Law Times

LAW TIMES / JULY 28/AUGUST 4, 2008 sonality. So that's where it went. The Liberals must have hidden it in Stéphane Dion's knapsack. It's amazing they could find it. That means there'll be no more shaking hands with his 12-year-old son for Harper. Who knew it was worth that much? Actually, it's a serious matter. In Who stole his personality? S tephen Harper is suing the Liberals for $1 million for misappropriating his per- The Hill By Richard Cleroux the sponsorship scandal. In Canada, that's called bribery. The source is Cadman's widow, law there is a tort called "misappro- priation of personality." And it has nothing do with "personality" as in, "Hey, that Harper's sure got a lot of personality." Nobody would ever say that anyway. The misappropriation tort pro- tects famous people from having their identity, which includes their face or their voice or other features, being used by someone for com- mercial gain without their consent. For instance you couldn't air an ad of George Clooney driving off in a Ford with an announcer saying enthusiastically: "Guess who's driv- ing a Ford, folks?" The law covers well-known people such as athletes, musicians, movie stars, writers, and even poli- ticians. As prime minister, Harper definitely falls into the category of a well-known person. Well-liked is not a category. But it's not cut and dried. There are exceptions. The Supreme Court ruled recently the protection is not absolute. No consent is needed when it involves someone "brought into the public arena because of their position, professional duties or some unique circumstance." Sounds like a politician. Last year the Conservatives used video clips from the Liberal conven- tion and the House of Commons and ran an ad that showed Dion as a hopeless wimp stuck with a bunch of crooks in a haunted house. Great television. A real hoot. They must have been using of the "public arena" exception. Dion never sued. He said people would see through the ads. His pop- ularity dropped 10 points. The misappropriation suit comes while Harper is already suing the Liberals for $2.5 million in defama- tory libel in the Cadman affair. The Liberals ran two headlines on their web site: "Harper knew of Conservative bribery," and, "Harper must come clean about allegations of Conservative bribery." Harper hired expert libel lawyer Richard Dearden of Ottawa. Harp- er doesn't pay the legal bills. Taxpay- ers do. It's a trifle. Taxpayers have already paid $519,000 in legal fees this year fighting off Harper's bid to extract an extra $1.1 million in re- funds from Elections Canada. The case has barely gone to court. Harper's libel case notice says the web site headlines were "false and devastatingly defamatory" and "ma- licious and reckless" and suggested Harper is "dishonest, unethical, im- moral and lacks integrity." Now who would ever use words like that about our prime minister except in a libel notice? The issue arises out of a soon-to-be-published book entitled Like a Rock: The Chuck Cadman Story, by Tom Zytaruk. The books says Chuck Cad- man, the late independent MP, was offered $1 million in life insurance in exchange for casting the decid- ing vote to turf out the Paul Martin Liberal government at the height of Dona, who says her husband was offended and turned it down. Cad- man voted with the Liberals, and it kept the Martin government alive a few more months. Cadman died two months later. Dona Cadman collected only the regular MP's life insurance of $239,000 instead of $1 million. She is a Conservative can- didate in her late husband's riding, Surrey North. The problem for the Conserva- tives is a tape recording made by author Zytaruk with Harper on April 1, 2005. On the tape Harper admits there were "financial consid- erations" but he gives no details. At first the Conservatives said the tape might have been doctored. When that didn't wash, they said Harper was talking about paying Cadman's election expenses. Now they are saying that whatever the tape says, it cannot be used without their consent. That's why the "mis- appropriation" suit. Harper doesn't answer much in the Commons, and refuses to call a public inquiry into allegations about a vote-buying scheme. Instead, he sues for libel and misappropriation, unprecedented for a sitting prime minister. Harper is the best thing that has ever happened to the legal profession in Canada. Strange that he came to power dumping on law- yers, judges, and the court system. And yet, no prime minister has ever used the courts as much as Harper. Harper says the Cadman affair will be Dion's "biggest mistake in political judgment in his political career." Some might say that speak- ing so candidly into an author's mic about Cadman could be Harper's own biggest mistake. If Harper loses both cases, the Liberals will be able to use the Harper "financial considerations" tape (already half a million YouTube hits) during the next election. Here's a possible Liberal ad: a re-enactment of Cadman on his deathbed, as two dark and furtive characters offer him $1 million for his widow in return for his vote, followed by allegations from the widow, a Conservative candidate, backed by her daughter and son- in-law, and finished with Com- mons visuals of Harper and the recording of him talking about "financial considerations." As political advertising goes, it just doesn't get any more damaging. Forget about Dion looking like a ghost in a haunted house. The Cad- man affair ad is the real stuff. The misappropriation case is good political insurance. Even if Harper loses the defamatory libel case, he can still keep the Cadman ad off the air if he wins the case. And the Liberals may never get to tell their Chuck Cadman story on television. Of such things are elections won and lost. