Despite the public attention that has been directed at copyright law recently, the issues surrounding the Charter right to freedom of expression have been absent from the public discourse.  The matter was litigated last fall when the Supreme Court of British Columbia cited the Federal Court’s dubious Michelin decision to summarily cast aside any Charter defences to copyright infringement. I’m talking about the decision in Canwest Mediaworks Publications v. Horizon Publications, 2008 BCSC 1609, and I am surprised that it drew so little public attention.
In this case, political activists created and distributed free of charge a satire of the Vancouver Sun newspaper in an attempt to draw attention to the alleged editorial bias of the Sun’s parent company, Canwest Mediaworks. Canwest is responsible for 80% of the newspapers sold in B.C., and the freedom of expression issues are fairly obvious with respect to truth-seeking and the marketplace for ideas that a democratic society requires to function properly. Meanwhile, from a policy standpoint, it is difficult to see any benefits that accrue to society by protecting Canwest’s copyright interests in this context, let alone any benefits that would trump the value of the Charter. However the Court saw no merit in the Charter issues.
The decision was appealed but Canwest decided not to pursue the matter. While some civil liberty supporters cheered this outcome, the fact that the Canwest decision was not reevaluated means that both Michelin and Canwest represent the current state of copyright law in Canada with respect to the Charter.
Canadian legal scholars have yet to weigh in on Canwest, but they have been unanimous in their criticism of Michelin. According to Vaver, “the … view in the Michelin case, with its disturbing assertion that the freedom of expression guarantee in the Charter of Rights and Freedoms can never override copyright ‘property’ should be rejected.†(David Vaver, Copyright Law ( Toronto: Irwin Law, 2000) at 195). Similar sentiments have been expressed by David Fewer, Jane Baley and Karen Lowe.
I respectfully agree. Copyright law is necessary to facilitate a business model that is widely accepted in our society but it affects the ability of various parties to communicate and is therefore likely to affect Charter rights from time to time. How absurd to suggest that copyright law is immune to Charter scrutiny.
Yet, there are two concurring cases as precedents, and typically the loser pays the winner’s costs, so it is unlikely that these decisions will be overruled in the foreseeable future.
Those who are interested are encouraged to read the following:
David Fewer, “ Constitutionalizing Copyright: Freedom of Expression and the Limits of Copyright in Canada†(1997) 55 U. Toronto Fac. L. Rev. 175.
Jane Bailey “Deflating the Michelin Man: Protecting Users’ Rights in the Canadian Copyright Reform Process†in Michael Geist, Ed., In The Public Interest: The Future of Canadian Copyright Law (Toronto, Irwin Law 2005).
Karen Lowe “Shushing The New Aesthetic Vocabulary: Appropriation Art Under the Canadian Copyright Regime†(2008) 17 Dalhousie J. Leg. Stud. 99.
The Michelin case makes for interesting reading as well: Compagnie Générale des Établissements Michelin-Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (T.D.) (1996), [1997] 2 F.C. 306.
NOTE: Shortly after publishing this note I learned that the appeal was not dropped. Bloggers beware: there are a lot of news articles on-line and many are not current. Some have the facts wrong. It is easy to be misinformed. As well, due to a computer glitch, the original post was deleted so this post is a ‘resurrection’ of sorts. Unfortunately the insightful comments by Pulat Yunusov and David Fewer were lost in the process. I am very disappointed … but life goes on.
I have also recently written on this subject in the July (2009) issue of the Oxford Journal of Intellectual Property Law & Practice (“Parody as fair dealing in Canada: a guide for lawyers and judges”). See here – http://jiplp.oxfordjournals.org/cgi/content/abstract/4/7/468
“Legal context: This article examines the defence of parody against allegations of copyright infringement. Earlier jurisprudence from the lower courts held that parody was not a form of criticism, and therefore lay beyond the bounds of the fair dealing provisions of Canada’s Copyright Act. Recent decisions, also from the lower courts, continue to reinforce this notion and deny the existence of parody as a form of fair dealing.
Key points: Given the Supreme Court of Canada’s unanimous ruling in CCH Canadian Ltd v Law Society of Upper Canada in 2004, combined with the values of freedom of thought, belief, opinion, and expression enshrined within the Canadian Charter of Rights and Freedoms, it is submitted that parody is undoubtedly a form of fair dealing being, by its very nature, a form of criticism. The statutory requirement that the source of the underlying work being criticized be ‘mentioned’ is also satisfied if one accepts that parodies implicitly conjure the source material. Novel issues surrounding the possible moral rights infringement of a parodied work are also examined.
Practical significance: This paper since it sets out an analytical framework for viewing parody as a form of criticism, utilizing the clear guidance provided by the Chief Justice in CCH Canadian Ltd v Law Society of Upper Canada and the values enshrined in the Canadian Charter of Rights and Freedoms. These primary materials should signal that earlier lower court jurisprudence on parodies is no longer ‘good law’. The issue of moral rights waivers and their utility for litigating parodies is also examined. A more nuanced approach to moral rights waivers is offered as part of an effective IP management and litigation strategy.”