Federal Court docket liberally interprets sure Copyright Act necessities: IP lawyers

The Federal Court found that the respondents’ use of CBC’s copyrighted material was for an allowable purpose and amounted to fair dealing. The respondents used the material to criticize the ideas and actions of Trudeau and of the Liberal Party and to mount a political campaign that sought to secure votes to form a government, said the court.

The court also weighed the six factors found in Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36 (CanLII), [2012] 2 SCR 326 and determined that the use of the copyrighted material overall supported a finding of fairness.

The CBC ruling, as it stands, provides that a dealing can qualify as criticism if the video clip used supports the critical thesis of the work in which the user embeds the clip, which means that the user no longer needs to critically comment on the clip itself, whereas traditionally, a critical analysis of the content of the clip was required before the court would even consider whether the dealing was fair, Zener and Winegust told Canadian Lawyer.

The CBC decision also offered a large and liberal interpretation to the technical source attribution requirements in the Copyright Act in the matters of fair dealing and of news reporting when it found that it was sufficient for CBC’s logo to be embedded and visible in the clips, the two IP lawyers say.

The CBC ruling, alongside the Ontario court’s 2020 decision in the Wiseau case, which also broadly interpreted what can be considered news reporting to include documentary films, demonstrates an emerging trend of courts willing to find fair dealing where the content has been repurposed in a manner that contains a public interest component, say Zener and Winegust.

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