Canadian Politician Uses Nutty Hybrid Copyright Complaint In Attempt To Stifle Criticism

from the if-this-then-that dept

The political debate in Canada is heating up, with the Conservative party recently launching a series of attack ads aimed at the new Liberal party leader, Justin Trudeau. Whatever you think of these kinds of ads — and I am of the mind that it sucks to see them getting more and more popular in Canada, no matter which party is using them — former Liberal leader and current Liberal MP Stéphane Dion has now shown everyone how not to respond to them. In a letter to Canada’s election regulators, Dion has presented the incredibly twisted argument that the footage in these ads violates copyright law, which makes it an illegal campaign contribution:

Recently, the CPC used footage owned by the Huffington Post and CTV in a television advertising campaign directed at the Liberal Party of Canada. These advertisements are being aired nationally, including in Labrador where a by-election is currently being held. I understand from media reports that the CPC is using this footage without the copyright holders’ permission and presumably without paying the copyright holders to license the material. I understand that the licensing of copyrighted materials ordinarily comes at a cost.

I am raising my concerns with you because the CPC’s unauthorized use of this material, while inconsistent with our country’s copyright laws, may also be non-compliant with the Canada Elections Act (the “Act”). In my view, the unpaid use of copyrighted material is a “non-monetary contribution” to the CPC, as defined in s.2(1) of the Act.

We’ve seen lots of people try to use copyright for the sole purpose of shutting down criticism before, but this situation is unique because of just how weird Dion’s argument is. He’s not actually asking for the Conservative party to be penalized for infringing on copyrights, or for the commercials to be blocked because they are infringing — how could he? He’s not the copyright holder. Instead, he’s claiming that making unauthorized and also unpaid use of the footage constitutes accepting non-monetary campaign contributions from CTV and the Huffington Post, and is asking for an investigation based on election rules.

Firstly, this just makes the Liberal party look insecure. It’s hard to believe there is any real concern about this as a campaign funding issue — it’s an attempt to shut up critics, plain and simple. More importantly, commentary and criticism are protected under Canada’s fair dealing laws just like they are under America’s fair use laws, which rips the foundation right out from under this argument. The Conservatives have every right to use the footage in this way without a license, but Dion’s request hinges on the idea that they didn’t pay for a license when they should have. Even if that were true, the idea that using something without permission counts as a “contribution” from the rightsholder is bizarre on the surface and likely to baffle most people — even if the definitions in the Elections Act make it at least conceivable that such an argument could prevail. In a battle for the people’s approval and support, devious policy tactics don’t look any better than aggressive attack ads.

Moreover, what exactly does Dion want here anyway? For Elections Canada to start investigating a civil copyright issue that hasn’t even been raised by the people with standing to do so? How would that even work? Without an accusation of copyright infringement from CTV or the Huffington Post, there’s no basis on which to investigate this. So far, the only word from the two news organizations has been to confirm that they didn’t give permission, and that they have “made our concerns known” — they haven’t even actually said they think the use was infringing, let alone brought a lawsuit. And if the Conservatives were sued over copyright, and a court found them guilty of infringement and ordered them to pay, would this still be an illegal campaign contribution? Dion’s whole argument is petty at best, and utterly paradoxical at worst.

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Comments on “Canadian Politician Uses Nutty Hybrid Copyright Complaint In Attempt To Stifle Criticism”

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You're a Gazelle! (profile) says:

That's why he lost

The attack ads worked on Dion and Ignatieff in the past because they couldn’t figure out how to handle it. Trudeau’s a different story. This strategy, along with the taxpayer paid Economic Action Plan TV ads telling us how great the government is and paid partisan constituent handouts saying how crappy the opposition is are really starting to peeve us Canucks.
Dion should just stay in the background on this one and let it play out ’cause it’s building up to backfire on it’s own.

Besides, nobody wants to look at that stuff during the Stanley Cup playoffs!

Trails (profile) says:

Re: That's why he lost

They didn’t’ work against Dion or Ignatieff. Dion and Ignatieff both worked against themselves. They lacked charisma even when compared to Stephen Harper (for people who don’t know Stephen Harper, that’s the Canadian political equivalent of opening for Bon Jovi).

I really think the attack ads had nothing to do with the prev election results, it was much more about frustration with the Liberal party and the leaders being fairly lackluster, combined with a very clever Conservative approach to Quebec.

Anonymous Coward says:

Morals aside, that’s politics for you. It’s a sneaky, underhanded legislative war and it usually isn’t pretty. And aside from TD, the ads themselves are receiving much more media coverage than Dion’s response. Not a good move, but he’s not shooting himself in the foot.

That said, I do agree that it’s petty to resort to tactics like this. Seems to be the name of the game in politics since the dawn of man.

