Federal Court dismisses CBC’s copyright lawsuit over election attack ads

The Federal Court has dismissed the CBC’s copyright infringement lawsuit against the Conservative Party of Canada, finding that the unauthorized use of its broadcast footage in a political attack ad was fair dealing. The CBC launched the lawsuit in the final days before the 2019 federal election. At issue were four tweets and a 1:46 minute political attack ad titled “Look at what we’ve done.”  The ad took aim at Prime Minister Justin Trudeau and the Liberal government using clips from CBC news broadcasts as well as footage from CTV News, CityTV and Global News. In support of its arguments that the respondent had taken a “substantial part” of its footage and that its use of the footage was not fair, the CBC argued that using its footage in a partisan attack ad was detrimental to its journalistic integrity and reputation for neutrality as a state broadcaster. While the Court found that the CBC held copyright in the short clips and that the respondent had taken a substantial part of these works, Justice Michael Phelan concluded that the respondent was shielded from an infringement claim under the fair dealing defence.

Fair dealing and criticism

Canadian copyright law strikes a balance between the interests of creators in being rewarded for their works and the interests of the public in using those works. In limited circumstances, copyrighted works can be used without permission under the doctrine of fair dealing, provided: (i) that the use is for an allowable purpose; and (ii) the use is fair. For example, education, research, parody, satire and criticism are among the allowable purposes identified in section 29 of the Act. In this case, the Court accepted that a political attack ad is a form of criticism and is therefore an allowable purpose. While the broadcaster argued that criticism should only be an allowable purpose if it is directed to the work itself (as opposed to whatever it is about), this interpretation was rejected as too narrow and one that would favour form and stylistic choices over content. Criticism, Justice Phelan clarified, targets the ideas as well as the “social and moral implications of those ideas.” Having determined that the respondent’s use of the works in this case was for an allowable purpose, he turned to the issue of whether it was also fair.

Assessing fairness of political ads

The Court considered the six factors from the Supreme Court’s decision in Society of Composers, Authors and Music Publishers of Canada v Bell Canada for assessing whether a person’s dealing with works is fair and found that five of the six factors weighed in favour of fairness. Of note was the Court’s conclusion that the purpose of the criticism was to further the democratic process and that the ads were created for a legitimate political purpose. The Federal Court acknowledged the CBC’s concerns that using its footage in partisan ads (where the CBC is clearly identified as the source of the footage) could affect the public’s perception of its neutrality as a state broadcaster in the future. Interestingly, the Court speculated that there could be situations in the future where evidence of this sort of reputational harm might weigh in favour of unfairness, but, in this case, the Court found no objective evidence that the CBC’s reputation was adversely affected.

Section 29.1 – A double-edged sword?

One interesting aspect of this decision is the application of s. 29.1 of the Copyright Act. This provision states that a person who uses a work for the purposes of criticism or review must mention the source of the work if the use is to be excused as fair dealing. In the context of political attack ads that incorporate news footage, like those at issue in this case, it seems that mentioning the source could cut both ways. On the one hand, identifying the source of the footage (e.g. the CBC) will be necessary to meet the fair dealing requirement in s. 29.1.  On the other hand, there might be circumstances where identifying the source will adversely affect the reputation of the source which would be a factor weighing against fair dealing. In this case, the Conservative Party met the requirement in s. 29.1 with evidence that the CBC’s name, logo and branding clearly and repeatedly appeared in the footage. But that same evidence was used by the CBC, though unsuccessfully, to argue that the use of the footage was unfair since it adversely affected its reputation. One takeaway from this case is that it highlights how fair dealing will always be harder to establish in the context of criticism or review than it is with other “allowable purposes”. That is because the evidence that a defendant or respondent will need to satisfy one of the requirements (source attribution) may also weigh against a finding of fair dealing. It will be interesting to see where this “double-edged sword” lands in future cases like this.