Reuse of Clips from a CBC Broadcast, in Online Ads, Held Fair Dealing

The Federal Court (la «F.C.») recently gave us a copyright decision worth mentioning in Canadian Broadcasting Corporation v. Conservative Party of Canada (2021 FC 425), a judgment that provides us with a rare interpretation and application of the exception relating to criticism.

As one may remember, the Copyright Act (the “Act”) contains a series of exceptions allowing reuse of copyrighted content to certain ends that fall under the category of what the act consider “Fair Dealing”. One of those (described in Section 29.1 of the Act) allows using works for purposes of criticism, a specific exception that the F.C. had the opportunity to interpret in the recent CBC case.

This decision stems from a lawsuit by the CBC against the Conservative Party of Canada (the “CPP”) further to the use of video segments from a political debate (originally aired by the CBC) in online advertising run in 2019, without permission from the CBC. According to the CPP, given that the goal of the political ads at issue was to criticize the Prime Minister, the use of portions of CBC broadcasts should be protected as fair dealing. Contrary to the usual attempt to invoke the exception at issue, the criticism in this case was not a criticism of the work being copied (the broadcast itself) but rather criticism of an individual shown on-screen and the ideas and views he expressed. So, the question stood: could such criticism qualify under Section 29.1 of the Act so as to protect the CPP from an infringement claim?

Upon examining the issue, the F.C. had to agree that the goal of the ads at issue was clearly to criticize the Prime-Minister and his views and decisions. Given this, the F.C. concludes we are indeed in a situation where copyrighted materials was used for purposes of criticism. Given the treatment of fair dealing by the Supreme Court of Canada (and others) over the past few years, such exceptions should be interpreted broadly, so as to balance adequately the rights of creators with those of users.

According to the F.C., the exception relating to criticism may of course extend to the works that are reproduced but may also apply in other cases, including criticism of ideas, values and anything that has been expressed in the works that were reused. In the case at hand, portions of political debates during which the Prime-Minister expressed certain views could thus be reused for purposes of criticizing him, his ideas and his handling of certain issues. At law, this was clearly criticism.

Doing so, the F.C. sets aside a common interpretation of Section 29.1 of the Act, namely that this exception was included in the Act to solely allow criticizing works, including for example by literary critics. On the contrary, according to the F.C., nothing in this provision of the Act restricts what the criticism at issue can relate to. The article at issue simply allows reuse for purposes of criticism, without specifying what the criticism must relate to.

After holding this was indeed a case of reuse for purposes of criticism, the court then applied the usual test to determine whether reuse of the materials at issue in this case has been “fair”, agreeing it has been. Given the fair dealing defense applied, the F.C. rejected the infringement proceedings against the C.P.C.

The F.C. decision at issue represents yet one more example of a trend, during the last few years, as courts gradually broaden the meaning of fair dealing exceptions under Canadian copyright law.

So, What the Hell is a NFT, Legally?

As you may already know, the Internet has been abuzz recently with “NFT“s, or Non-Fungible Tokens, an offshoot of blockchain technology, a form of distributed ledger. Basically, an NFT is an electronic token (an asset, of sorts) that been created and placed on a blockchain , and which is capable of containing certain information and passing from one buyer to the next.

Recently, artists realized that they could personally create and authenticate tokens but associating them with some of their works (think copyright), in essence creating digital tidbits capable of being bought, sold and exchanged, over time. This, couple with a limited supply, created an instant collectors’ market of NFT enthusiasts and who are now investing in upcoming artists, in a manner that is strangely reminiscent of Renaissance patrons of the arts. This allows artists to make some money and collectors to… well… collect.

The numerous stories I’ve been seeing online about this lead me to reflect as to what exactly these little electronic tidbits are, legally I mean. Are people buying art, perhaps electronic copies, or something else?

