On the eve of the 2019 federal election, CBC brought an application for copyright infringement against the Conservative Party of Canada. CBC argued that the Conservative Party infringed its copyright by tweeting short excerpts of the official English-language federal leadership debate and by including brief excerpts of CBC news programming in an election advertisement. That election advertisement criticized Prime Minister Justin Trudeau’s first four years in office and drew from news reports and political commentary across all of the major Canadian broadcasters.
On May 13, 2021, Justice Phelan of the Federal Court released his decision, confirming that the Conservative Party did not infringe CBC’s copyright. While the Court found that the excerpts constituted substantial parts of the CBC’s works, it concluded that the uses constituted fair dealing for the purpose of criticism.
In reaching that conclusion, the Court confirmed that the purposes for which fair dealing is allowed under the Copyright Act should be given a large and liberal interpretation and rejected the CBC’s attempt to narrow the allowable purpose to criticism of the work itself. The Court concluded that it is not just the text or composition of a work that may be the object of criticism but also the idea set out in the work and the social or moral implications of those ideas. A party is entitled to criticize not only the literary style, but also the doctrine or philosophy as expounded in the work.
The Court found that criticism was embedded in the use by, for example, juxtaposing a short clip of the Prime Minister asking the viewer to “look at what we’ve done” with news clips that invited unfavourable conclusions about his performance. The tweets also criticized the Prime Minister’s performance, both in office and at the Leaders’ Debate.
Having concluded that the dealing was for an allowable purpose, the Court proceeded to consider whether the dealing was fair. The use of the works for a legitimate political and democratic purpose tended towards fairness, as did the amount of the excerpts used in relation to the works as a whole. The nature of the work and effect of the dealing also tended towards fairness, since CBC news content was clearly designed for public viewing and there was no evidence that using the content in a partisan setting reflected adversely on the broadcaster. Weighing all the factors, the Court concluded that the Conservative Party’s use of the CBC’s works was fair.
The Court dismissed the application with costs to the Conservative Party.
Cassels represented the Conservative Party.