OTTAWA - Conservative attack ads fired at Liberal Leader Stephane Dion may end up sideswiping the ruling party after questions were raised about possible breach of copyright laws.
The television ads, which began airing Monday, use footage from last fall's Liberal leadership debates to deliver the message that the new Grit leader is weak, indecisive and an environmental failure. But that footage belongs to a consortium of TV networks which pooled their resources to provide live coverage of the debates. The Cable Public Affairs Channel provided the pool camera for each debate.
The networks are now looking into how the Conservatives obtained the debate footage for their ads.
CPAC anchor Peter Van Dusen said Monday that any outside use of debate video would have to be approved by all pool members. Moreover, he said such video is traditionally never authorized for use by political parties.
Van Dusen said he is not aware of any request by the Tory party to buy or use any portion of the debate videos.
"It would come through me and I certainly don't remember ever getting a request," he said, adding that he "would've said no" if he had received a request.
Conservative spokesman Ryan Sparrow refused to say how the party obtained the clips. But he stressed that the ads were approved by the Television Bureau of Canada before going to air.
However TVB president Jim Patterson said his agency - a voluntary advertisement-vetting service, created by private broadcasters - has nothing to do with ensuring that ads don't violate copyright laws.
"We don't rule on copyright. That is not our job," Patterson said.
Indeed, Patterson said the TVB always gets advertisers to sign a general letter of indemnity, specifying that the bureau can not be held liable if any legal issues arise from an ad. The Conservative party signed such a letter.
Given the reliance on debate footage in the ads, Patterson said the TVB has drafted a more specific letter of indemnity that it will require the Tories to sign for any ads in future. The new letter specifies that the TVB cannot be held liable for any copyright infringements.
Without knowing how the Tories came by the debate footage, copyright law expert Michael Geist said it's difficult to judge whether there may have been an infringement.
It's possible one of the networks sold the video to the Conservatives; the networks are checking to find out if their marketing or archival units might have done so.
Alternatively, a party member could conceivably have recorded the debates on a camcorder from a seat in the audience.
But if the party simply taped the debates from television, Geist said the ads could fall into a grey zone in Canadian copyright law.
"They might try to argue that they would qualify for some sort of exception under the Copyright Act," said Geist, a University of Ottawa law professor.
The most likely exception, he added, would be the "fair dealing exception for criticism."
Geist said the use of such video clips in political ads would be entirely proper in the United States, which applies a broad "fair use doctrine" to its copyright laws. The fact that the Tory ads raise questions here highlights the shortcomings of Canadian law, he added.
"Frankly, it should be beyond doubt that they should be able to use short clips of these kinds of public political events that should fall under a fair use doctrine. I think it's unfortunate that under Canadian copyright law there is some level of uncertainty."
