Image Conscious

Just heard from Roger Abbott of CBC's Royal Canadian Air Farce who informs me that satirical shows such as his, plus The Rick Mercer Report and This Hour Has 22 Minutes, which also air on the public TV network, are not permitted to use clips from the federal leaders' debates. (Note that no such show airs on CTV nor on Global which are both part of the Broadcasting Consortium.)

Abbott writes:

We've been advised that the agreement between the networks and the political parties "forbids the use of any debate pictures or sound in any program other than news and current affairs".  As a result we couldn't get legal clearance to air the clips.

<SNIP>

From what we can divine, it came up when the consortium-of-networks was negotiating with the consortium-of-parties to streamline the television debates, and one of the party reps brought it up - perhaps as a bargaining chip - that the networks must agree to not release tape to the topical comedy/satire shows.

<SNIP>

As an independent production, we have to carry production insurance, including errors and omissions insurance, so our lawyers and insurers aren't happy if we try to use material for which we can't clear the rights.  Usually, the "fair dealing" or "fair use" laws allow us to use clips without authorization if we're making a satirical point, except when the use of such clips has been specifically prohibited by the originator of the clip.

Could the parties be so touchy about their leaders' images they're too afraid to let the satire shows have some fun with them? Have Canada's satirical shows become that popular and powerful that the political spinmeisters worry that their carefully-crafted campaign plans could unravel just because a ''fake news'' show puts some fake words in the leaders' mouths?

Imagine this kind of edict coming down in the U.S., for example, to prevent, say, the Daily Show with Jon Stewart from mocking the presidential debates. (Come to think of it, the Daily Show could probably lift some of the clips with impunity.)

From a democratic perspective, this is outrageous.

Abbott tells me that, from a program production point of view, he's not that perturbed because the show did a word-for-word re-enactment. Which was easy enough for this crew of impersonators.

As if the first round of leaders' debates weren't self-parodying enough ...

 

If you want to see the relevant clip it's available about 1:22 into this segment here (RealPlayer), here (Windows Media) or here (Quicktime). It airs tonight at 8, and repeats Monday at 7, as a warm-up into the next English-language debate at 8.

 

Comments

[Bill-Muskoka]

I watched the segment this evening and the re-enactment was HILARIOUS!

Go RCAF, RMR, and THH22M!

[Ivan Prokopchuk]

Oh for god's sake. The two programs that almost justify all the money we spend on the CBC and they have to start quibbling about political footage. Yes, where would Jon Stewart be? Where would Saturday Night Live be, especially when it started out? Weekend Updade was/is hilarious, just like the Farce's and 22 Minutes' version.
Putin? Poutine?
Always that Higher Power. "It is quality, it is funny because we say it is."
Those god-awful gremlins, like the ones they use on the Montral Comedy festival, except that this time the gremlins are the political parties.
No wonder all the talent had fled to New York and LA.
It's a miracle that the Farce and 22 Minutes actually thrive in Canada. Maybe that's why they had to go freelance.
Stay freelance. Stay brilliant.
(Even if Rick Mercer's blog absolutely devastated mine in the humour category--may as well be beaten by the best).

[Joe Clark]

Abbott is incorrect. Fair dealing (there *is no* fair use in Canada) is not dependent on permission of the copyright holder. Parody is not exempted specifically in the Copyright Act and usually rests on the "criticism" component of fair dealing. Nonetheless, the copyright holder cannot extinguish that right just by saying so.

In fact, §32.2(1)(e) states that it is not an infringement of copyright "for any person to make or publish, for the purposes of news reporting or news summary, a report of an address of a political nature given at a public meeting." The broadcast coalition can try to claim that their tapes can't be used in a certain context, but that context is explicitly permitted in the legislation. Plus they would never dare sue.

http://laws.justice.gc.ca/en/C-42/text.html#rid-39523

Maybe we could have a discussion about why CBC needs three news parody programs in the first place?

[Peter E. Steinmetz]

Although Joe Clark's take on the fair dealing aspect of Canadian copyright law is correct, his statement that Roger Abbott is incorrect, is itself incorrect. Air Farce concerns itself with complying both with "fair dealing" (one Canadian Copyright Act defense to copyright infringement) as well as to the "fair use" provisions of the US Copyright Act. However, the facts here gave rise first to an issue of contract law and only secondarily to copyright law. The footage is owned by the CBC which, as a condition of gaining access to the leaders and being permitted to tape the debate, agreed with the Political Parties to restrict what CBC could do with the taped performances by agreeing that the tape would not be used for any purpose other than news and current affairs. For the CBC to have licensed or authorized Air Farce to use the tape for a comedy satire show would have put CBC in breach of its agreement with the Parties. For Air Farce to have simply gone ahead and used it without CBC permission in these circumstances would have put Air Farce in breach of its own agreement with CBC and also would have vitiated Air Farce's E & O insurance coverage, notwithstanding the fact that a solid argument exists that the inclusion of the footage in the program would have constituted fair dealing and therefore not be an infringement of the CBC's copyright in the tape. In these circumstances, had any producer (Air Farce, Mercer or 22 Minutes) gone ahead and included the tape footage in their program without authorization, the CBC, as broadcaster in control of the broadcast transmission, could easily have deleted the offending content by flipping the editorial switch and going dark for a few seconds. The broadcaster always has final editorial control over what is broadcast. The real issue, and the solution to it, does not lie as much in the land of legal analysis as it does in the world of principle. We all know why the Political Parties would want to "manage" the images of their leaders in this way. Wouldn't you? The question is why would the CBC agree to this sort of limitation in the first place? To be charitable, I'll bet the full implications of the oversight (or of the decision to target comedy shows if that was the case) never even occurred to the CBC negotiators in the room at the time. They were probably all, you guessed it, news and current affairs types. So here is the really interesting question: Knowing now what the CBC knows about the implications of their agreed limitation of use, will the CBC Executive immediately contact the Political Parties and request that this limitation on the CBC's use of its own footage, paid for with the tax payers' dollar, be waived by the Political Parties and will the CBC publically confirm that it has made that request and publish the response of the Political Parties? And, if not, why not?(Sounds like Question Period doesn't it?)