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Rights to use existing copyrighted works for purposes like criticism and news reporting are built into the structure of copyright law. The Supreme Court has described these limits to copyright protection as not mere loopholes but user rights, which must be given a “large and liberal interpretation.”

The Documentary Organization of Canada has issued guidelines stating that the use of film clips, quotations or interviews to criticize the views expressed in them is generally permitted under the “fair dealing” exception to copyright infringement, if sources are appropriately credited (as they are in Charbonneau’s film). This analysis is in line with the case law and reflects accepted industry practices.

Like the U.S. Ag-gag laws, the Aquarium’s lawsuit appeals to what may be a superficially plausible idea: its critics should not be allowed to trespass on its own “property” to reveal its secrets or speak out against it. On more than cursory examination, however, the idea that private property rights can suppress public debate is disturbing and undemocratic.

And Aqua-gag is perhaps even more outrageous than Ag-gag, because the “property” involved is an inherently limited kind of property. Copyright is a creation of statute that only exists because it serves the public interest. It is not private property in the same way that a home or a piece of land is.

The Canadian public cares about how animals are treated and wants to engage in informed discussions about how a civilized society ought to behave toward them. The Vancouver Aquarium’s attempt to use copyright law to stop that discussion from happening is legally untenable, and simply wrong.

Katie Sykes is an assistant professor in the Faculty of Law at Thompson Rivers University.