This week the Conservative party began airing a series of ads criticizing the opposition, including three that included short video clips from a CBC program. The CBC has objected to the use of the footage, stating that its material should not be used in partisan advertising and noting that the Conservatives did not ask for permission to use the clip. The Conservative party has responded by arguing that the use is covered by fair dealing and that no permission was needed. According to the Fred DeLorety, the director of communications for the party, “It’s free speech. It’s free use.” To support its position, the Conservatives point to the use of a similar clip by C-SPAN in the United States under its fair use rules. The argument seems to be that if it is fair use in the U.S., surely it is fair use (or dealing) in Canada (Stephen Taylor makes the same point in criticizing the CBC for not having a better grasp of fair use).

The problem with this argument is that is mistakenly presumes that the U.S. fair use provision covers the same ground as Canadian fair dealing. It doesn’t. Indeed, this is precisely why many have argued for a flexible fair dealing provision, which unfortunately is not found in current Copyright Act or in Bill C-32.

There are three key points here. First, the use of the clip should be covered by fair dealing. This is clearly free political speech which is deserving of protection. The Conservatives did not ask for permission to use the clip and they should not have to ask for permission to do so.

Second, it is far from certain that the current fair dealing provision covers this particular use. As I have explained many times in the context of the current reforms to fair dealing, the current provision includes a limited series of categories – research, private study, news reporting, criticism, and review. If the use does not qualify under one of these categories, it can’t be fair dealing (even if the use itself appears fair). The use of these clips might be squeezed into criticism but it is far from certain that a court would accept the argument. In the U.S. (and other countries such as Israel and the Philippines), there is no need make these arguments since fair use is flexible and can cover any potential use. Canada should have a flexible fair dealing provision – one that allows for the inclusion of political speech, parody, satire, education, and innovation – yet the government rejected that recommendation with its more narrow approach in C-32. That choice has real world consequences such that legitimate speech may require permission (that can be denied) first.

Third, Bill C-32 actually makes the situation even worse with the inclusion of the digital lock provisions. While these particular clips may not have been protected by a digital lock, similar footage found on DVDs that do contain a digital lock would face a new legal restriction if the current bill becomes law. In fact, even if the use of the clip can be made to fit within fair dealing, if the clip was protected by a lock, an attempt to circumvent the lock – even for the legitimate free speech use – would likely still be an infringement under Bill C-32.

This is not the first time the restrictive nature of fair dealing in Canada has had political speech consequences. I wrote about the issue in 2007, noting the restrictive rules for remix political videos. The obvious, much needed solution is a flexible fair dealing provision that ensures that the free speech rights of Canadians are not unduly restricted by copyright law. Sadly, the current Bill C-32 may actually make the situation worse with the digital lock rules and does little to recognize the crucial link between fair dealing and free speech.