CBC vs Conservative Party: Fair dealing contested

CBC vs Conservative Party: Fair dealing contested

Political parties are often accused of infringing copyright but an unprecedented situation occurred on February 12 in the world of Canadian media and politics. The Canadian Broadcasting Corporation (CBC) sued the Conservative Party of Canada for “unauthorized use of copyright-protected material.”

The lawsuit centres on the Conservative Party’s unauthorized use of excerpts from CBC programs for partisan political purposes. According to the CBC, such use by the party negatively impacts perceptions of the broadcaster’s impartiality and journalistic integrity.

The party’s lawyers replied that using short excerpts for criticism, satire and education are considered fair dealing and are allowed under the Copyright Act.

Fair dealing is a risky defence

The fair dealing concept in the Copyright Act allows copyrighted content to be used for the following purposes:

- Research and private study
- Review
- Criticism
- News reporting
- Parody
- Satire
- Education

However, this exception under the Copyright Act doesn’t apply automatically and is a question rooted in facts, degrees and impressions. Every use must be analyzed on a case-by-case basis. Although the criteria set by the Supreme Court can be analyzed from different perspectives, only the courts can decide how they apply.

It can be risky for any organization to rely on fair dealing as its defence. In doing so, they’re betting that the copyright owner and a judge will arrive at the same conclusion from a legal standpoint. For that reason, obtaining a user licence is an effective way to avoid potential lawsuits for copyright infringement.

Unprecedented case

The political analysts among you may have noticed that this is the first time a Canadian media organization has sued a political party for copyright infringement. But the lawsuit is also unprecedented because of its content.

Various political parties have been accused of copyright violations in the past. In the U.S., many artists and music groups have criticized the Republican Party and Donald Trump for using their works without authorization.

Here in Quebec, singer-songwriter Pierre Lapointe slammed the Quebec Liberal Party for unauthorized use of his song Je reviendrai in 2013.

It’s about moral rights

Nevertheless, the political party had a user licence allowing the organizers to play the music. The actual complaint was about moral rights, especially the creator’s right to the integrity of the work.

Moral rights do not exist for music in the U.S. But in Canada, artists can refuse to allow their music to be associated with a political cause, even if the political organization has a user licence.

Although the CBC complaint contains elements relating to moral rights, such as negative impacts on the appearance of impartiality, this case also involves a different element: fair dealing.

Does fair dealing allow a political organization to take advantage of media content for partisan purposes?

This will be an interesting case and Copibec will be monitoring developments: subscribe to our newsletter to find out what happens next.