The Federal Court recently released its decision in Canadian Broadcasting Corporation v. Conservative Party of Canada, 2021 FC 425 [CBC] in which it found that the Conservative Party’s use of CBC’s copyrighted materials in their political campaign fell under the fair dealing exception in the Copyright Act. The court deemed the Conservative Party’s use of substantial sections of CBC’s original works to be fair because the usage fell under the category of criticism. In making this decision, the court left the door open for future users of copyrighted materials to argue that their use falls under the fair dealing exception for criticism even when the reproduced work itself is not the target for criticism.
The disagreement between CBC, the plaintiff, and the Conservative Party of Canada, the respondents, arose due to the fact that the respondents reproduced the plaintiff’s original works in one advertisement and four tweets during the 2019 federal election period. The advertisement was part of a series of negative commercials criticizing the Liberal government and it contained excerpts from several of the plaintiff’s TV segments. The tweets contained plaintiff owned footage of the federal election’s leaders’ debate.
In reaching its decision, the court focused on whether the respondents had taken a substantial part of the plaintiff’s works and whether in doing so, the respondents’ use fell under the fair dealing exception in section 29 of the Copyright Act.
From the outset, it was established that as the maker of the cinematographic works, the plaintiff was the owner of the clips used in both the advertisement and the tweets. The court went through the five factors set out in Cinar Corporation v Robinson, 2013 SCC 73 to establish whether a substantial portion of the plaintiff’s work had been taken by the respondents:
1) the quality and quantity of the material taken, including the importance of the parts taken to the plaintiff’s work and the extent of originality of the parts taken.
2) the extent to which the impugned use adversely affects the plaintiff’s activities and diminishes the value of the plaintiff’s copyright.
3) whether the material taken is the proper subject-matter of copyright.
4) the purpose for which the material is taken, including whether the defendant intentionally appropriated the plaintiff’s work to save time and effort.
5) whether the material is used in the same or similar fashion as the plaintiff’s.
Firstly, the court determined that quantitatively, the clips used by the respondents were minor portions of the plaintiff’s works, but that when a qualitative analysis was undertaken, the reproduced portions represented a substantial part of the plaintiff’s works. The court made it clear that the words being spoken in the clips belonged to the interviewer or the speaker and that the facts, information, and ideas in the segments are not protected by copyright. However, it was emphasized that what was used by the respondents included “artistic design, production services (lighting, camera work, audio, etc.) and journalistic decisions (i.e. the flow of discussions and the election and posing of questions)” (CBC at para 50), all of which required an exercise of skill and judgement from the plaintiff.
Secondly, the court said that the plaintiff’s brand appeared strong enough to counter any accusations that they were involved in partisan politics, but that as a state owned company, the plaintiff was not unreasonable in wanting to appear politically neutral.
Thirdly, the court established that the works at issue were all the proper subject matter of copyright.
Fourthly, the court found that the purpose for using the plaintiff’s original works was to save time and money in the process of creating an impactful political campaign that would influence voters. This purpose for taking copyrighted works supported the finding that a substantial portion of the plaintiff’s work was used by the respondents.
Lastly, the court stated that there was no basis for contending that the respondents had used the material in a similar way to the plaintiff. This was the only factor that leaned strongly against a finding of substantiality, but it was emphasized that this factor has little weight in determining substantiality.
Ultimately, after going through the five factors, the court determined that the TV segments that were taken by the respondents constituted a substantial part of the plaintiff’s copyrighted materials.
Fair Dealing Analysis
The court then conducted a fair dealing analysis to determine whether the use of the appropriated substantial part of the plaintiff’s works was acceptable under the Copyright Act. They used the two-step analysis outlined in CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 (CCH) to determine whether the dealing is for an allowable purpose and whether the dealing is fair.
It was established that the purpose of the respondents’ uses of the plaintiff’s works in their advertisement and tweets fell under the fair dealing category of criticism. It was reiterated that “it is not merely the text or composition of a work that may be the object of criticism but also the idea set out in the work and the social or moral implications of those ideas” (CBC at para 79). For this reason, the condemnation directed at the Liberal government through the advertisement and tweets was enough to qualify the usage as allowable because the overall works’ purposes were criticism, even though the plaintiff’s included works were not being criticized themselves.
In moving on to determining the fairness of the respondents’ use of the plaintiff’s materials, the court looked at the six factors that are engaged in a fairness inquiry, as established in CCH:
1) the purpose of the dealing;
2) the character of the dealing;
3) the amount of the dealing;
4) the existence of any alternatives;
5) the nature of the work; and
6) the effect of the dealing on the work.
Firstly, the court found that the dealing was for a legitimate political purpose because the goal of both the advertisement and the tweets “was to mount a political campaign to secure votes to form a government” (CBC at para 90). As such, the first factor pointed to a finding of fairness.
Secondly, the court determined that the character of the dealing weighed against fairness. In coming to this decision, they pointed to the fact that the advertisement and tweets were disseminated over the internet and viewed by millions of people rather than reproduced in a single copy.
Thirdly, the court stated that although the clips did contain important footage, the quantitative amount of the work used was minimal. This signals that although the segments taken by the respondent constituted a substantial part of the plaintiff’s copyrighted work, the use of this substantial part was still considered fair for the purposes of a fair dealing analysis.
Fourthly, the court established that there were alternative ways in which the respondents could have communicated their message without using the plaintiff’s copyrighted works, but that it is difficult to determine whether the alternatives would have been reasonably effective. Thus, the fifth factor was found to be neutral in the fairness analysis.
Fifthly, the court decided that the nature of the work favoured a finding of fairness because the plaintiff’s TV segments were already published works that were widely disseminated and designed for public viewing.
Lastly, the court found that although the plaintiff’s concerns for its political neutrality were reasonable, there was no evidence that the respondents using the clips had resulted in any sort of reputational damage. Therefore, there was no finding of unfairness for the final factor.
In weighing all of these six factors, the court ultimately held that the respondents’ dealing was fair.
The court determined that the respondents’ use of a substantial portion of the plaintiff’s copyrighted works was fair and dismissed the plaintiff’s request for relief. This decision creates a potential option for users of copyrighted works to argue that their actions fall under the fair dealing exception for criticism even when the reproduced work itself is not the target of the criticism.
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