Copyright law amendments for political advertising (& what that has to do with video game law)

 

This is an interview I gave to Andrew Chang of CBC News at 5 on Thursday, October 9, 2014. It is on the subject of possible (not yet proposed) amendments to the Copyright Act which would create a “fair dealing” exception in favour of political advertising. I basically go through the various reasons why this may not be such a great idea. The core argument does hit on a bit of a recurring theme of this course. That is the status of copyright law in a digital age where “using online stuff” (if you can forgive me for putting it so crassly) has become integral to how we communicate with each other in a free and democratic society. Its analogue is modding/gaming as a form of communal creative expression. As you will see my objection is really only to the double standard inherent in the government wanting to pass such legislation. Creating an exception for any narrow and privileged group seems objectionable. The problem exists of user rights that are too narrow definitely exists, as the desire for these possible amendments makes clear. Thinking of depriving the majority of Canadians of needed rights while protecting a privileged class of user is the obvious and unfortunate irony.

Besides, what happens if something like this actually goes through – do online curators and creators become political parties just to be safe? 😉 Silly stuff indeed.

The best piece on all this, which as you will see I essentially adopted (without crediting – my bad in the spur of the moment – though I did credit in the pre-interview) is that of Professor Michael Geist. You can find it here: http://www.michaelgeist.ca/2014/10/isnt-fair-dealing-enough-government-considering-copyright-exception-cover-political-advertising/

Reactions/counter-arguments?

Thanks to Tina Lovgreen of CBC for making the interview available.

jon

4 responses to “Copyright law amendments for political advertising (& what that has to do with video game law)”

  1. eduj

    Interesting interview. I’m particularly attracted to the Constitutional argument, and I’m interested to see what you all think about the merits of a Constitutional challenge? I know this is a hypothetical, but would you think that this would fall within the core of 2(b), and how do you think things would play out in the Oakes analysis (if it even gets to that point)?

  2. zhefei

    Did a quick research on Oakes, and i think that the crux lies around the “proportionality test” which requires the invoking party to show (took this off wikipedia):

    “First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective.
    Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question.
    Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”.”

    Prima Facie, seems to me that it would deprive all other users of their “right to use internet stuff”!

  3. zhefei

    The famous Oakes test developed by the Court hinges on a two step test: (i) it must be “an objective related to concerns which are pressing and substantial in a free and democratic society”, and (ii) it must be shown “that the means chosen are reasonable and demonstrably justified”.

    The proportionality requirement in (ii) seems to be the issue here when it comes to the proposed amendments:

    “First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”.”

    On first reading, i’m inclined to feel that the amendments are in violation of the Charter (right or freedom) because of the very nature of a free and democratic society where such privileged protection would certainly raise eye browns and limit majority / constitutional rights! Hence i agree with eduj that should things fall to a Constitutional argument, it would likely resolve in favour of the majority of Canadians in preserving their much needed rights of freedom and expression and creativity.

  4. Netent

    Hi Jon, thanks for the write up.

    With evolving technology and different uses, there are bound to be upcoming laws that we always will disagree with… I know this because I run https://www.netentfollower.com and one day some kind of law will catch up to owning such a gaming/gambling related website.

    This was an interesting video too. Thanks!