Friday, October 10, 2014

On universal freedoms

I won't wade too far into the sudden discussion of political advertising raised by the Cons' plans to change copyright law to favour political advertising, as Michael Geist has largely captured the most important points. But I will raise one quibble with Geist which hints at a more reasonable legal reform.
My criticism of the government here is not in seeking to protect political speech by ensuring that the law features sufficient flexibility to allow for appropriate uses without permission. Rather, it stems from the view that there are far better policy approaches available than an awkward self-interested exception.

As a starting point, I think the government should simply rely on existing law. With a robust fair dealing provision and a cap on liability for non-commercial infringement, the risk of an infringement claim is low.  This proposal may be a solution in search of a problem and we would do better to test the boundaries of the current law rather than bury an exception in a budget bill.

Alternatively, if the government is convinced that fair dealing does not fully cover political speech, the far better approach would be to establish a full fair use provision in Canada. A fair use provision offers the benefits of applying in all circumstances (not just political advertising) and would be available to all users (not just political parties and candidates). Moreover, it would ensure that usage would be subject to a fairness analysis, which this exception does not appear to do.
Now, I can appreciate the argument for a broad fair dealing exception to copyright law. But some of the distinctions highlighted by Geist might well be justified in the case of a type of speech which as long been acknowledged as lying at the core of our fundamental freedoms: if political speech is indeed of central importance even as compared to other forms of speech, then it's not clear that the fairness analysis applied in other contexts should limit the use of information for political purposes.

As a result, I'd see the crucial points of attack against the Cons' plan arising out of two areas: the fact that it applies only to political advertising rather than any type of public discussion, and the difference between "all users" and "just political parties and candidates".

In their proposal, the Cons have effectively confirmed that they see political discussion as being conducted solely by paid partisan actors, for the benefit of paid partisan actors. And by implication, members of the public are limited to being passive viewers of the ads generated by the parties.

But there's no reason why we should accept that distinction. Instead, any recognition of the importance of political speech should lead us to want all citizens to have the ability to make use of publicly-available information to share their views - whether or not they're operating under a a party banner, and whether or not they can afford to fund an advertising campaign.

In other words, if we want to ensure that broadcast materials are properly available to inform a full public debate, then there's no reasonable basis for carving out special privileges for partisan advertising. Instead, material should be equally available to parties, individuals and other political actors alike for use in whatever medium they see fit. And if the Cons intend to use copyright law to amplify their own preferred message distribution channels while comparatively silencing others, that - not any concern about the editorial decisions of the media - should be the more important objection to their attitude toward democracy.

[Update: In a followup post, Geist makes much the same point.]

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