Copyright Maximalists And Lobbyists Celebrate Vancouver Aquarium Censoring Critical Documentary With Copyright

from the copyright-is-censorship dept

We've written many times about how copyright is frequently used for censorship, and just recently we wrote about law professor John Tehranian's excellent article detailing how copyright has a free speech problem, in that people using copyright to censor has become more common and more brazen. Whenever we write this kind of thing, however, I get pushback from copyright maximalist lobbyists and lawyers, who insist that no one really wants to use copyright for censorship purposes, but merely to "protect" their works.

I'm finding those claims difficult to square with the following story, which I only found out about because the Copyright Alliance -- a front group for the big legacy entertainment companies, and put together by some well known lobbyists -- tweeted out a link to a story on a blog by Hugh Stephens, entitled A Whale of a (Copyright) Tale. Stephens is a former copyright policy guy for Time Warner as well as a former diplomat, who blogs about copyright issues in Canada.

He happily tells the tale of how the Vancouver Aquarium has successfully blocked filmmaker Gary Charbonneau, who made a documentary critical of the Aquarium's treatment of dolphins and whales, from using clips from the Aquarium's website. In the original version of the documentary, approximately five minutes of the hour-long film came from clips he pulled from the Aquarium's own website. The Aquarium wanted to get the entire film blocked by the court, giving you a pretty clear vision of how they were looking to censor the film. While the courts have not gone that far, they did order Charbonneau to make a new edit and remove all of those clips.

Stephens not only thinks this is a perfectly grand solution, he mocks Charbonneau for not having thought more carefully about the copyright issues here (really):
Charbonneau may be facing substantial damages if he is found to have violated the Aquarium’s copyright. You would think that Charbonneau, as a film-maker and creator himself, would have given this greater thought. It would have been so much simpler and straightforward to have taken a little more care to consider the implications of using copyrighted content without permission, and accessing clearly-legal alternate sources if necessary. That is the true moral of this story.
Wow. It's as if Stephens has no idea that filmmakers regularly rely on fair use -- and that's especially true of documentary filmmakers. It's why, here in the US, there's been a big movement to build best practices concerning fair use to help better protect documentary filmmakers in making use of the works of others. Yes, this case is in Canada, rather than the US, and they have a somewhat different set of rules involving fair dealing, but let's cut through the semantics and get to the basics:
  1. The Vancouver Aquarium did not need copyright to produce videos to put on its website. It made those videos to help market the aquarium.
  2. The Vancouver Aquarium did not sue Charbonneau because they were concerned about copyright.
  3. The Vancouver Aquarium did not sue Charbonneau because they were protecting the vast licensing market for the marketing videos they put on their website.
  4. The Vancouver Aquarium sued Charbonneau because they don't like his film, wanted to make life difficult for him and wanted to censor the film.
And copyright maximalist lawyers and lobbyists are cheering this on. I guess it's good that they're making their true colors known, but it is rather sickening.

The details of the case just make this look more and more ridiculous. The Aquarium claimed -- and the judge accepted -- that leaving the clips up in the movie while a full trial happened would create "irreparable harm." What possible irreparable harm would happen here? Yes, the Vancouver Aquarium's reputation may be harmed, but that's not a copyright issue. Again, it's difficult to see what copyright related harm could possibly come from this. Would it harm the Aquarium's ability to license those clips? It's hard to believe there's a very big market for that. And, even if there were, that's the kind of thing where a monetary remedy would fix any such harm. The only conceivable harm comes from what would normally be protected speech if one actually supported freedom of expression.

Hell, even the Aquarium more or less admits that it brought this lawsuit not because of any copyright issue, but because they don't like Charbonneau's message:
The Vancouver Aquarium Marine Science Centre said in a statement it's pleased with the decision. The centre said it's seeking to protect copyrighted materials developed to raise awareness about ocean conservation.

"We feel strongly that the conservation, research and education programs we lead need to be fairly represented and protected from those who choose to deliberately make false claims," said the statement.
So sue him for defamation, not copyright infringement.

Stephens, in his blog, also suggests that it's no big deal for Charbonneau to re-edit the film without those clips, because Charbonneau was quoted elsewhere saying many of those clips "were filler." I must admit, I always find it quite comical how those who claim to represent the interests of artists then think that it's fine for lawyers and judges to make artistic choices for the content creators. Charbonneau had creative reasons for using those clips. We should be quite worried when lawyers, lobbyists, judges and diplomats suddenly think that they're in the business of deciding which creative choices are allowed and which are not.

So, remember this story the next time you see these people claiming that (1) they stand up for the artist or (2) that copyright is not used for censorship. They're lying.

Reader Comments

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  1. identicon
    Anonymous Coward, 26 Apr 2016 @ 9:42am

    They were worried about the film harming their reputation.

    Oh, what irony.

    reply to this | link to this | view in thread ]

  2. icon
    Coogan (profile), 26 Apr 2016 @ 10:00am

    Of course, the best way to get back at them would be to leave the "copyrighted" clips in, but black them completely out with a big statement in red lettering saying "REMOVED BY ORDER OF THE VANCOUVER AQUARIUM".

