Wednesday, October 15, 2014

The Phantom Menace, Pt II: Media Party's Outrage is Heavily Misplaced

No, it's not Attack of the Clones.

Previously on Bad Company I tackled the alarm raised about a series of emails exchanged between a consortium of Canadian media outlets about the use of copyrighted news footage in political advertisements. In 1988 a court case ruled that networks could not refuse to run an ad on copyright grounds, but the consortium is still threatening to do it in 2015.

Perhaps in response to or in anticipation of this, the Conservative Party has proposed to amend the Canada Copyright Act to allow for use of copyrighted news footage in political advertisements.

The Media Party immediately blew a gasket. And while the unequivocally unexplosive emails exchanged between various media bigwigs show no sign of collusion for political ends -- to my reading they seem genuinely and not-at-all-wrongly concerned about their copyrights -- the hands of media commentators are not nearly so clean.

Media commentators, on the other hand are frequently being downright hackish. They're overlooking the not-so-finer points of the matter and falling all over themselves to find something nefarious in all of this. Their greatest enabler so far has been copyright law expert Michael Geist. I don't dispute his expertise in copyright law, but his reading of elections law leaves a lot to be desired in his analysis of this amendment to the Copyright Act.

From Geist's column:

"...the proposal is very narrow. It would only apply to political parties, politicians, candidates, and their agents. The creation of an exception that only allows a select few to benefit is not a provision that can be defended on freedom of political speech grounds. We are all entitled to exercise our political speech rights. A new exception that guards against copyright stifling such speech should apply to all."

Really? Well, no. Let's look at the relevant section of the document Geist cites as his source:
Readers may want to do what Geist seems to have not done: read the bullet point before the one that refers to political parties.

"Proposed changes... 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."

That happens to be the Elections Act definition of third-party advertising. A registered third party is any group authorized to advertise in an election in support or opposition to a political party, or to promote or oppose a position on a related issue. Under the Elections Act, registered third parties are treated very much the same as a political party: they must have an official agent, report their expenses to Elections Canada, and are subject to spending limits.

In other words, for the purpose of the election, the registered third party is just that: a registered. Third. Party. Albeit a party that runs no candidates for election.

So while perhaps the next bullet point talks specifically about political parties, it's also helpful to note that it does so purely as a means of example -- that's what the "i.e." is meant to specify.

Don't expect anyone in the media party to correct this obvious mistake by Geist. As it turns out, Geist's error, even if they recognize it or not, helps them build up the idea that this is some nefarious hijacking of copyright law for political purposes. The fact that the amendment simply changes the Copyright Act (the legislation) to catch up to LPC vs CBC & CTV, 1988 (the case law) seems to be either entirely lost on them, or is simply being ignored. It wouldn't be the first time either transpired, especially where the Conservative Party happens to be involved.

And while the use of an ominbus budget bill to amend this legislation is a choice that is entirely open to be questioned (while omnibus bills are frequently used for such legislative "house-keeping," budget bills should contain the budget, and nothing else), that does not make the changes, in themselves, the sign of a malevolent or fascist government (as Don Martin recently suggested).

No matter how you slice it, there is more smoke than fire involved in this issue. It's just as simple as that.

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