When the Canadian Conservative Party released a raft of attack ads last month against Liberal Party leader Michael Ignatieff, it was the Canadian Broadcasting Corporation (“CBC”) that led the counterattack. Why? In constructing their ads, the Conservative Party used without permission CBC’s copyrighted file footage of Ignatieff. The CBC claimed that the use of its footage in partisan ads undermined its reputation as an independent news source, and has accused the Conservatives of copyright infringement. The Conservatives responded that the ads were “free speech.” Besides, the Conservatives argued, the use of such clips for political speech purposes is “fair use” under United States copyright law, so it must be protected by the equivalent “fair dealing” provisions of the Canadian Copyright Act.

Are the Conservatives right? Not quite. There are important differences between American “fair use” and Canadian “fair dealing.” Fair use, as set forth in 17 U.S.C. § 107, protects an otherwise infringing use if it is “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.” It is well recognized that this list is non-exhaustive and flexible, so that virtually any use might be considered fair use if it meets the four-factor balancing test set forth in the statute.

By contrast, Canadian fair dealing, as set forth in Chapter C-42, Section 29 of the Canadian Copyright Act, protects only “research or private study,” “criticism or review” and news reporting. This list is considered to be rigid and exhaustive, so it arguably does not cover non-enumerated uses such as parody, education and time-shift viewing.

Does fair dealing protect political speech? It remains to be seen whether the CBC will sue and whether that suit will be successful. In recent years, some Canadian courts have shown a willingness to give the fair dealing categories a “large and liberal” interpretation, but it is still far from clear that political attack ads will qualify as “criticism.”

In the meantime, the controversial Bill C-32, which includes fair dealing reform legislation drafted by the Conservative Party, is being considered by the Canadian parliament. Some advocates had lobbied for this bill to replace the rigid fair dealing categories with a flexible American-style fair use model. Instead, the Conservative’s bill would maintain the inflexibility of the current system but would add new fair dealing categories protecting parody, satire and education, as well as additional exceptions that may address time-shift viewing. Ironically, the Conservatives decided not to include an exception for political speech.