The Weaponizing of Moral Rights in Copyright - CBC v. The Conservative Party of Canada

By: Elias Borges, patent & trademark lawyer.
The CBC is commencing a legal action against the Conservative Party of Canada (CPC) over what it claims is a violation of the moral rights of reporter John Paul Tasker and news anchor Rosemary Barton. It is quite likely the CBC does not realize that it is about to open a pandora's box which could reduce our freedoms if the demons contained within said box are released. The CBC might, by it's legal action, be unleashing an age of weaponized moral rights upon us where any owner of copyright can restrain the freedom of copyright licensees everywhere and significantly reduce our freedom of speech.

At issue in the case is the CPC's use of excerpts from a CBC broadcast in the CPC's website and in various tweets by the CPC. These excerpts were taken from a televised debate between the leaders of Canada's various federal party competing in the upcoming federal election. The CBC is asking for an injunction demanding the CPC remove the offending material and a declaration that the CPC infringed on the moral rights of Tasker and Barton.

Setting aside the timing of this lawsuit and the possible politics of the CBC's decision to bring the suit in the first place, the first thing that is striking about this case is the presumed availability of the fair dealing defense. Section 29 of the Copyright Act sets out that fair dealing in a work (i.e. copying portions of the work) for the purpose of research, private study, education, parody or satire does not infringe copyright. More to the point, section 29 reads:

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:

  • (a) the source; and

  • (b) if given in the source, the name of the
    • (I) author, in the case of a work,
    • (ii) performer, in the case of a performer’s performance,
    • (iii) maker, in the case of a sound recording, or
    • (iv) broadcaster, in the case of a communication signal.”

Unfortunately, sections 29 and 29.1 deal specifically with infringement of copyright rather than moral rights. For moral rights, we have to turn to section 14 of the Copyright Act.

14.1 (1) The author of a work has, subject to section 28.2, the right to the integrity of the work and, in connection with an act mentioned in section 3, the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.

(2) Moral rights may not be assigned but may be waived in whole or in part.”

While moral rights cannot be assigned from a creator/author to the copyright owner (say from news reporters to the broadcaster), the Copyright Act specifically states that the assignee can invoke those moral rights if they wish:

(4) Where a waiver of any moral right is made in favour of an owner or a licensee of copyright, it may be invoked by any person authorized by the owner or licensee to use the work, unless there is an indication to the contrary in the waiver.”

As to what would trigger the moral rights, the Copyright Act provides the following guidance:

28.1 Any act or omission that is contrary to any of the moral rights of the author of a work or of the performer of a performer’s performance is, in the absence of the author’s or performer’s consent, an infringement of those rights.

28.2 (1) The author’s or performer’s right to the integrity of a work or performer’s performance is infringed only if the work or the performance is, to the prejudice of its author’s or performer’s honour or reputation,

  • (a) distorted, mutilated or otherwise modified; or

  • (b) used in association with a product, service, cause or institution.” (Note the added emphasis.)

As we can see, section 14.1 gives the creator/author of a work “moral rights” in that work, meaning the right to be associated with the work and the right to the integrity of the work. These rights survive assignment of copyright or sale of the work. In the famous case of Snow v. Eaton Centre Ltd, the Canadian sculptor Michael Snow (who created the flock of Canada Geese sculpture Flight Stop) won an injunction against Eaton Centre Ltd. for their defacement of his work (tying bows to the sculpture). In a much different case,  Prise de Parole Inc. v. Guerin, Editeur Ltee the court held that copying sections of a work, even if the order was changed, does not represent a distortion, mutilation or modification of the work and the moral rights of the author was not violated.

In the present case, the CBC cannot succeed by arguing that the editing/cutting of the original work is an infringement of the moral rights of the artists/authors involved; however, they might argue that the CPC's use of the material in political advertising would trigger section 28.2(1)(b) of the Act. This is an interesting argument. The CBC would have to argue that the association with the CPC would bring prejudice to the author's/performer's honour or reputation. That latter test is, I think, a slightly higher hurdle to jump. At first blush, there does not appear to be anything particularly dishonorable or diluting of reputation to be associated with a mainstream political party and it's election campaign. However, when dealing with the field of journalism, where political bias (or at least, the wrong type of political bias) is considered improper, then perhaps there is indeed a dilution of reputation if a journalist is associated with a particular political party or campaign. Indeed, I think a convincing argument can be made that the CPC's use of excerpts from the CBC broadcasts could be viewed as triggering section 28.2(1)(b) because it might indeed dilute the reputations of Tasker and Barton among certain portions of their desired audience.

