Court dismisses CBC copyright infringement lawsuit against Conservative Party

A lawsuit launched by the CBC against the Conservative Party of Canada in the final days of the 2019 federal election accusing the party of copyright infringement for using the broadcaster's footage in an online ad and tweets has been dismissed by a federal court.

In his written decision released Thursday, Federal Court Justice Michael Phelan found that the use of such material fell under "fair dealing" and there was "no objective evidence of the likelihood of any reputational damage" to the CBC.

"There was no evidence presented that a broadcaster's segment disclosed in a partisan setting reflected adversely on the broadcaster," Phelan wrote.

He noted that CBC's concern for neutrality was reasonable and that there may be situations in the future where the manner of use and distribution of CBC material may adversely affect the CBC.

'Not the case here'

"However, that is not the case here. Fear and speculation cannot ground a finding of unfairness in this factor," he wrote. 

The CBC had been seeking not monetary compensation but a "declaration as to CBC's rights and CPC's breach of them."

At issue was a video titled "Look at What We've Done," published around Oct. 4 on a Conservative Party website (notasadvertised.ca), a Facebook page and a YouTube page.

The video included footage from CBC's The National and Power & Politics. It also included footage from CTV News, Citytv and Global News.

The Conservative Party also published four tweets from the 2019 federal election leaders' debate, which was broadcast on 15 different online platforms and by 10 different TV networks, including the CBC. 

In its application, CBC/Radio-Canada claimed it held the copyright on all those clips and that the Conservative Party of Canada had "engaged in the unauthorized use of copyright-protected material."

It also said the clips were "taken out of context and are edited and relied on to make partisan points for the benefit" of the party.

CBC concerned about partisan use of clips

As Phelan noted, the CBC had expressed a concern that its material was being used in a way that "affects its journalistic integrity and damages its reputation for neutrality."

According to court documents, the CBC had sent five letters to the Conservative Party threatening injunctive relief if the ad and tweets were not removed. The party did remove the ad and tweets but the broadcaster proceeded with legal action, saying the Conservative Party had provided no assurance that it wouldn't happen again.

Initially, the CBC's legal documents listed CBC's Rosemary Barton — then co-host of The National — and parliamentary bureau reporter John Paul Tasker as applicants in the filing, along with the CBC.

Both Barton and Tasker had appeared in the clips used in the advertisement. Days later, however, the CBC said in a statement that it would remove their names from the lawsuit and that "CBC/Radio Canada was the driver of this process, not the journalists."

At the time, the Conservative Party responded by expressing "grave concern that this decision was made on the eve of an election that CBC is to be covering fairly and objectively,"

It also used the lawsuit as a fundraising pitch, arguing in an email to supporters that CBC "footage should be used by those who fund them."

Under the Copyright Act of Canada, the use of some material is protected from copyright infringement action under "fair dealing" if it's used for certain purposes, including research, satire, criticism and review.

'An allowable purpose'

Phelan found that the Conservative Party had taken a substantial part of CBC's copyrighted work but that "it was for an allowable purpose — that of criticism at the very least."

"The purpose was one of engaging in the democratic process. Even a purpose of raising funds in this context is part of an election process," Phelan wrote.

"While a court must be cautious in wrapping the analysis too much in the flag of democracy — where rhetoric overshadows reason — the evidence is that the use of the CBC Works was for this legitimate political purpose.

"As such, this factor points to fairness."

Conservative Party welcomes ruling

Janet Fryday Dorey, the executive director of the Conservative Party of Canada, said in a statement that the party welcomed the decision and called it a "clear win for democracy."

"It will serve to enhance the freedom of political expression — a significant component of a healthy democracy," she said.

Dorey said the decision also brings greater clarity for everyone on the relationship between copyright law and political criticism.

Leon Mar, a spokesperson for CBC, said the broadcaster is reviewing the court's decision.

"From the beginning, our objective has been to protect the trust Canadians have in the independence of their public broadcaster," he said in an email.

"We believe that misusing journalistic content and footage out of context in partisan political videos undermines that trust."