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Push and pull of copyright reform

Legal Report: Intellectual property law
|Written By Glenn Kauth

By definition, parody involves the imitation of someone else’s work. So how do you square that notion with copyright laws that by their nature restrict such mimicking?

That’s a key question in a case likely to make its way to trial in the Supreme Court of British Columbia between CanWest MediaWorks Publications Inc. and two Vancouver residents, Gordon Murray and Carel Moiseiwitsch. It stems from the 2007 publication of a fake Vancouver Sun that mocked the alleged pro-Israeli bias of the paper and its parent company, CanWest. Now, after dealing with a long list of procedural motions, Canwest Mediaworks Publications Inc. v. Murray is set to see Palestinian rights activists Murray and Moiseiwitsch face allegations in court of copyright and trademark infringement, as well as the tort of passing off.

The case comes as the federal government gets set to take yet another stab at revamping Canada’s copyright laws after it wrapped up consultations last month. A new law is an opportunity, some lawyers say, for Canada to update provisions within the Copyright Act to make it clear that parody is legal. For Roanie Levy, general counsel for Access Copyright, the issue isn’t that laws don’t allow for parody; rather, she says, they don’t expressly state that they do. “The law is not clear. In my opinion, [an exception for parody] is there. But we don’t have a lot of case law on it in Canada,” she says, calling for a “specific, limited exception” for such works.

Other lawyers, however, are more vocal about the need for a change, something they say would address long-standing restrictions on freedom of speech since the Federal Court in Compagnie Générale des Établissements Michelin v. National Automobile, Aerospace, Transportation and General Workers Union of Canada ruled against the workers’ unflattering use of the tire company’s mascot during an organizing drive in the 1990s. The judge at the time rejected the union’s argument that parody fell under fair-dealing defences for criticism in the Copyright Act, a ruling that sparked concerns the courts would take a restrictive approach to allowing satirical works.

But since then, a review of fair-dealing exceptions to copyright infringement by the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada has led others to conclude that the justice system will permit parody. That case dealt with exemptions for research, but in calling for a more liberal interpretation of fair dealing, the ruling appeared to open the doors more widely to parody. Ron Dimock, an intellectual property lawyer with Dimock Stratton LLP, agrees with those assessments but says whether parody will pass the legal test depends on several factors identified by the court.

“It’s hard to use parody unless people see it being very original,” he says. Issues to consider, he notes, include whether, as a critical work, the parody identifies the source, how much of the original content it took, the extent to which it competes with the copyrighted material, and what its purpose is. In cases involving research, he points out, someone arguing the fair-dealing defence where the copyright infringement was for a commercial use would have a harder time getting past a judge than someone who did so for non-profit reasons.

But Dimock isn’t convinced that parody is a major concern the government should be looking at as it mulls over a new law. “I don’t think that parody is a burning issue,” he says. “What bothers people these days is the issue of downloading off the Internet.”

Still, noting that countries such as the United States make relatively generous allowances for parody under their copyright laws, Howard Knopf says it’s time for Canada to get on board. “We don’t seem to have a sense of humour. It’s certainly getting in the way of a lot of creative work,” says Knopf, a lawyer with Macera & Jarzyna LLP in Ottawa, of current laws.

His preference would be for a blanket exception for parody under fair-dealing provisions. But like Dimock, he feels the government also needs to address more pressing issues as it considers changes to the Copyright Act, a law that has come under some criticism internationally for Canada’s allegedly liberal approach to the issue of downloading works online. He’s adamant the government avoid repeating controversial elements in its last attempt at reform, bill C-61. That proposed law, which died in Parliament due to last year’s election call, came under heavy criticism for its language on anti-circumvention measures. They involve so-called technical protection measures (TPMs) and digital rights management (DRM) provisions that companies place on products to prevent consumers from copying works.

Bill C-61 would have made it illegal for people to break those digital locks, but as Knopf points out, sometimes consumers have a legitimate reason for doing so. People in Canada who receive a DVD from relatives in India, for example, might want to get around the region code that prevents them from watching it here. That’s not illegal copying, so Knopf argues that bolstering restrictions on doing so in law is unfair. “What most balanced people want is they see very little need for protection for DRM,” he says. “What we need really is protection from it.”

Peter Wells, an IP lawyer at Lang Michener LLP in Toronto, takes a similar approach. Noting Apple Inc. has loosened digital locks that stopped people from transferring iTunes songs onto devices other than its own products, he argues the battle over TPMs is lost. “People know if you try to lock this stuff up, there is some bright bunny somewhere who will figure out how to decode it,” he says.

