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Jay Currie

One Damn Thing After Another

4/16/2004

BlogsCanada and Freedom of Speech

If you have been reading Canadian blogs you'll know that the valuable Jim Elve has been told by the Government of Canada to cease and desist from using what the GoC believes is their wordmark and the overall "look and feel" of the GoC' websites. Lots of bloggers have commented that the GoC should have something better to do than harass a perfectly innocent and rather helpful parody site. Which they should.

But there is also an interesting legal issue.

In the United States copyright law had to take account of the 1st Amendment's protection of free speech. Part of free speech is parody and so, under the doctrine of fair use, infringement in the nature of parody is exempted.

Copyright law in Canada is rather different. Here we have a notion of "fair dealing" which is considerably less driven by free speech considerations.

So far as technical legal issues go, while the BlogsCanada site is certainly a rather clever parody of the Government of Canada's none too original website, it takes more than that to make a “look and feel” case stick. Legal questions of “fair dealing” and the fact there is no attempt to “pass off” the BlogsCanada site as being a Government of Canada site will keep copyright lawyers very busy indeed. So will the words “Definitely NOT the Government of Canada” which appear on every page of the site. (Web developers have also pointed out that Elve developed all of the code himself and it bears no resemblance to the GoC code.)

BlogsCanada may take comfort in the Canadian Supreme Court’s view enunciated in its ruling CCH Canada Ltd. v. The Law Society of Upper Canada, is that copyright is not an absolute entitlement but is to be balanced against other interests. “In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictivel….User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation."

This ruling has already been cited in the Federal Court as grounds to interpret the private copy right for music widely enough so as to allow full scale file sharing and there is no reason to believe it does not extend the concept of fair use.

There is little question that a website which purports to be the Government of Canada and uses the look and feel of the legitimate GoC site to attempt to gull people is engaged in fraud. Criminal law and trademark law can each be used to prosecute such fraud. Obviously, a parody site gulls no one. However, unlike the United States where parody is a protected activity – being a manifestation of First amendment protected free speech – under the “fair use” rules; in Canada parody has never been used as a successful defense to a copyright or trademark infringement suit.

So the question which the GoC is opening is whether a rather mild parody of the GoC can be shut down using copyright and trademark law. In light of the Supreme Court's decision in CCH this may well be an excellent legal moment to ask if parody should have the fair dealing exemption extended to it. An argument made all the more compelling by the jurisprudence which has developed around the Charter of Rights and Freedoms.

This would be a dandy case for the Canadian Civil Liberties Association to take through the Courts.

Update: To get an idea of just how easy it would have been for Elve to directly copy the GoC site take a look at this version of the BBC