By Frank Moher
The recent Supreme Court of Canada decision in favour of Vancouver broadcaster Rafe Mair was a big step forward for Canadian journalists and their readers. Mair had been sued by a “Christian-values advocate” who thought he’d defamed her, but the Court ruled 9-0 that “an overly solicitous regard for personal reputation” should not “be permitted to ‘chill’ freewheeling debate on matters of public interest.” This brings us a lot closer to the American definition of fair comment (by which just about anything goes, especially when it comes to public figures), and away from the British one, which saw, for example, Conrad Black reflexively suing journalists who’d offended his exquisite sensibilities.
In fact, if it hadn’t done so, I’d have had to think harder about the possible legal ramifications of that last sentence. The Supremes’ ruling means that comment in our sometimes too deferential country is liable to become livelier, not to mention more fractious.
However, in the way of these things, the Feds were only giving back with one hand part of what they had recently taken away with another.
Bill C-61, the copyright reform bill recently tabled in parliament, is not the spawn-of-hell, civilization-ending piece of legislation Michael Geist and his Geistolytes make out. The Internet has spawned an absurd culture of entitlement, whereby a lot of people have concluded that if they want something to be free, it should be. Try out that theory next time you’re in a department or grocery store.
But C-61 is full of flaws, the most pertinent of which, for purposes of this column, is that it makes no provision for fair use of digital content in journalism. In education, yes, but not in journalism. So let’s say I wanted to show you (grabbing a DVD off the nearest shelf . . . hmm, let’s see . . . yes, this will do) this little scene from The Day After Tomorrow (click on the word “tomorrow”) . . .
. . . in order to suggest that it’s the most effective piece of anti-Bush administration propaganda ever to appear in pop culture. That would traditionally be fair use, in the same way I can quote from a book I’m reviewing.
But under C-61, I couldn’t do it. Simply by using decryption software to turn the movie into a file I could edit and post, I’ve already broken US law, and will one day have broken Canadian law, if C-61 goes through as written.
Nor could I take a clip of Stephen Harper (assuming it arrived with digital locks, or on a TV with digital locks) and add a little smiley-face to it to satirize his “don’t worry, be-happy” approach to climate change. I couldn’t even take a Coldplay video, change-up the lyrics, ala Weird Al Yankovic, and post it; there’s no provision for parody in C-61, despite parody being a long accepted example of fair use.
It wouldn’t be the satire itself that would be unlawful; making fun of public figures remains legal, at least until Mr. Bush declares himself emperor of North America. It’s the act of using certain software in order to create the parody that would expose me to big fines. If I could figure out a way to do it without cracking the encryption, I’d be okay. Psychokinesis, maybe?
So, the best basis on which to criticize C-61 is not that it protects giant entertainment companies, though it does, but that it’s nonsensical. We can’t expect governments to tell big business to start giving away its products, but we can ask that its laws be internally consistent. Note, however, that making C-61 internally consistent would also have the effect of continuing to allow sufficiently-motivated individuals to do whatever they wanted with their copy of The Day After Tomorrow, at least until some impregnable encryption technology comes along. In which case everyone — except, as usual, the big entertainment companies — would be happy.
By the way, that little clip from The Day After Tomorrow is indeed a good piece of anti-Bush propaganda, whatwith the infernal Dick Cheney figure telling the doofus George Bush character what to do. Have a look, if you haven’t already. And don’t worry; if C-61 passes as is, it’ll be my ass, not yours.