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Remember how the CBC brought a copyright infringement suit against the Conservative party with about 10 days left to go in the 2019 federal election campaign? We were so young then! The proceeding has not received much attention lately, but it is still underway, and I noticed this week that it has taken some turns while we have been cowering in our dens from a virus.
The CBC claimed back in October that Conservative campaign ads had made improper use of short clips from panel shows and from a party leader’s debate. The allegedly questionable ads were just like any other repulsive political ad of the last 50 years, and the “fair dealing” principle in copyright obviously ought to have the broadest possible latitude in such a situation. But the CBC had the chutzpah to argue that the campaign ads might lead people to think that the corporation was biased in favour of the Conservatives.
Yes, it’s the single funniest legal argument ever made, but the topic is serious. The Conservatives took down the offending clips when the CBC began squawking, but the broadcaster went ahead and filed the copyright application with the Federal Court anyhow, not choosing to wait until after the election.
Michael Geist, the University of Ottawa intellectual property expert, observed at the time that, “Given (the clips’) short duration, appropriate attribution and legitimate use for political expression, the Conservative party has a very strong fair dealing argument.” The professor also noted that the CBC has a history of this sort of behaviour, despite the “public” status it beats us over the head with. Geist supports a definition of intellectual property that would protect the rights of fair-dealing borrowers and remixers. But when it comes to copyright, the law of Canada is catching up to him, not the other way around.
And then there’s the weird part. When the suit was filed, CBC journalists Rosemary Barton and John Paul Tasker were included as co-applicants. Barton is still the primary face of the CBC’s political coverage, and Tasker’s an outstanding reporter who needs friendly sources in every party, so this immediately raised the question of what the hell the pair thought they were doing.
The real question turned out to be: did they consent to being included at all? When the application attracted attention, the CBC’s lawyers put out a cryptic statement, which included these words:
“CBC News journalists Rosemary Barton and John Paul Tasker were named in a legal application filed on Thursday, Oct. 10 by CBC/Radio-Canada because their images and journalism were misused for partisan purposes negatively impacting perceptions of their independence.… To be clear, CBC/Radio Canada was the driver of this process, not the journalists. CBC/Radio Canada named and added the journalists to the application because their images and content were used inappropriately. In order to avoid any confusion about the role of Rosemary Barton and John Paul Tasker we intend to file an amendment to remove their names as applicants.”
The Conservatives were served with the amended application, which presented them and the rest of the universe with a puzzle. The CBC’s own statement, retweeted by Barton, said that the corporation “was the driver of (the) process” and that it was responsible for adding the journalists as parties. (The corporation also seems to have recognized that the consequences of co-applicant status were pretty alarming and dangerous for their own employees.)
In scrambling to take Barton and Tasker off the application, the CBC was arguably doing its courtroom opponent a favour, since the journalists, or somebody using their names, were invoking a separate category of “moral” intellectual property right and making the suit more complicated. But if the CBC’s lawyers perpetrated an abuse of legal procedure by falsely claiming authority to sue on behalf of others, that could factor into the judge’s ultimate costs calculation.
The Conservatives’ lawyers chose to agree to the amendment, but moved to ask for confirmation that Barton and Tasker had authorized their inclusion. The Ontario Rules of Court allow for this under Rule 15.02, but there is nothing analogous in the Federal Court’s rules. However, the Federal Court’s Rule 4 allows “reference to the practice of the superior court of the province to which the subject matter of the proceeding most closely relates.” Lawyers call this the “gap” rule. The CPC asked the case management judge to recognize the existence of a gap in the Federal Court rules, import Ontario Rule 15.02 and compel the CBC to answer “yes” or “no” on the Barton/Tasker issue.
On Aug. 31, that judge, Prothonotary Angela Furlanetto, rejected the Conservatives’ argument and declined to perceive any gap. She was, however, careful not to say that the CBC might not ultimately be in hot water over costs. She merely refused to compel the answer that the Conservatives want at this stage of the game.
A “paper trial” of the CBC’s claim will happen in February, with the evidence based mostly on documents, but lawyers for the Tories will get the chance to cross-examine, and if CBC’s representatives refuse to answer Barton/Tasker questions, there is bound to be more litigious activity of this abstruse, circus-sideshow kind. It’s just a good thing we’re not paying for all this, am I right?
Copyright Postmedia Network Inc., 2020