Broadcaster alleges copyright infringement in final stretch of federal election campaign
OTTAWA – As it fights to form the next federal government, the Conservative Party of Canada has found itself in a bitter battle with the country’s public broadcaster during the final stretch of the federal election campaign.
On Thursday, CBC/Radio-Canada filed a copyright-infringement lawsuit in Federal Court against the party and its executive director, Dustin Van Vugt, alleging that the Conservatives produced a 1 minute, 46-second social-media video, titled “Look at What We’ve Done,” which contains footage from The National (featuring host Rosemary Barton), Power & Politics (with CBC journalist John Paul Tasker) and a CBC Politics broadcast of a town hall attended by Prime Minister and Liberal leader Justin Trudeau. The video was posted on the Tories’ anti-Trudeau website, as well as on their Facebook page and YouTube site.
The CBC action also alleges the Conservatives posted video excerpts from the English-language leaders’ debate on its English and French Twitter feed without permission.
Despite sending several demand letters to the Conservative Party about the “unauthorized use of copyright-protected material,” it was only taken offline on Thursday morning, according to the 19-page CBC/Radio-Canada notice of application filed with the Court.
“The respondents have intentionally and knowingly sought to maximize their improper use of the infringing material,” argues the CBC. “Their conduct demonstrates their intentional disregard of their statutory obligations under the Copyright Act.”
CBC wants the court to declare that the Conservatives have violated the moral rights of Barton and Tasker, “who are the authors and performers of the copyright-protected material,” by taking excerpts of their work “out of context, selectively editing them and inserting them into the respondents’ highly partisan messages.”
Barton and Tasker were named as co-applicants in the action but on Saturday, Jennifer McGuire, CBC News general manager and editor-in-chief, and Luce Julien, general director of information programming for Radio-Canada, issued a statement indicating the journalists’ names would be removed from the court filing when the court opens on Tuesday.
“CBC/Radio Canada was the driver of this process, not the journalists…who were only included because their images and content were used inappropriately,” said the statement.
The CBC/Radio-Canada action seeks an injunction against the Tories from further publishing the “infringing” material.
Improper use of the material “takes advantage of the skill and judgment” of CBC/Radio-Canada, its journalists and producers, and which they “created and made so attractive for the respondents to use for their own purposes,” CBC argues.
It also “diminishes the reputation” of the applicants, “and takes advantage of their respected integrity and independence in a way that undermines public confidence in Canada’s national broadcaster at a critical time: during a national election campaign in which their coverage must be seen, more than ever, as trustworthy, independent and non-partisan.”
In a news release issued on Friday, the Conservative Party said it has “grave concern” that it received notice of the action “on the eve of an election that CBC is to be covering fairly and objectively,” and “considers this a complete distraction in the final days of [a] tightly contested election.”
“When you are funded entirely by taxpayer dollars, taxpayers should be able to use the footage.” – Conservative Party of Canada
The party said it would “dispute this lawsuit fully.”
“CBC is a taxpayer-funded entity,” the Conservatives said. “When you are funded entirely by taxpayer dollars, taxpayers should be able to use the footage.”
Furthermore, “the Copyright Act provides for fair dealing,” the release added.
In its notice of application, however, CBC contends the Conservatives used the material “for partisan and promotional ends,” which “does not constitute fair dealing.” Nor does it meet the requirement of fairness under the legislation, since the copyrighted material was widely distributed through the internet, the public network argues.
On his blog, University of Ottawa law professor Michael Geist, who holds the Canada Research Chair in Internet and E-Commerce Law, wrote he thinks “CBC’s legal arguments are very weak,” and the clips used by the Tories “all certainly qualify for fair dealing.”
“The larger question is why the CBC thought it necessary to issue takedown demands followed by a full lawsuit seeking a court-ordered injunction. That decision not only demonstrates a fundamental misunderstanding of the law of copyright, but also presents a troubling view of a public broadcaster determined to police all uses of its work,” said Geist, who two years ago encouraged the broadcaster to use “open licensing to encourage uses of materials for which the public has ultimately paid.”
He also referred to the Liberals’ campaign platform, which would “require CBC/Radio-Canada to open up its digital platform, so that journalism start-ups and community newspapers can access affordable technology to develop and distribute local content.”
“If this ill-advised lawsuit is any indication, CBC executives have something far different in mind,” Geist wrote.
Friends of Canadian Broadcasting worries that the CBC lawsuit could result in reprisals from the Conservatives, should they win the election.
“Will Andrew Scheer retaliate against the CBC if he becomes prime minister?” wondered Friends’ executive director Daniel Bernhard in a news release. “Under the Broadcasting Act, Scheer could soon have the power to cut funding, replace the board with yes-men, and even fire CBC president Catherine Tait on trumped up charges.”
In an email to Cartt.ca, Canadian Debate Production Partnership spokesperson Leon Mar said the CDPP “was clear with all the political parties, during meetings and with our documentation, that [it] — via CBC/Radio-Canada as owners of the copyright on behalf of the partnership — would not allow the content to be manipulated, or used in political advertising or partisan activities.”
“It is important for the protection of journalistic content, both during the election period and in the future, that we get clarity from the court on these rights now being challenged.” – Leon Mar, CDPP
“The CDPP committed to the [Leaders’ Debate Commission] and to the parties that we would make the debate content widely available through free live distribution and distribution of clips that could be linked to online,” wrote Mar, who also serves as director of media relations and issues management at CBC/Radio-Canada.
“It is important for the protection of journalistic content, both during the election period and in the future, that we get clarity from the court on these rights now being challenged.”
McGuire and Luce said in their statement that “CBC/Radio-Canada was given no assurance that such misuse [by the Conservatives] would not be repeated, even within this election campaign.”
CBC/Radio-Canada’s notice of application also alleges the Tories used CBC footage on their website, Facebook page and YouTube channel in the lead-up to the 2015 election – and only pulled the material before being served with a notice for injunctive relief.
“The respondents’ repeated improper conduct, coupled with the fact that federal elections occur at least every four years, militate in favour of a permanent injunction and determination of CBC/Radio-Canada’s rights,” says the current court filing.
According to Chuck Thompson, head of public affairs at CBC English Services, CBC/Radio-Canada took the same legal action against the left-of-centre, Ottawa-based Broadbent Institute for allegedly using footage during the 2015 campaign.