    Naturally, a viewer seeing this in a film about the Vancouver Aquarium's possible mistreatment of dolphins would wonder what they were trying so hard to hide. Copyrighted web site images? Probably not. Vivisection of Flipper? More likely.

    reply to this | link to this | view in thread ]

  3. icon
    Nina Paley (profile), 26 Apr 2016 @ 10:03am

    censorship vs. copyright

    reply to this | link to this | view in thread ]

  4. identicon
    I.T. Guy, 26 Apr 2016 @ 10:08am

    I get pushback from copyright maximalist lobbyists and lawyers

    Q: How can you tell when copyright maximalists, lobbyists and lawyers are lying?

    A: Their mouths are moving.

    reply to this | link to this | view in thread ]

  5. icon
    That One Guy (profile), 26 Apr 2016 @ 10:21am

    Different standards

    So sue him for defamation, not copyright infringement.

    With copyright infringement all you have to do is claim that it's infringing, and that's good enough for most judges, and now the other person has to demonstrate how it's not.

    For defamation claims on the other hand you actually have to demonstrate how it's defamation, and courts are much less likely to adopt a 'shoot first, deal with the mess later' approach unless the defamation in question is so blatant, and so bad, that it's obvious to anyone and leaving it up with have very real negative consequences for the defamed.

    They used copyright for their censorship rather than defamation because the bar is much, much lower for copyright claims, and because with copyright the target has to demonstrate innocence, rather than the accuser having to prove guilt.

    reply to this | link to this | view in thread ]

  6. icon
    Ninja (profile), 26 Apr 2016 @ 10:22am

    In other news, Ms Streisand pays a visit to Vancouver Aquarium. Hilarity ensues.

    I await for the backlash.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, 26 Apr 2016 @ 10:26am

    This article isn't quite hyperbolic and hysterical enough.


    reply to this | link to this | view in thread ]

  8. icon
    Ninja (profile), 26 Apr 2016 @ 10:38am

    Re: Different standards

    Have my insightful vote. If the intent was justice then they would go down the defamation path.

    Interestingly, even if the aquarium is actually doing a good job keeping the animals healthy this has driven me to think otherwise. How many had the same reaction? How much worse is their image now?

    Good PR practice: film a counter documentary showing it's lies and possibly inviting 3rd parties to visit and participate in the documentary. Censorship by copyright is much faster though.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 26 Apr 2016 @ 10:53am

    No need to go there anymore.

    Ill mark that place off of my list of museums and such to visit.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 26 Apr 2016 @ 11:16am


    Agreed ... and I've been saying this for a long time. Though I would argue that possible dolphin mistreatment videos for the sake of criticizing said alleged mistreatment would probably fall under fair use ... but then who wants to fight all of that when you have a very one sided penalty structure. Which is partly why the penalty structure needs work.

    reply to this | link to this | view in thread ]

  11. icon
    That Anonymous Coward (profile), 26 Apr 2016 @ 11:33am

    We managed to screw up the guy who was going to make claims about us!
    That's fantastic, how did you do it?
    We ignored fair use, and issued a copyright claim. Then the pro-copyright side applauded what we did!
    *video begins to play *
    Can you hear that?
    Oh no, no no no no you managed to invoke her wrath!!!!

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 26 Apr 2016 @ 3:19pm

    Personally I'm waiting on whatever or whoever to try to claim that copyright isn't used for censorship, again. It has this quixotic tilting at windmill feel to it, that you just don't get with today's lesser trolls.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 26 Apr 2016 @ 3:20pm

    If PETA ever gives up their monkey selfie case they might want to take up residence in Vancouver. Sea World in the states is giving up their killer whale program. If you have ever been to a killer whale show you realize just how cold the water these majestic creatures live in, and that the killer whale could jump right out of the tank and crush you like a grape, right there in your seat.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 26 Apr 2016 @ 5:35pm

    Whatever rushing to the defense in 3, 2, 1...

    reply to this | link to this | view in thread ]

  15. identicon
    Zem, 26 Apr 2016 @ 5:37pm

    waiting for peta to now get involved. The aquarium has clearly stolen the copyright from the whales.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 26 Apr 2016 @ 5:44pm

    Re: Different standards

    This can't be repeated enough. IP extremists try to compare IP to real property laws. Imagine if I can make you disconnect your refrigerator simply by arbitrarily claiming it to be mine and then forcing you to prove it's yours, under penalty of perjury, before you can reconnect it. and when it's all said and done I don't get punished because it was simply a mistake. Only in IP la la land is this nonsense possible.

    reply to this | link to this | view in thread ]

  17. icon
    BernardoVerda (profile), 27 Apr 2016 @ 3:59pm

    Any chance this will be appealed?

    I'm having trouble understanding the judge's decision. (And as a Vancouver-ite, I'm embarrassed as well)

    Surely a judge should understand that this is text-book case of Fair Use/Fair Dealing?

    reply to this | link to this | view in thread ]

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