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:
- The Vancouver Aquarium did not need copyright to produce videos to put on its website. It made those videos to help market the aquarium.
- The Vancouver Aquarium did not sue Charbonneau because they were concerned about copyright.
- The Vancouver Aquarium did not sue Charbonneau because they were protecting the vast licensing market for the marketing videos they put on their website.
- 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.