Company Tries To Delete Recording Of Exec Cursing Analyst During Conference Call Via Copyright Claim

from the copyright-is-not-your-personal-time-machine dept

Oh, look. It's our good friend “copyright” being used to perform a some light censorship. Certain entities seem to love this aspect of copyright — the fact that it can be used to sweep something embarrassing under the rug.

The entity involved in activating copyright's wonder twin powers (form of a broom!) is Canada's Encana Corporation. And what needs to be swept away? A muttered expletive directed at an analyst who had the audacity to ask a tough question during a conference call.

Encana Corp, Canada's largest natural gas producer, apologized on Thursday because one of its executives cursed after an analyst asked about whether new Canadian investment rules would prohibit its takeover by foreign state-owned entities.

When asked the question by Canaccord Genuity analyst Phil Skolnick, interim CEO Clayton Woitas said: “The answer would be no.” Then, in a whispered comment that was clearly audible on a replay of the call, someone can be heard saying, “fucking asshole.”

Nice. Apparently, the swearing executive somehow forgot that being in a room full of microphones means even the under-the-breath swearing will be broadcast. Encana, of course, swiftly apologized for the low flying insult. But, instead of leaving it there (which would be perfectly acceptable — people being fallible and all that), it has decided it needs to erase the recording from the internet, in hopes that reality will fall in line with the official transcript of the conference call.

Unfortunately for Encana, the recording has already been uploaded to Chirbit, an audio sharing site, and so far the play button has been pushed over 55,000 times. Encana is now leaning on Chirbit to take the clip down.

On Thursday, Chirbit founder Ivan Reyes said he has received a takedown request from Encana. Mr. Reyes has declined, citing fair use provisions in copyright law and a site policy directing that such requests be sent to the poster of audio.

Encana, in its request, says:

“Encana is the copyright owner of the Recording. It was expressly stated at the outset of the Conference Call that 'this conference call may not be recorded or rebroadcast without the express consent of Encana Corporation',” the letter states.

“The Recording has been posted without Encana’s consent. The unauthorized use of this Recording clearly constitutes copyright infringement. … Encana views this matter extremely seriously and requests that you respond to the undersigned on or before the close of business on Friday, February 22, 2013, failing which, Encana will have no other recourse but to take all actions as may be available to it to protect its proprietary rights.”

Encana is trying to erase two words from the internet, something its spokesman finds reasonable and, more sadly, possible.

“I think any individual or organization that has something embarrassing broadcast over the web without proper permissions would make any attempt to have that content eventually removed as, understandably, we do not wish to have that clip living on in perpetuity on the web,” he said.

The clip was uploaded by a Globe and Mail reporter who had recorded the conference call, common practice among journalists to ensure accuracy in their reporting. Copyright over the entire call, much less those two words, is a pretty grey area. Over at the Canadian Intellectual Property Blog, Jahangir Valiani breaks down this scenario.

To be clear, assuming there is no agreement to the contrary, the only aspect of the conversation posted that Encana may be able to claim copyright over is the three words said by its employees. Copyright to the question posed by the third party would belong to that third party unless the person who posed the question assigned it in writing to Encana.

For copyright to exist in a statement, the statement being copyrighted must be an “original… work”. The test for originality in Canada requires the author to exercise skill and judgement, where the skill and judgement exercised must not be so trivial as to be characterized as purely mechanical. While the qualitative test for a statement to be a “work” is low, there is a quantitative minimum that must be met for copyright protection.

The statements made by the Encana executives in this scenario do not qualify for copyright protection as they fail to meet both the criteria for a copyrightable work. The obscenity was not an exercise of skill and judgement. It was an impulsive response to a question that the speaker found insulting. In fact, if the speaker had exercised skill and judgement, it is likely that the he wouldn't have said the obscenity at all.

Valiani says that, in this case, copyright protection for the exec's “unguarded moment” isn't impossible, it's just highly unlikely. If Encana has any recourse, it would be to pursue legal action for breach of contract, as Encana specifically prohibited third-party recording. As noted above, Chirbit is leaving the clip up, citing fair use.