Legally, the first thing we should note is that this little trend does NOT involve people dealing or trading art (or I.P.) online. No real transfer of rights (intellectual or otherwise) gets created or transferred when buying an NFT-type electronic token, not really anyway. In effect, what will happen upon any of these purchases is that a transaction will be recorded on the blockchain at issue, showing you as the “owner” of such and such token. Period.

Does this grant you a real right of ownership to that intangible? Maybe, maybe not. But one thing for sure, what these transactions do NOT do, is transferring title to any intellectual property, such as the copyrights in this drawing or this photo, for example. So, contrary to some may be thinking reading stories about the NFT-craze, people are not buying the I.P. to copyrighted works using this scheme.

Sure, people may be buying (using the term loosely) something that was created by Mr. X, and then get bragging-rights about it, but little else. Sure the NFT may be one of the few linked to that particular piece of artwork (a music album, for example) but little else. Buying an NFT does NOT get you any real rights to the actual artwork or the I.P. to it.

The truth of it is, at law, we’re not dealing with any asset that can be readily categorized or put in a neat little box here. NFTs are rather a pure creation of the electronic age, before any rights or legislation applies to them. In effect, those who create NFTs decide what little rights (let’s call them that) they are deciding with accompany their offering of NFTs. In practice, this will usually translate to fairly little, for example a personal right (read license) to display a piece of artwork for one’s personal pleasure, etc.

So, if your reflex upon reading this is to ask what a NFT is good for, the honest answer may be: to fill an artist’s pockets. That said, don’t get me wrong, NFTs are a cool idea and I’m all for encouraging budding artists with a modicum of intermediaries who’ll profit in between; let’s just be clear as to what little legal effects are created when buying one of these tokens. At least for now anyway, we’re not dealing with anything that has inherent great value here, aside from what other collectors may be after that is.

Corsairs and Cyber Pirates: Should We Consider Bringing Back Letters of Marque?

The Wall Street Journal recently published an article entitled A Maritime Solution for Cyber Piracy which grabbed my attention. The author, a lawyer who used to work for the Air Force, suggests we may want to look into the concept of letters of marque so as to shore-up the U.S.’s cyber-defences.

Such “letters of marque” (also called letters of permission or of commission) involved a license (permission) granted by the U.S. government empowering certain citizens or groups to participate directly to the defence of commerce or of the nation itself. Though common a few hundred years ago in Europe (and later around America), such permission largely disappeared in the 19th century, as countries acquired navies capable of policing sea lanes without having to resort of privateers to do so. For a time, though, the idea of “privateers” (or “corsairs”) sinking or capturing enemy (or pirate) ships in exchange for reward was fairly commonplace. Faced with security issues they could not deal with themselves, many countries compromised by asking private parties to do what they could not, often with the promise of a bounty or rewards to get the job done.

Recent high-profile cybersecurity incidents seem to indicate we may collectively be faced with a situation somewhat akin to that faced by the U.S. in the 19th century, at a time when the government was unable to itself deal with the nation’s security. Could it be that rampant cybercrime has brought about a similar situation? An argument to that effect can certainly be made.

Interestingly enough, the fact that the NSA is prohibited from watching domestic networks too closely may militate in favour of this idea, so as to fill the gap, so to speak. If the main watchdog cannot act once cyberpirates have penetrated targets in America, one might argue we need help that private parties may be especially well positioned to provide.

Given the growing threat of cyberpiracy, including to some important infrastructure (such as the pipeline recently shut down by a ransomware attack), the author argues that we may want to start looking at the concept of letters of marque. Given the apparent inability of the U.S. government to stop the threat, one might argue it may be time to try and incentive private citizens and businesses to report and go after cybercriminals.

Interesting idea, no doubt. One has to admit we definitely seem to be in need of a new set of solutions if we hope to manage to tackle the issues relating to cybersecurity in a proactive manner. Though I’m not sure how this may work in practice, I think it may indeed be time to start incentivizing private parties to help our collective efforts to thwart cybercriminals.