Federal Court Provides Guidance on Fair Dealing in Copyright Law
The Federal Court has recently provided guidance on the issue of fair dealing with copyright works, dismissing a claim of copyright infringement brought by Canada’s national broadcaster against one of Canada’s major political parties.
During the federal election campaign of 2019, the Conservative Party of Canada (the “Conservative Party”) produced an “attack” ad criticizing the performance of the incumbent Prime Minister, whom the Conservative Party was trying to unseat. In its ad, the Conservative Party used relatively brief clips (a few seconds in length each) from the Canadian Broadcasting Corporation’s (the “CBC”) news broadcasts. The CBC claims copyright in its news broadcasts.
In dismissing the CBC’s copyright claim, the Federal Court found that the CBC did own copyright in the news broadcasts and that the clips that were used by the Conservative Party were sufficient in quality and quantity to qualify as a “substantial part” of those broadcasts. However, the Court found that the Party’s use of the clips constituted “fair dealing”, and was not an infringement of CBC’s copyright. The doctrine of fair dealing provides users of copyright protected material with a right to use the protected material in certain circumstances. Copying protected works in a manner that constitutes fair dealing does not infringe the owner’s copyright.
In order to constitute fair dealing, the copying of a protected work must be for one of several purposes identified in the Copyright Act, such as “research”, “private study”, and “criticism”. As well, the nature of the copying and use of the work must be “fair”, which is determined on a case by case basis, with reference to several criteria.
In this case, the Court found that the ad was made, and the news clips were used, for the purpose of “criticism”. The Court found that the fair dealing purposes listed in the Copyright Act should be interpreted broadly. Using the copyright protected clips to criticize a third party (the Prime Minister) was acceptable, even though the criticism did not relate to the works themselves, or the CBC.
With regard to whether the use of the clips was “fair”, the CBC argued that the Conservative Party’s use would create the appearance that the CBC was biased in favour of the Conservative Party, which would damage the CBC’s reputation as a politically neutral provider of news. The Court agreed that this concern could be valid, and could favour a finding that the use was not fair. However, the Court found that there was no evidence showing that the ad actually had this effect in this case.
The Federal Court’s decision illustrates that the doctrine of fair dealing, often referred to as a “user’s right”, is to be given a relatively large, liberal interpretation to permit the use of copyright works by all, for the enumerated purposes, and in a manner that is fair. The decision also serves as a reminder that the question of fairness is factual in nature. Factors to be considered in the analysis must be grounded in fact, and supported by evidence.
The Federal Court’s decision is published as Canadian Broadcasting Corporation v. Conservative Party of Canada, 2021 FC 425, and can be viewed at this link: Canadian Broadcasting Corporation v. Conservative Party of Canada – Federal Court (fct-cf.gc.ca)
Contact the professionals at Macera & Jarzyna, LLP for more information regarding copyright protection in Canada, and the doctrine of fair dealing.