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@ rogers.com. PAGE 7 Technology outpaces the law C BY RYAN J. BLACK For Law Times anadians generally like to think of themselves as law-abiding citizens. However, thanks to antiquated copyright laws, most would be surprised to learn that they break the law almost daily. Nearly 80 per cent of on- line Canadian households use broadband internet access and other technical innovations such as iPods and personal video record- ers to gain "on-demand" access to books, movies, music, and television. However, while there has been a revolution in digital content technology, un- til very recently there has been stagnation in Canadian law re- garding its use. Even putting aside the per- vasive issue of unauthorized internet file sharing, the follow- ing commonplace activities are technically infringements under the current Copyright Act: "ripping" legally purchased music or movies to a com- puter hard drive or MP3 player; recording a television prog- ram to a VCR, DVD recorder, or personal video recorder (PVR); and creating a backup copy of a movie or video. In the United States, all of these activities, except file-shar- ing, fall under the general excep- tion to infringement known as "fair use." Over the years, U.S. courts have expanded fair use to cover the private activities for which digital media players are sold: recording material for later use (time-shifting), transform- ing material from one medium to another (format-shifting), and remotely using material from an- other location (place-shifting). Canada's version of fair use is called "fair dealing," which only permits some copying for research, study, criticism, re- view, or reporting. The legality of Canada's digital media play- ers rests on the act's "private copying" exemption, which es- sentially permits some copying while levying blank media to compensate content creators. But, in the context of digi- tal media, the private copying exception suffers from two fa- tal flaws: first, it only applies to music, and cannot be used for videos, television, or books; and, second, it only applies when the copying is made to "blank audio recording media" prescribed by regulation (in- cluding blank audiotapes and recordable CDs, but not record- Letters to the Editor Thanks to Tim Naumetz for printing enough facts so that we can evaluate the rigid Reform Party politics of the so-called "Canadian Constitutional Foundation." Too often, the creation of such a foundation, usually a tiny number of people, persuade press www.lawtimesnews.com able DVDs, hard drives, MP3 players, or memory cards). A 2008 Federal Court of Ap- peal case confirmed the limited application of private copying to digital media by quashing the Copyright Board of Canada's attempt to apply the private copying levy to MP3 players. Speaker's This decision was celebrated by retailers (who had balked at the proposed $75 levy), but com- mentators noted that it confirms that everyday uses of digital me- dia devices are infringing. Canada's Copyright Act also generates uncertainty about new technologies — for example, the Canadian version of the "TiVo" PVR was delayed for almost 10 years amid legal concerns, and broadcasters are concerned about bringing network-based PVRs (where recording and playback takes place at network hubs versus users' homes) to the Canadian marketplace. Against this context, it was clear that the Copyright Act needed an update, but how would Canada strike the ap- propriate balance between cre- ator rights and user rights? On June 12, the federal government tabled bill C-61, an act to amend the Copyright Act, which has seen its fair share of criticism in the main- stream media and blogosphere. Complaints can be summed up as, "What bill C-61 giveth, it taketh away." Bill C-61 would permit "private purpose" copying and time-shifting, but only if cer- tain conditions are met: the source cannot be rented or bor- rowed material, the copy can- not be given away, there can be only one copy per device, and time-shifted material may only be kept until later viewed. The most frequent com- plaint, however, is that bill C-61 protects "digital locks," also known as technological protec- tion measures (TPMs), above all else. This means that if a content provider chooses to implement a TPM (as is the case in most recent commercially available CDs and DVDs) most "user rights" are forbidden, includ- ing private purpose copying, format-shifting, and time- shifting, essentially leaving content creators free to decide what consumers can and can- not do with locked materials. Corner Instead of using general language to grant consumers broad "user rights" to copy- righted media, bill C-61 uses very specific, narrow exceptions to infringement to promote the enforceability of contract terms and TPM protection. Despite the loud com- plaints, there are legiti- mate arguments for doing this: proponents argue that Canada needs the type of legal framework that will encourage content pro- viders to bring new goods and services to the mar- ketplace, and that locks to dig- ital media need the same legal protection as physical locks to physical content, to promote the security of content. Bill C-61's detractors, how- ever, suggest that arts and in- novation has been flourishing in Canada without this rigid legal framework in place, and that the bill improperly focus- es on the lock-breaking instead of the nefarious activities that some lock-breakers undertake. The other downside to using narrow exceptions to address current practices is that, in- variably, they eventually raise further questions or necessi- tate further exceptions. In bill C-61, for example: Why does the format-shift- ing provision apply to video- cassettes and not DVDs? Why are users restricted in the number of "private purpose" copies made if the purpose is always private? Why is there no exception for circumvention when digitally locked media loses its "key," as can happen when digital formats change or content providers go out of business? Why are the music-shifting provisions limited to devices owned by the user, effectively limiting internet or network- based music shifting? Bill C-61 is not expected to receive second reading until the fall, giving plenty of time for lively debate and discussion. Both critics and proponents of bill C-61 agree that the Copy- right Act is in dire need of an update, but the battle lies in the balance. While this author would not presume to know the precise fix, Canadians should at least be able to legally enjoy their VCRs/ PVRs and MP3 players. LT Ryan J. Black is an associate in the technology and intellectual property group at Lang Michener LLP's Vancouver office. He can be reached at (604) 691-7422 or rblack@lmls.com. releases and "studies" issued in their name to be printed by the media on the assumption that as a foundation they must be impartial. Far from it. The question is: Why print this "study" at all? It evaluates Justice [Michel] Bastarache's career on the bench through such narrow political perimeters as to be meaningless. Why do we give newspaper space to what Mr. [Chris] Schafer, a mere two years at the bar thinks about Michel Bastarache? Yours truly, Clayton Ruby

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