Last night I posted on reports that the Canadian government is considering a new copyright exception for political advertising. While many have been harshly critical of the plans, I’ve noted that political speech is critically important and that copyright law should not be used to stifle it. My post argues that the law may already cover some of the uses and that if changes are needed, a better approach would be to adopt a fair use provision in Canada.

I have now obtained a copy of the document that was presented by the Minister of Canadian Heritage. The document is obviously consistent with the media reports, but provides significantly more detail and raises several additional questions and concerns.

First, the proposal is very narrow. It would only apply to political parties, politicians, candidates, and their agents. The creation of an exception that only allows a select few to benefit is not a provision that can be defended on freedom of political speech grounds. We are all entitled to exercise our political speech rights. A new exception that guards against copyright stifling such speech should apply to all.

Second, there are many exclusions from the content that qualifies for the exception. It does not apply to documentaries, fictional works, and most music or photographs. Moreover, it cannot be used for fundraising purposes and moral rights still apply (though most journalists may have waived their moral rights and corporations don’t hold such rights). Ironically, the government acknowledges that news reports that under a digital lock could not be circumvented under the provision, demonstrating how the overbroad digital lock rules contained in the last copyright bill negatively affect speech rights.

Third, the document anticipates the likely reactions, ranging from anger from news organizations to users seeking a broader approach. With respect to the news organization reaction, it is worth remembering that those organizations rely on copyright exceptions everyday. For example, the CBC ombuds last year rejected a complaint on the use of copyright works without permission on fair dealing grounds.

At this stage, it is unclear whether the proposal will be included in an omnibus budget bill. If it is, there will be legitimate criticisms about the process and the substance of a proposal that privileges the free speech rights of politicians and political parties over millions of Canadians.