Michael Geist suggests that the current laws surrounding "fair dealing" — the Canadian term for the more familiar "fair use" — may be sufficient to protect political parties from copyright claims.

'Existing law' may be enough: Geist

 "As a starting point, I think the government should simply rely on existing law," he notes.

• Michael Geist: The fair in fair dealing

"With a robust fair dealing provision and a cap on liability for non-commercial infringement, the risk of an infringement claim is low."

The rumoured proposal "may be a solution in search of a problem," he continues.

"We would do better to test the boundaries of the current law rather than bury an exception in a budget bill."

Meanwhile, back on Parliament Hill, opposition members panned the proposal.

"Maybe I have a little vested interest in it because I’m here, but it doesn’t pass the smell test," NDP MP Megan Leslie told reporters.

"It's stealing," Liberal MP Judy Sgro told CBC News. "Those clips belong to the networks. They don't belong to the government."

She pointed out that the House industry committee had studied copyright for two years. "This never came up."

She also made it clear whom she believes the real target of this initiative is likely to be.

"They've run out of methods to destroy Justin Trudeau," she noted.

'Everyone can use it, right?'

On the other side of the aisle, Conservative MP Tom Lukiwski admitted that he hadn't yet taken a close look at the proposal, but seemed open to the idea, which he described as "a natural extension of what we've already seen."

"I know the arguments against it has been for years that you just can't use news coverage," he told CBC News.

"If it's part of the public domain, I don't know why anybody couldn't use it."

Asked if the change will help his party get out its message that Trudeau is, as they put it, "in over his head," Lukiwksi said it would be "doing that constantly anyway."

"Every Canadian should have the opportunity to take a look and make judgment on their political leaders, and this will just assist them to do that," he said.

"Everybody can use it, right? Everybody can use news clips, so I'm sure they'll be taking advantage, if they see one, themselves."

In a written statement, CBC News spokesman Chuck Thompson said the broadcaster's position is unchanged.

"As is the case with several other Canadian media organizations, we believe using our content in political ads without permission may compromise our journalistic independence and call into question our journalistic ethics, standards and objectivity."