Proposed amendments to Canada’s copyright law threaten press freedom

Friday, October 10, 2014
Canada's Prime Minister Stephen Harper shakes hands with Heritage Minister Shelly Glover after she was sworn in during a ceremony at Rideau Hall in Ottawa July 15, 2013. REUTERS/Chris Wattie
CJFE is seriously concerned about the recently proposed amendments to Canada’s copyright law. The proposed changes to allow news footage to be used in political advertisements present a serious threat to press freedom and the integrity of Canadian news media. CJFE has five major concerns with these proposed amendments:
  • 1. This proposal could result in media outlets appearing biased and unprofessional. Objectivity and impartiality are hallmarks of quality journalism and media outlets. Assuming this exception would follow the form of some of the other "fair dealing" sections of the Copyright Act, this proposed exception could require that the source and author be identified, so that a media outlet would be identified as having supplied some of or all of the content for a partisan political ad. For example, to be considered "fair dealing" in news reporting, the source and author/performer/maker/broadcaster must be identified. This could lead to media outlets being closely tied to partisan messaging that they did not endorse.
  • 2. There is a distinct danger that the use of "news" content in political advertisements could result in news clips and journalistic reports being taken and used out of context. Intentionally or not, partisan advertisers could falsely emphasize one component of a news report over others, thus misrepresenting the original material and putting the reporter/media outlet – and the very subject of and the participants in the news report – in a false light. For example, this could result in suggesting that media figures are critical of, or engaged in, ridiculing a candidate or part of the platform of a political party. This could again lead to the media’s integrity being questioned by the public.
  • 3. The proposal will increase confusion and tension between media and political advertisers. Apparently this proposal envisages that, in addition to having no control over how their content is used, media outlets will also have less control over the ads they air. Although the proposal purports to remove one of the reasons that the media currently put forward for not running ads – that ads contain their news content without permission – this would not prevent media outlets from exercising their discretion about whether to run the ad. Even with these new amendments, a media outlet could still object on the basis that the ad places the media outlet in a false light and/or interferes with the moral rights of an individual employed by the broadcaster. For example, if a media outlet concludes that an ad will inaccurately give the impression that the media outlet was critical of or ridiculing a candidate or a party's position, it could still refuse to run the ad. However, as the proposal does not explicitly guarantee media outlets such protective measures, these proposed amendments will only lead to greater uncertainty and friction between media and political advertisers.
  • 4. The proposal intends that the proposed exception be narrow, and to be available to "political actors," which are listed as being "publicly elected officials, party leaders, and those who intend to seek such positions; and registered political parties." It would appear that the government does not propose this exception should be extended to political speech made by civil society organizations, citizens and others not directly involved in seeking election. If this amendment is about the promotion of "political speech," it should apply to all political speech, by whoever made – not just those seeking election.
  • 5. The government proposal advocates this amendment to the Copyright Act be incorporated into the Budget Implementation Act, and enter into force upon Royal assent. This turns this amendment into a confidence vote, as defeating a budget would result in the government falling. Although there is no danger of the majority government falling as a result of this proposed amendment, it does elevate this proposed amendment to inappropriate heights. It is clear that the real reason for attaching this amendment to the Budget Implementation Act is to prevent opening the Copyright Act before the 2017 Parliamentary review. In failing to open the Copyright Act to amend it for this purpose, it allows the government to avoid pressures to address other copyright issues at the same time. Amending the Act in this way is serving government interests without considering the needs of the Canadian public, and the changes of benefit to the Copyright Act overall.
In summation, if passed into law this amendment would result in more disputes between the media and the political parties, less certainty about what and when media outlets can refuse to publish or broadcast ads, and would detract from the media's appearance of impartiality; each of these results would degrade the public’s confidence in the media. CJFE strongly urges the federal government to reject this proposal and continue to protect the independence of Canadian media.

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