ShivaFang (profile) says:

Dion is such a total hack, that’s why liberal minded voters have put NDP as the official opposition last federal election. (The ‘Liberal’ party, despite their name is actually centrist, politically)

The NDP espouses most of the values that the Pirate Party does, which is why the Pirate Party of Canada hasn’t fared well up here – we already have a dominant party that cares about Net Neutrality and Copyright Reform. I hope the Liberals don’t succeed in ‘taking back’ the official opposition slot (unless it’s to a majority NDP government)

Anonymous Coward says:

I am finding it hard to follow his logic, but amazingly enough, have it figured out, and there is even some form of logic in it. His logic runs thus:
1. the material requires a license
2. that license costs money
3. the material was used without a license
4. therefore, the CPC got the benefit of the license without paying for it
5. therefore, they have essentially received the cost of the license
6.this is an illegal campaign contribution

of course, under fair dealing laws, it fails at stage 1, not even mentioning how tortured the logic is.

BentFranklin (profile) says:

Re: Re: Re:

If the content had some fair market value as determined by other transactions and it was licensed for nothing to a campaign, that’s the value of the contribution.

If a campaign infringes and the rights holder does not assert their rights, I suspect an electoral law judge would see it as a contribution.

If a campaign infringes and the rights holder does assert their rights and demands payment, let the games begin!

Leigh Beadon (profile) says:

Re: Re: Re: Re:

If a campaign infringes and the rights holder does not assert their rights, I suspect an electoral law judge would see it as a contribution.

But how is an electoral judge to determine if it infringes if the rightsholder has not asserted their rights? There can be no copyright determination without a copyright lawsuit… Or are electoral judges supposed to arbitrarily decide to rule on non-existant civil copyright disputes? And are they qualified to do so?

Oblate (profile) says:

May be bordering on having a point...

IANACL, but taken separately his arguments may almost have some merit. If someone allows use of copyrighted material for free, when they normally charge for it, I could understand the argument that it is a contribution (exception- material covered under fair use). This is not the case here, though, as the material is not used with permission. Analogy- if I own a convention center, and allow a political party to use it for free, it should be a contribution. Dion’s argument in this case is more like they just walked in to the center and started giving speeches, when they’re actually in the public park (fair dealing) next door. Doesn’t make much sense.

Red Jeff says:

Quid pro quo?

(as a Canadian). If services are rendered on behalf of a political party, those said services must be accounted for as ‘political spending’ even if the price was $0. They account against how much any political party can spend in total. If no monies are exchanged it still counts against party spending at “fair market value” for said services.
The (socialist) NDP had unions pay for ‘advertising’ at NDP conventions at exorbitant rates so as to bypass limits to union/corporate party donations as disguised as a paid service. They repaid the monies.
The Liberal party in response to the Conservative attack ads are airing an ad that is shot on the set of “Degrassi High”… a production produced by a Liberal financial donor. No word as to who is footing the cost of this ad.

Leigh Beadon (profile) says:

Re: Quid pro quo?

As it turns out, yes the party paid for the set:

Though honestly, if the concern is quid pro quo, I don’t see how that’s particularly comforting. Isn’t the real value in permission to use the set, not the cost?

Besides, it seems to me that the threat of quid pro quo goes up if we decide that political parties using news footage isn’t covered by fair dealing. After all, that’s just giving the networks more quid to offer pro quo — whereas if it’s fair dealing, footage is not something networks can trade on for political favours.

Greg says:

Funny thing is, Justin Trudeau’s response ad was filmed at CTV studios on the former Degrassi stage, which is in fact an in kind contribution from the media to Trudeau. I await news as to whether he pays for this studio time, or at least counts the in kind amount. Although the amount would no doubt exceed the corporate limit.

FluffyMcDeath (profile) says:

Dione’s position isn’t so convoluted in my opinion. I had come to the same conclusion myself. In fact the author goes through the reasons why this makes sense but either fails to see it or tries to present it in such a way as to obscure it.

The Conservatives lift footage to use in ads. They should have paid – they didn’t and the media admits they have not given permission. Call fair-use if you like but find out what would happen to the average Joe if they did the same thing – if the media companies concerned disagreed with the message the footage was used for they would immediately move to block the use on copyright grounds.

The media companies, in this case, have not acted at all therefore they have given tacit permission to use something that they would otherwise have charged for or disallowed.

It’s not even surprising that the media would contribute to the conservatives in this way since the media owners and the beneficiaries of conservative policies is pretty much the same crowd.

The media companies like the cover of saying they didn’t permit the use but they aren’t going to go so far as contest the use – because they want the conservatives to have and use this material – ergo it’s a campaign contribution.

Strangely I am no longer surprised at the numbers of people who either don’t see it or who like jumping on the “ridicule” bandwagon. We get the governments we get because most people just play team and have no idea how things really work or who the teams work for.

Dion is mistaken, not in what is going on, but in thinking that people are smart enough to see it (especially in the face of someone telling them that you’d have to be an idiot to think that – think Emperor’s New Clothes). People don’t do complicated – they prefer simple even if wrong.

Perhaps a better gambit would be to propose a law that makes it illegal to mention any other party or party member in a political ad other than the party paying for the ad – but I’m pretty sure no party would actually vote for that.

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