This likely won't satisfy Encana, which clearly wishes the clip to be vanished into the copyright cornfield. The reality of the situation is that even if it gets the clip taken down, the recording will very definitely resurface. Encana's best move is to simply let it go. People swear and do inappropriate things at inappropriate times. Continued pursuit of the offending clip will only “Streisand” it, causing it spread across the internet like a sweary wildfire. Even if Encana is within its rights, it gains nothing by attempting to whitewash something that is already public knowledge.

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Companies: encana

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Comments on “Company Tries To Delete Recording Of Exec Cursing Analyst During Conference Call Via Copyright Claim”

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35 Comments
Rikuo (profile) says:

Re: Re:

In fact, here’s another blatant misuse of copyright law.

LittleKuriboh, the father of abridging anime, has received more copyright claims on his Youtube account…AGAIN. Again his works get automatically taken down, and again, he has to protest his innocence in order to get them back up.
https://www.youtube.com/playlist?list=PLA2DD0D51B9A8DCD7

This isn’t the first time. It’s somewhere between 5 and 10 times, at least by my count, that this has happened. But what’s happening here is that a very influential and famous celebrity is regularly having his free speech curtailed.

DannyB (profile) says:

The very purpose of copyright

Apparently, Jahangir Valiani doesn’t understand that one primary purpose of copyright is to censor any kind of speech that you do not like. Or videos you don’t own the copyright for.

It’s not about protecting creative works. It’s even less about providing an incentive to creators and artists. It’s about whatever self important people want it to be about. Like copyrighting legal filings and court documents. Or copyrighting public domain information, in order to protect it.

We will see more and more use of copyright as censorship tool. Travesties like the DMCA which just beg to be abused, may be the very thing that destroys copyright. Wouldn’t it be ironic?

pixelpusher220 (profile) says:

Copyright on spoken words?

“Copyright to the question posed by the third party would belong to that third party unless the person who posed the question”

Uh, how does a spoken question qualify for copyright at all? The ‘copyright’ is the recording and not the spoken words correct?

If the person asking the question is also the creator of the recording I get that they own the copyright on the ‘recording’ but not the words spoken themselves. And if there was an agreement to prohibit recordings of said call, then regardless, the recorder does not have the right to post it.

Of course logic and the Streisand Effect aren’t usually used together either…

Anonymous Coward says:

Re: Copyright on spoken words?

You are entirely correct – there is so much wrong in this story it’s hard to know where to begin.

Canadian law states that copyright applies when an expression is “fixed in tangible form.” Someone speaking something is not tangible, so copyright wouldn’t apply.

In this case, copyright would rest with the person doing the recording (note that each person doing a recording would have their own copyright, and couldn’t exercise rights over someone else’s recording of the same conference.)

If the person recording the call signed an agreement that gave copyright of the recording to Encana, then they would have something – but that’s not what they’re claiming. They’re claiming that the reporter agreed not to record it at all.

If the person recording the call agreed not to record it, they would be in violation of contract, but copyright has nothing to do with it.

out_of_the_blue says:

This is AGAIN the use of RARE anomalies to attack...

the everyday good that stems from copyright. Listen, guys, you can find endless little stories like this, but the fact is that nearly all copyright properly benefits creators for their products.

You rant about THIS ONE mis-use of copyright to stifle bad PR from a careless remark during a conference call, but every one of you every day enjoys the artistic and entertainment creations that are only possible in a legal framework where the profits from creations are protected.

In short, you’re ready to undermine 200 years of good because you want to watch some silly movies for free.

How about pointing your attacks to these actual bad (corporate) actors, rather than try to make it impossible for entertainers to be rewarded?

Take a loopy tour of Techdirt.com! You always end up at same place!
http://techdirt.com/
Where “I’m a pirate! You can’t stop me!” is one of the more thoughtful fanboy positions.

Rikuo (profile) says:

Re: This is AGAIN the use of RARE anomalies to attack...

” but every one of you every day enjoys the artistic and entertainment creations that are only possible in a legal framework where the profits from creations are protected.”

