The CBC, the CPC, and a Primer for Copyright in Canada Pt. 1

The dust from the most recent federal election is still settling. Leaving the politics involved aside, one of the more shocking revelations during the campaign (at least for those interested in intellectual property law) was news that the CBC was suing the Conservative Party of Canada for copyright infringement and the violation of the moral rights of news anchor Rosemary Barton and reporter John Paul Tasker.

Copyright lawsuits are not a new phenomenon. In fact, they have become a popular brand of litigation. A recent meme tweeted by President Donald Trump was taken down because it contained a clip from Nickelback’s Photograph music video. Ariana Grande commenced legal proceedings against clothing company Forever 21 for allegedly using her name, image, likeness and music for its own benefit without the singer’s permission. Marvin Gaye’s estate successfully sued Robin Thicke and Pharrell for copying the “sound” and “feel” of Gaye’s 1977 single, Got to Give it Up, in their hit Blurred Lines. Even Grumpy Cat Limited successfully sued the owners of US coffee company Grenade for exceeding an agreement over the legendary Grumpy Cat image.

Apart from the juicy copyright proceedings involving celebrities (and yes, cats made famous by the internet), a trend has emerged where every day Canadians are being increasingly exposed to copyright litigation. For example, Hollywood TV and movie studios are actively enforcing their copyright against Canadians who share and download copyrighted material via BitTorrent sites. In addition, Canadian class action claimants obtained a $20 million ruling against an obituary website that used unauthorized notices and images.

In an attempt to help the average Canadian understand basic concepts of copyright, the following is a brief foray into the world of copyright law as applied to the CBC’s case.

What is Copyright?

Copyright means “the right to copy”. Simply put, copyright prohibits others from copying your work, or a substantial part of it, without your permission. As outlined in section 3 of the Copyright Act, this includes the right to produce or reproduce, perform or deliver, and publish the work or any substantial part of it.

In their Statement of Claim, the CBC alleged that the Conservative Party of Canada infringed their copyright by using short video clips in a campaign ad and several Twitter postings, without their permission.

What is Protected by Copyright?

Copyright applies to all original literary, dramatic, musical and artistic works. Each of these general categories covers a wide range of creations:

  • Artistic works such as paintings, drawings, maps, photographs (for example, Jennifer Lopez and Emily Ratajkowski being sued over Instagram posts), sculptures and plans.

In the CBC case, the clips would fall into the dramatic works category.

Copyright also applies to performers’ performances, sound recordings and communication signals. Performers’ performances include a performance, recitation, reading, or improvisation of a literary, artistic, dramatic or musical work, whether or not the work was previously recorded and whether or not the work’s term of copyright protection has expired.

Rosemary Barton and John Paul Tasker would have copyright in their “performance”. In the CBC’s Statement of Claim, it outlined that the Conservative Party used the two journalists images inappropriately. However, it should be noted that the CBC filed an amendment to remove Rosemary Barton and John Paul Tasker from the legal proceedings, allegedly because it was the CBC and not the journalists who were the driving force behind naming them as plaintiffs to the application.

What are Moral Rights?

Copyright laws in Canada grant authors moral rights in addition to the economic rights in their works. Moral rights are concerned with the natural and inherent rights of a creator and include the right of the author to remain anonymous or to adopt a pseudonym, the right to prevent distortion, mutilation or modification of the work, and the right to be credited for the work.

The most well-known case involving infringement of moral rights is Snow v. The Eaton Centre Ltd., where prominent Canadian artist Michael Snow successfully sued the Toronto Eaton Centre. Snow’s sculpture in the Eaton Centre consists of dozens of sculpted Canada geese in flight. One Christmas season Eaton Centre placed red ribbons on the geese sculpture. These decorations were found by the court to distort and modify the sculpture to the prejudice of the artist’s honour or reputation and so ordered them removed.

Moral rights cannot be assigned or transferred but can be waived. Even if an author decides to assign their copyright in a work, the author continues to hold the moral rights to the work, unless they formally waive their moral rights.

How Long Does Copyright Last?

Under Canada’s Copyright Act, the general term of copyright protection for works extends for 50 years from the end of the year that the last living author dies. In the case of a work that has more than one author, the copyright will last for the remainder of the calendar year in which the last author dies, and for 50 years after that.

Copyright protection is set to extend to the life of the author plus 70 years, pursuant to Canada signing onto the new United States-Mexico-Canada Agreement. However, based on the current political climate, it is uncertain when (and frankly, if) this will come into force.

How Does One Breach Copyright?

Copyright infringement occurs where a person wrongfully uses a work without permission or does anything only an owner is allowed to do, as stated in the Copyright Act. Infringement may include acts such as copying, performing, selling, and distributing. Increasingly, infringement proceedings have commenced based on a posting of the work on the internet without permission.

Defences to Copyright Infringement

There are several ways to defend against any allegation of copyright infringement.

One way is to question the validity of the copyright and the owner’s right to enforce the same. Defences in this category include challenging whether the work is eligible for copyright protection (as opposed to possible patent or trademark protection), challenging whether the copyright has expired, and challenging whether the plaintiff is the actual owner of the work.

The individual who created the work is the author. The copyright owner is usually the author of the work, the employer of the author or any other person (or legal entity) that has obtained ownership through a transfer of ownership such as an assignment. In most cases, this will be an easy determination. However, it is not always an easy determination (see the infamous, Monkey Selfie Case). It is common for employment agreements and other contracts to default ownership in copyright to an employer or contractor.

Without going to the nuances of copyright ownership (for example, the multiple authors and owners who may have a claim to copyright), the CBC outlines in the Statement of Claim that they own the clips that were used by the Conservative Party of Canada, and therefore have the right to enforce the copyright.

Another way is to claim that the alleged infringement did not produce or reproduce a “substantial” part of the work. Courts have made it clear that not all reproductions of a work constitute copyright infringement. The determination of whether the produced or reproduced portion is “substantial” depends on the particular work in question and can involve several factors, including the size of the excerpt compared to the size of the entire work and whether a critical portion of the work was reproduced rather than a more negligible part.

Finally, the Copyright Act provides “fair dealing” exemptions. Allowable purposes for fair dealing are research, private study, education, parody, satire, criticism, review and news reporting. As Canada’s legal scholars have opined recently regarding the CBC case, there are strong fair dealing arguments in favour of reasonable usage. The CBC itself, like all broadcasters, regularly relies upon “fair dealing” exemptions to use the work of others without permission.

Conclusion

Time will tell how the CBC will resolve their copyright action against the Conservative Party of Canada. The case will certainly be closely monitored by those involved with copyright law and policy in Canada.

Copyright silently impacts society daily. However, as discussed above, there is a growing emergence of copyright litigation involving everyday Canadians. Everyone should be cognizant of copyright when they download a movie or post a picture on a social media site.

Most importantly, whether you have received a notice of infringement or a statement of claim alleging that you have infringed copyright, or you feel your own work has been infringed upon, such issues should be resolved with the help of a legal professional knowledgeable in the area of intellectual property and litigation.

If you have concerns about a possible breach of copyright or any other potential legal claim, Duncan, Linton LLP can help. Do not hesitate to reach out and speak with one of our lawyers. Contact us online or call 519-886-3340 to make an appointment.