Risk Management and Crisis Response Blog

CBC lawsuit against CPC raises questions about use of copyrighted media content in partisan election advertisements

Oct 18, 2019 3 MIN READ
Kevin O’Brien

Partner, Disputes, Toronto

Nathaniel Lipkus

Partner, Intellectual Property, Toronto

Graham Buitenhuis

Associate, Disputes, Toronto

The CBC has commenced a court proceeding against the Conservative Party of Canada (“the CPC”) and others alleging that their unauthorized use of copyrighted materials in election advertising created the impression that the CBC and its journalists are biased, thereby harming their reputation. The claim raises questions about whether and when political parties may use copyrighted materials in partisan campaigning.

The dispute centres on the CPC’s use of several news clips – some of which featured CBC news reporters Rosemary Barton and John Paul Tasker, who are (at present) also listed as applicants in the suit – in partisan election advertising videos. The CBC alleges that the CPC used the clips in a manner that could lead viewers to conclude that the CBC and its journalists are biased against a particular political party. The CBC alleges that the use of the copyrighted material “takes advantage” of the applicants’ “respected integrity and independence in a way that undermines public confidence in Canada’s national public broadcaster at a critical time: during a national election campaign”.

“Moral rights” and “fair dealing”

CBC’s application seeks a declaration that the CPC made unauthorized use of its copyrighted material as well as injunctions preventing future unauthorized use of its content. The CBC also sought a declaration that the CPC “violated the moral rights” of CBC and its reporters by damaging “the reputations of the applicants as independent, non-partisan journalists by associating them with partisan causes”. Moral rights are the author’s right to the integrity of the copyrighted work; moral rights are infringed when the work is modified or used without the author’s consent in association with a product, service, cause, or institution to the prejudice of the reputation of the author. CBC argues that the CPC interfered with the integrity of its work by “taking excerpts out of context, selectively editing them” and inserting them into the CPC’s partisan materials. The claim alleges that this use has tarnished the CBC and its reporters’ reputation for fairness, and “may leave a viewer with the impression that the journalists are… biased” contrary to their obligation to be impartial.

The CPC has publicly stated that it will fully dispute the lawsuit. The CPC and other commentators have argued that the use of the clips is protected by the  “fair dealing” exception. Sections 29-29.2 of the Copyright Act provide that using copyrighted materials for certain listed uses, including criticism, review, or news reporting, does not infringe copyright so long as the works are properly attributed to the authors and/or copyright owners. The use of the copyrighted materials must also be “fair”;  to decide whether a dealing was “fair”, courts will consider factors such as the purpose, character, and amount of the dealing, as well as the nature of the work and the effect of the dealing on the work. Although fair dealing is a defence to copyright infringement, it may not be an available defence to an author’s claim of moral rights infringement.

The legal merits of the claim are difficult to assess at this early stage of the dispute. However, the case could have interesting implications for the use of news broadcasts in partisan advertising. It has also garnered significant attention leading up to the Federal election.