Does that include me? I for one DONT enjoy only works whose copyright is vigorously protected. In fact, most of the shows I watch are from ThatGuyWithTheGlasses.com, the Escapist, TheSpoonyExperiment, EpicMealTime, Machina, abridged anime etc. Every single one of whom exists not due to copyright, but in a way, despite it.
Try again, you retard.

jameshogg says:

Re: This is AGAIN the use of RARE anomalies to attack...

Here we are not taking into account the huge number of deviant markets (and therefore expressions) that could have flourished if it was not for the Communist-like destruction of said markets by Copyright.

But we can if you like.

I don’t think it’s enough to say that these same expressions can be expressed by other means, without using the characters and stories that originated from the author – that just sounds like euphemism for “taking the sting out of a message”. Portraying a character in a fashion of my choosing and altering a story to my choosing cannot exactly have the same symbolic power if I cannot use those characters and stories due to a wall of Copyright. I lose a lot of rhetorical, ironical and skeptical power that way. I’m sorry, but preventing the existence of deviant works is a denying of the right to expand on and criticise the original arcs.

Even in free expression debates that I regularly watch, sometimes those who support making hate speech a crime will throw a strawman and say “well there ARE limits to free expression, voice activated guns for example… or incitement to violence, or Libel… or Copyright…” The response is usually “if we were talking about those legitimate limits then they would have been the topics of discussion, but the real topic of discussion is whether opinions and ideas should be regulated – please stay on topic.” But you have to notice: they say “Copyright” for a reason – Copyright is, like it or not, regarded by a lot of people as an “acceptable limit” to free expression, even by some on the same Political dimension as I am (Secular, Humanist, etc).

But it is no longer an acceptable limit because the free-rider problem that creators face is now solved by a practical application of ticket-based admission – crowdfunded incentives. And we have all the evidence that tickets and admission works well based on the existence of gigs, plays, etc. Therefore crowdfunding will naturally follow. So no: “it’s either original markets or no markets whatsoever” is not an argument any more either. Both original creation and deviant creation markets can exist now because of crowdfunding, with no unnecessary censorship. Copyright only gives you original creation markets, and a whole lot of censorship.

“Censorship is at its best when noone admits it exists” said Nick Cohen. And I think it can be emphasised here. Not many people are even willing to stand up and say that deviant expressions are being stamped on because they think that stamping is justified due to Copyright. Can’t make better Star Wars prequels than Lucas? All justified censorship! Can’t animate “The Corporate Adventures of Mickey Mouse”? All justified censorship! Can’t reprint articles by Noam Chomsky for political discussion purposes? All justified censorship! (It’s happened..) Can’t make Lord of the Rings movies that more accurately reflect J.R.R. Tolkien’s vision? All justified censorship!

There are countless others that I cannot even mention. This is not an anecdotal argument.

Anonymous Coward says:

Re: Re: This is AGAIN the use of RARE anomalies to attack...

or incitement to violence,..

Restriction of this nature are only an indirect restriction on speech, they exist to protect the rights of other people and their property rights. When assault is illegal, inciting other people to carry out an assault should also be illegal.

Anonymous Coward says:

Re: This is AGAIN the use of RARE anomalies to attack...

“but the fact is that nearly all copyright properly benefits creators for their products.”

Actually, nearly all copyright does zilch. For example, the copyright on this post I’m writing right now – I own it, but I won’t hold my breath for a royalty check. But I will grant that copyright is properly used more often than it is misused, and many times it does its job by simply existing, without the need for enforcement. The major networks are not even going to attempt to rebroadcast the Super Bowl, because they know they cannot. Without copyright, they surely would.

Anyway… Encana cannot own the copyright just because it claimed at the beginning of the call that recordings were prohibited. One side declaring something is not a contract – and even if that statement was somehow binding, prohibiting recordings is not the same as claiming copyright on the recordings. Also, they cannot claim that those words they wanted deleted were somehow original, as I’ve heard them said many times.

It would be silly to abolish copyright over something like this – however, it seems like we see a story like this every week. It irks me to see copyright claimed where none exists, and it seems like there needs to be a way to discourage this behavior of using false claims to censor people.