Access Copyright’s Levy, however, takes a different approach. As she points out, also of concern is the related idea of format shifting. For example, while a publisher can’t digitally lock up a physical book, Levy says the prospect of people scanning works into a digital format they could then make available online is a concern to the writers and artists who get income from her organization through its copyright licensing services. Stopping book owners from making such copies for personal use would be difficult, of course, but Levy argues the laws should protect copyright owners until alternative business models — such as having publications widely available for sale in electronic form — become more viable. “I think time needs to be given to let the market deal with the user community,” she says, adding she is skeptical of arguments that copyright owners should adapt to the reality of digital copying right away. “I think it would be dangerous to set policy on the basis of what people are doing.”


In any discussion of copyright, the issue of Canada’s involvement in the World Intellectual Property Organization Copyright Treaties almost inevitably arises. Canada has signed on to the document but has yet to ratify it, something many lawyers — particularly those who act for copyright owners — argue is long overdue. “It’s just good housekeeping to make sure we implement our treaty obligations,” says Dimock.


Levy, too, feels a law consistent with WIPO would also be good for copyright owners, particularly since, in her view, it would involve granting “making available rights” exclusively to them. That is a key issue in downloading, she says, since it allows governments to go after intermediary web sites that facilitate online piracy of works like music and movies. Such web sites, most notably The Pirate Bay, can sometimes slip through copyright laws by claiming they don’t upload music themselves but merely allow users to find them. But in recent litigation against the owners of that site, Swedish provisions against making copyrighted materials available in the first place were key to convicting those associated with The Pirate Bay, says Levy.


What will happen in the CanWest parody case, meanwhile, remains an open question given what lawyers say is the lack of a rich body of precedent on the issue. Jason Gratl, a Vancouver lawyer acting for defendant Murray, says the result will be an important one, particularly since he’ll likely be raising constitutional arguments. “It’s squarely a freedom of expression issue,” he says. “From the defendants’ point of view, the purpose of that case is to interpret intellectual property torts to not include parody or, alternatively, strike down any statutes that do include parody as an art form subject to limits.”


Particularly vexing for him is the fact that in his estimation, CanWest has been unable to prove it suffered any losses from the publication of the fake Sun.


While the 12,000-copy edition left in newspaper boxes and rapid transit stations included such button-pushing declarations as “Study shows truth biased against Israel,” Gratl says it would be dangerous for the courts to accept that the mock publication caused an imputed harm to the media giant based on a loss of corporate reputation.


“Really, it’s terribly obvious that the decline of the CanWest group is hardly attributable to this parody,” he says, noting he’s seen no evidence the public was actually confused by the fake Sun.


CanWest representatives couldn’t be reached for comment on the issue. Other copyright lawyers, however, say the company does have a case to make. “If I were placing bets, my money would be on CanWest in the court,” says Wells, who points out that while the defendants are arguing the content of what appeared in the fake paper was true, that’s not a valid defence in copyright law. He adds that a further challenge for Murray and Moiseiwitsch is Canada’s more restrictive take on free speech than in places like the United States. “Canadians tend to be a bit more emphatic about the need to be responsible. In the States, there are a lot more freedoms to say totally untrue things about politicians.”


If the B.C. court does accept the parody defence, the ruling would represent a liberalization of our copyright laws more in line with the United States. That’s somewhat of an irony, of course, given calls by advocates for copyright owners for more restrictive legislation here modelled on our southern neighbours and, by extension, the WIPO treaties. But for Wells, the pressure to bow to criticism that Canada is the “file-swapping capital of the world” by tightening our laws is similar to the current fear-mongering down south about our public health-care system. “Anyone who actually thinks that Canada is the downloading capital of the world is living in la-la land. We just don’t have the people,” he says. He argues that instead of accepting those claims and mimicking U.S. laws, Canadians should be recognizing that our copyright system is different and not necessarily inferior.


In his view, people shouldn’t be able to download works freely, but a revamped law should focus on facilitating new ways of profitably distributing content rather than protecting the traditional model. “We should be trying to think ahead of the curve rather than behind the curve,” says Wells.


That sentiment is far from universal, however, given the controversy that characterizes debate over copyright. Perhaps one of the few commonalities, though, is the notion that after years of failed attempts at reform, the need for change is pressing. “The Copyright Act needs to be constantly revised because of the technology and the advancements that are made,” says Dimock.


Still, he’s not optimistic the changes will actually happen. “Every time we seem to get copyright legislation on the table, we get an election and a new government. It remains to be seen what’s going to happen in the next [parliamentary] session starting in the fall.” 


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