10/09/2014 12:01 EDT | Updated 12/09/2014 05:59 EST

Copyright loophole for political ads mulled by Tories

Is the Conservative government angling to add a loophole to allow political parties to dodge copyright claims when compiling news clippings and TV footage to launch attack ads against their rivals?

According to internal documents obtained by CBC News, a proposal to do just that has been floated at cabinet by Canadian Heritage.

Last May, representatives from Canada's major broadcasters, including CBC, Radio-Canada, CTV, Rogers and Shaw, served notice that they would no longer air political advertisements that include material taken from their airwaves without their express authorization.

A new exception proposed by Canadian Heritage, however, "would allow free use of 'news' content in political advertisements intended to promote or oppose a politician or political party, or a position on a related issue." 

Its use would be restricted to "publicly elected officials, party leaders, and those who intended to seek such positions" as well as registered political parties, and would also extend to their agents and distributors, including YouTube.

Such an exception "will provide greater certainty for political actors who wish to use 'news' content in their political advertisement without being bound by rights holder authorization," it says.

It would, however, "not affect the moral rights of the content creator."

"A creator could oppose the use of their content if they feel it negatively affects the integrity of their work or reputation," it states, but adds that "corporations — e.g. broadcasters — cannot hold moral rights; however their employees — e.g. news director — may, if they have not waived them."

It also wouldn't circumvent copyright "protected by a digital lock."

Document warns of 'unforeseen circumstances, unintended consequences'

Despite asserting that the proposed change "is narrow, and carries a low legal risk," the documents nevertheless warn that the "legal and political complexity, and the speed with which the exception was developed" could result in "unforeseen circumstances that create unintended consequences."

Among the potential stumbling blocks listed: a less-than-positive likely reaction from "creators of news," who will, it predicts, "vehemently claim that their work is being unfairly targeted for the benefit of political parties," as well as possible concern among musicians and photographers.

Meanwhile, the broader user community, it states, "may interpret the exception as supporting 'political expression,' but will likely call for it to be broadened to include other political players."

The presentation is undated, so it's not clear whether the proposal is a new one — or, for that matter, if it found any support around the cabinet table.

The office of Pierre Poilievre, minister responsible for Canada's election laws, declined to comment on the reported proposal.

The next budget implementation bill is, however, expected to be tabled later this fall, which will likely answer that question. 

In a blog post written in response to reports of the government's plan, University of Ottawa law professor Michael Geist suggests that the current laws surrounding "fair dealing" — the Canadian term for the more familiar "fair use" — may be sufficient to protect political parties from copyright claims.

'Existing law' may be enough: Geist

 "As a starting point, I think the government should simply rely on existing law," he notes.

"With a robust fair dealing provision and a cap on liability for non-commercial infringement, the risk of an infringement claim is low."

The rumoured proposal "may be a solution in search of a problem," he continues.

"We would do better to test the boundaries of the current law rather than bury an exception in a budget bill."

If the government truly believes the existing fair dealing provisions don't go far enough, he writes, "the far better approach would be to establish a full fair use provision in Canada."

"A fair use provision offers the benefits of applying in all circumstances (not just political advertising) and would be available to all users (not just political parties and candidates)," he notes.

"Moreover, it would ensure that usage would be subject to a fairness analysis, which this exception does not appear to do."

'Doesn't pass the smell test'

Meanwhile, back on Parliament Hill, opposition members panned the proposal.

"Maybe I have a little vested interest in it because I’m here, but it doesn’t pass the smell test," NDP MP Megan Leslie told reporters.

"I think if you’re going to be using other people’s work and claiming it in a way to be your own, saying 'This is mine, I’m going to use it in this attack ad, this is conveying what it is that my party believes' —  I think there’s a copyright issue there."

Newly elected Liberal MP Adam Vaughan was similarly skeptical of the plan.

"Taking a clip from a news organi‎zation is theft of intellectual property," he noted in an interview with CBC News.

"Using whatever video to make mischief is not a nice way to do politics."

The reaction from his caucus colleague Judy Sgro was even stronger.

"It's stealing," she told CBC News. "Those clips belong belong to the networks, they don't belong to the government."

She pointed out that the House industry committee had studied copyright for two years.

"This never came up."

She also made it clear whom she believes the real target of this initiative is likely to be.

"They've run out of methods to destroy Justin Trudeau," she noted.