“How about pointing your attacks to these actual bad (corporate) actors”

Isn’t that what this article is doing? It’s calling out the bad actor, Encana.

Ophelia Millais says:

Re: This is AGAIN the use of RARE anomalies to attack...

you’re ready to undermine 200 years of good because you want to watch some silly movies for free

Straw man. Some here do advocate for abolishing copyright and patent law, but most prefer reform.

If the copyright framework leads to injustice, no matter how much “good” also comes from it, then something needs to change. It is therefore not wrong to gripe about the abuses that come to light, nor is it wrong to advocate for reform. It is not immoral to question the myths and foundational philosophy of copyright, and copyright’s conflict with the public interest, public rights, changes in public opinion, and advances in technology. It is not wrong to challenge the self-serving power grabs by the copyright exploitation industry, or the abuses of copyright by those who want to avoid embarrassment or silence critics. It is, in fact, a noble and constructive endeavor.

Championing the status quo, with all its overreach and abuse by the entrenched industries which have come to rely on exploitation of others’ creative labor, not so much.

every one of you every day enjoys the artistic and entertainment creations that are only possible in a legal framework where the profits from creations are protected

Certainly there are creations that exist specifically to generate revenue within the copyright system, but these things exist and continue to be created despite flagrant disregard for the system among non-commercial users, especially on the Internet. People are already “watching silly movies for free” in staggering numbers, while the motion picture industry posts record box-office takes and revenues every year.

Decriminalizing what the public already is doing wouldn’t have the devastating effects you predict on the industry, because the public is already acting as if it isn’t a crime. So the “problem” of piracy is not a problem at all, and it could be “solved” with the stroke of a pen.

G Thompson (profile) says:

Re: This is AGAIN the use of RARE anomalies to attack...

Oh this is just too precious:

Your title of the post states “This is AGAIN the use of RARE anomalies to attack…”

Then in the first line of your comment you state “you can find endless little stories like this”

It seems you either have no idea about the absolute opposing meanings of “RARE” and endless. Or are just in the first stages of a major period in your life when your about to experience the horrible reality of what occurs when the logical part of your brain tries to strangle the insane rambling part.

Oh and as for entertainers being rewarded, I think you should start charging for your entertaining (the comedic value is awesome) posts here.. Sadly we all want the comments to be free so please be free to go elsewhere and try to charge for them

Anonymous Coward says:

Re: This is AGAIN the use of RARE anomalies to attack...

“but the fact is that nearly all copyright properly benefits creators for their products.”

No, boy, copyright benefits those who own the copyright, not the actual creators.
Just ask Jack Kirby (co-creator of the vast majority of Marvel Comics) or Jerry Siegel & Joe Shuuster (creators of Superman).

Joel says:

Re: Re: This is AGAIN the use of RARE anomalies to attack...

That is a bad example, since Kirby, etc did those as works for hire, did they not?

Did they know that 75+ years down the road it would be a billion dollar symbol? Nope, but that doesn’t change the original deal.

It isn’t a case of the creators of superman publishing an indie comic and then it gets picked up and used by DC without permission.

Tex Arcana (profile) says:

Re: This is AGAIN the use of RARE anomalies to attack...

BWAHAHAHAHAH!!!

You are such a self-deluded fool of a puppet, it’s not funny!!

Oh, fuck it, who am I kidding?? You’re fucking hilarious!

I think it’s high time that some of our more enterprising members 1) find pictures of your sorry self, and photochop a nice big arm leading from your ass to the MAFIAA overlords you have sold yourself to. And then chop that “fuckin’ asshole” audio onto the picture.

Just for good measure, you know: we have to warn the rest of the free-thinking world of your idiocy.

Anonymous Coward says:

Re: This is AGAIN the use of RARE anomalies to attack...

200 years of good? but apparently no movies have EVER made a profit and neither has any song that reached the billboard top 20.

Wouldn’t you say that 200 years of (according to hollywood and the big music labels) ZERO profits to the companies AND the artists counts as a failure?

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