Decision weighed whether media company can prevent political parties from using its works
The Federal Court recently suggested a broader interpretation of what it means for fair dealing to qualify as criticism, compared with the treatment of this issue in previous case law and practice, lawyers at Bereskin & Parr LLP have said.
Naomi Zener, counsel whose practice areas include copyright law, and Tamara Céline Winegust, associate and member of the firm’s trademarks and copyright practice group, co-wrote the blog “Court's Liberal Approach to ‘Criticism’ Fair Dealing in Favour of Use of Copyrighted News Material in Political Ads,” with articling student William Audet, which discusses Canadian Broadcasting Corporation v. Conservative Party of Canada, 2021 FC 425.
In that case, the applicant Canadian Broadcasting Corporation initiated a copyright infringement case assailing the respondent Conservative Party of Canada’s use of its works. First, the respondent reproduced excerpts from original TV segments in a political advertisement, which was published during the 2019 federal election period and which criticized the Liberal government and Prime Minister Justin Trudeau. Second, the respondent included video clips from a recording of a federal leadership debate in four tweets on its French- and English-language Twitter accounts.
The Federal Court found that the respondents’ use of CBC’s copyrighted material was for an allowable purpose and amounted to fair dealing. The respondents used the material to criticize the ideas and actions of Trudeau and of the Liberal Party and to mount a political campaign that sought to secure votes to form a government, said the court.
The court also weighed the six factors found in Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36 (CanLII),  2 SCR 326 and determined that the use of the copyrighted material overall supported a finding of fairness.
The CBC ruling, as it stands, provides that a dealing can qualify as criticism if the video clip used supports the critical thesis of the work in which the user embeds the clip, which means that the user no longer needs to critically comment on the clip itself, whereas traditionally, a critical analysis of the content of the clip was required before the court would even consider whether the dealing was fair, Zener and Winegust told Canadian Lawyer.
The CBC decision also offered a large and liberal interpretation to the technical source attribution requirements in the Copyright Act in the matters of fair dealing and of news reporting when it found that it was sufficient for CBC’s logo to be embedded and visible in the clips, the two IP lawyers say.
The CBC ruling, alongside the Ontario court’s 2020 decision in the Wiseau case, which also broadly interpreted what can be considered news reporting to include documentary films, demonstrates an emerging trend of courts willing to find fair dealing where the content has been repurposed in a manner that contains a public interest component, say Zener and Winegust.
“It reflects some of the trends we have seen in the United States Courts’ development of its ‘fair use’ assessment around the concept of ‘transformative use,’ which has not been adopted in Canada,” they add.
Justice Michael Phelan, writing for the Federal Court, determined that the respondents’ advertisement and tweets took a substantial part of CBC’s copyrighted works and that the works at issue constituted a “taking of CBC and its employees’ skill and judgment.”
According to Zener and Winegust, this statement may open the possibility of Canadian courts recognizing co-authorship of a corporate body like CBC, in combination with its human employees, of original works capable of copyright protection, whereas traditionally, Canadian law requires a human author. U.S. law, in contrast, recognizes corporate authorship, note the lawyers.
The pending Supreme Court of Canada decision in York University v. Access Copyright, which also deals with the matter of fair dealing, will undoubtedly impact the ruling in the CBC case, they say.