POLITICS

Tory Cabinet Mulls Plan To Allow Use Of Journalistic Work In Ads

10/09/2014 01:38 EDT | Updated 12/09/2014 05:59 EST
OTTAWA - The Conservative government readied for combat on another front on Thursday — taking on the nation's media outlets and the intellectual property rights of journalists.

It's a long simmering battle, set to boil now with the leak of a secret cabinet presentation. It laid out a proposal by Heritage Minister Shelly Glover to change the Copyright Act to give a politician, party or the people who work for them the power to use video, audio, photographs from news outlets without permission or compensation.

The document, which does not indicate whether the proposal was accepted or even presented, sent waves through the Canadian journalistic sector Thursday. A senior media source said meetings that Glover had set up with the major networks had been abruptly cancelled.

But the issue has been brewing for years, and not just with the Conservatives.

The Liberal Party, back in 1988, won an injunction forcing the broadcasters to carry campaign advertising that included relatively short clips from the federal debates.

The networks fired a shot in May warning all provincial and federal parties that they would not carry any advertising that included content that was used without permission. There are no legal requirements on the broadcasters to carry political ads outside of writ periods.

"As news organizations, the use of our content in political advertisements without our express consent may compromise our journalistic independence and call into question our journalistic ethics, standards and objectivity," reads the letters signed by executives at the CBC, Radio-Canada, Bell Media, Shaw Media and Rogers.

Glover suggested in the Commons Thursday that the copyright proposal was the government's own shot across the bow.

"Major television networks should not have the ability to censor what can and cannot be broadcast to Canadians," Glover said.

"We believe this has always been protected under the fair dealing provisions of the law, and if greater certainty is necessary, we will provide it."

The content would include clips from radio and television news, footage from debate or events, newspaper and magazine articles, and could be used by political types from any level of government.

"It's expropriation, without compensation, it degrades integrity and freedom of the press. Why does this government behave like such a tinpot banana republic?" deputy Liberal Leader Ralph Goodale said during question period Thursday.

The Copyright Act was last amended in late 2012, after decades of debate and delays.

One of the central issues around the changes to the Act was the idea of "fair dealing," and who can use copyrighted work without permission.

Currently, there are exceptions for research, private study, education, parody or satire, news reporting, criticism or review. The amount of the work used must also be "substantial" to even be covered by the act.

The Supreme Court has also laid out a long list of criteria for evaluating whether the use of the copyrighted material is indeed fair, including the amount of the work being used.

David Lametti, a law professor and intellectual property expert at McGill University, said the government may well have an argument about the necessity of an exception for political discourse.

"Political discourse is to be valued above all other kinds of discourse, and it's up to political parties to make their claims and they use whatever elements they can use legally. And if this helps to foster political debate in Canada, then that's good," said Lametti, who is hoping to run for the federal Liberals next year in a Montreal riding.

Copyright lawyer Howard Knopf said the issue should also be seen in the context of freedom of speech.

"The irony is that news organizations of all people should recognize this—yes, they want to protect their own work, but how do they find out about the news? They all stand on each other's shoulders," said Knopf, a lawyer with Ottawa's Macera & Jarzyna LLP.

In the United States, there is a similar set of "fair use" tests that can be considered before copyrighted material is used.

Ken Paulson, president of the First Amendment Center, said it is common to see excerpts from news articles used in American ads, but not video clips — a practice that "will raise Cain" with the networks.

"They're not upset so much because of the property value, but because it aligns them with a political party when they're striving to be as independent as possible. It's damaging to their brand to be too closely affiliated to a political candidate," said Paulson, also dean of the College of Mass Communication at Middle Tennessee State University.

"If you're a smart politician you do not tick off the press, and using their broadcasts without their permission will irritate the press."

Hugo Rodrigues, president of the Canadian Association of Journalists, said the proposal subverts the goals of journalists in Canada.

"Journalists gather coverage for what they share with their audience, they're not gathering images, audio clips, video clips for political purposes."

Shelly Glover's Copyright Rules Proposal

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