One would normally presume that the fair dealing provisions of the copyright act (section 29.1 above) would excuse the CPC's actions since the use of the material falls within the sorts of acts which are protected from copyright infringement. But does the fair dealing provision (s. 29.1) apply to moral rights? I am unaware of any litigation on that specific point and previous cases dealing with moral rights don't appear to raise that issue. Moreover, there is a clear distinction made in the Copyright Act between copyright infringement and the infringement of moral rights. The fact that moral rights cannot be assigned and must instead be waived necessarily means, in my opinion, that there is an irreconcilable difference between the two. Separate sections of the act deal with ownership of copyright rights and moral rights. Separate sections deal with the length of time copyright and moral rights can exist, and separate sections (s. 27 and s. 28 respectively) deal with when/how copyright and moral rights can be infringed. Copyright infringement is, by the operation of the statute, a very different thing than the infringement of moral rights. Therefore, section 29.1, which is specific to copyright infringement only, cannot apply to moral rights because the infringement of moral rights are not copyright infringement. Indeed, the Copyright Act seems to have no fair dealing provisions with respect to the infringement of moral rights at all. Was that omission deliberate or unintentional? As I discuss below, I think it was unintentional, but, to paraphrase the immortal words of Julius Caesar crossing the Rubicon, the legislation has been drafted and it has received royal assent. There is no fair dealing in moral rights.

I have done a lot of thinking and reading on the nexus between “moral rights” and “fair dealing” and have come to the general conclusion that excluding moral rights from the doctrine of fair dealing poses a serious threat to the commercial exploitation of copyright and is a dangerous threat to our fundamental freedom of speech. There is enormous profitable and beneficial enterprise which is the direct result of the licensing of copyright. Literally tens of billions of dollars in economic activity are generated annually in Canada from the sale of music, movies, software, news, entertainment, books, magazines, newspapers and information services. All of this enterprise is premised on the notion that the people who “purchase” the material by taking copyright licenses for the material will not later be restrained from using the material by the copyright “owner”. The overzealous use of moral rights have the potential to disrupt that enterprise. This potential conflict between copyright licensing and moral rights is one of the reasons the United States has resisted the incorporation of moral rights into United States copyright law.

We have already discussed one case where moral rights of an artist (Michael Snow) was able to restrain how The Eaton Center Ltd. could use a work which they purchased from Mr. Snow. Let us consider other, hypothetical cases, where moral rights can be used to limit the exercise of copyrighted works and potentially free speech. Consider a photographer who's image is sold/licensed to an image reseller who licenses use of the image for commercial use. A racist organization licenses the image to produce an offensive meme which is displayed on their website. The artist is offended that her image is being used in this way and the image reseller enforces the artist's moral rights against the racist organization because her work is being associated with them and that results in a dilution of her reputation. Doubtless few would disagree with the application of moral rights in this hypothetical case; however, consider now a computer programmer who creates important code. That code is incorporated by a software company into smart phones which are in turn sold to many people, including members of the same racist organization. Should the software company be able to restrain the use of the programmer's code by racists if they feel the programmer's moral rights have been infringed? What if instead of being a racist organization, we are dealing with a political organization whom the programmer/software company strongly disagrees with? In the age when private and public enterprises cared little for enforcing “morality”, moral rights were not a serious consideration because they would rarely be invoked (indeed litigation relating to moral rights is extremely rare). However, we are now entering an age where an increasing number of private/public enterprises are taking active political/moral stances on a wide variety of issues. Moral rights may be the tool by which overzealous individuals/companies can unduly restrain the actions of those they oppose or disagree with.

The case of CBC v. CPC as it relates to moral rights might be the thin edge of the wedge here. My reading of the relevant legislation tells me that the CBC's arguments have merit – their arguments based on moral rights are not trivial. They might very well succeed in restraining the CPC (or any other political group) from using portions of their broadcast even where use of those portions would be clearly protected from copyright infringement by the fair dealing provisions. This could represent a significant restraint on the freedom of speech enjoyed by Canadians. Politicians and citizens alike rely on the media to distribute and acquire information useful to all of us. The freedom to use images and excerpts from broadcasts and news publications is a powerful means by which citizens and politicians alike can hold their leaders accountable. If the CBC is successful (and I suspect they shall be) that freedom could soon be at the mercy of the political whims (and biases) of the media organizations involved. More alarmingly, this weaponized use of moral rights can spread to enterprises other than news organizations. Even the very software we all take for granted may someday be subjected to limitations based on the “moral inclinations” of their creators.

In conclusion, the issues raise by CBC v. CPC are worrisome. There appears to be a serious gap in the Copyright Act, a gap which allows restraint of copying/use of a work which falls within the fair dealing provisions. The solution to this potential problem is an amendment of the Copyright Act to extend the protections provided in sections 29 and 29.1 to cover moral rights as well as copyright infringement. Alternatively, subsection 28.2(a)(b) of the Copyright Act should be repealed. Indeed, it might be arguable that the subsection might be a violation of the Canadian Charter of Rights and freedoms for it's potential limiting of our constitutionally guaranteed right to freedom of expression. The latter approach is best explored by lawyers better versed in constitutional law than I.

Image by OpenClipart-Vectors from Pixabay