Law Times

Law Times • may 9, 2016 Page 7 www.lawtimesnews.com COMMENT Where are the clowns? BY LYNN M. BURSHTEIN A fter intense parliamentary debates span- ning six years, the Copyright Moderniza- tion Act finally came into force in June 2012. While many of the changes to Cana- da's copyright laws had been hotly contested, one widely embraced provision was the expansion under the fair dealing provision to include parody and satire. By way of background, the fair dealing exception is a defence to copyright infringement that permits the use of original works in certain cases, without the need to obtain permission from the copyright holder. Under s. 29 of the act, fair dealing had previously only included the right to use original works without permission for research and private study, criticism, review, and news reporting purposes. The addition of satire and parody to this provision was generally seen as a positive step in the evolution of Canadian copyright law. By adding these new categories of fair dealing, this brought Canadian copyright law more in line with that of the United States, where the courts have considered parody a viable de- fence under its equivalent fair use doctrine for decades. Why was it important for Canadian copyright fair dealing laws to be on par with those in the U.S.? As a legitimate form of criticism, parody allows for the cre- ation of works that ridicule other famous works or sub- jects, with few legal constraints (subject to libel consid- erations, of course). This leads to comedic works, which, although controversial, are topical and compelling. For decades, the U.S. entertainment industry has cre- ated irreverent comedy (think Saturday Night Live, late- night talk shows, and edgier animated television series such as The Simpsons, South Park, or Family Guy). The prevalence of this type of irreverent humour in America may in large part be due to the fact that U.S. copyright law has long recognized parody as a fair use defence. Works of parody quickly become fodder for Face- book feeds (the present-day equivalent to "water cooler talk"). The buzz that ensues creates a high demand for such works, not to mention a better outlet for comics who don't like to play it safe. So, where parody forms part of pop culture, more and better employment op- portunities abound. Presumably, the expansion of the fair dealing exceptions in 2012 to include parody and satire should have resulted in more diverse comedic works in Canada in recent years. However, from my point of view, this change has yet to materialize. And it's not because we don't have the talent here to begin with. If the widely held belief that Canadians by their nature are too polite, that we simply are not disposed to creat- ing such controversial content, then how does one ex- plain the sheer quantity of talented comedians who have f locked to the United States for the past several decades? It is astonishing to see the number of legendary Sat- urday Night Live cast members who have hailed from Canada. Aside from the show's creator, Lorne Michaels, a Toronto native, previous SNL cast members include Dan Aykroyd (Ottawa), Paul Shaffer (Thunder Bay), Martin Short (Hamilton), Norm MacDonald (Quebec City), Mike Myers (Scarborough) and the late, great Phil Hartman (Brantford). And aside from SNL, many other Canadians, such as Brandon, Man.-born Tim Long, have succeeded behind the scenes as writers on The Simpsons and Late Show with David Letterman. In more recent years, Toronto comedian Samantha Bee became a regu- lar correspondent on the Jon Stewart Show. In his 2014 article for Splitsider.com, a web site dedi- cated to comedy, on the subject of Canadian comedians who emigrate to the U.S., writer Christian Borys stated, "At some point, every comic serious about their career makes the move to either New York or Los Angeles." Clearly, the Canadian economy has suffered as a re- sult of its historical aversion to produce works of parody and satire. Quite apart from the economic benefits that would result from works based on parody and satire, the form, of course, has many important non-commercial benefits. At a time when news is available around the clock, when political and social controversies are just a tweet or Instagram photo away, the power of parody and satire becomes even more significant. Take, for ex- ample, Saturday Night Live's response to the Twitter campaign #OscarsSoWhite that ignited after this year's Academy Award nominations were announced. For the second year in a row, there was a lack of racial di- versity among the nominees. In the face of the con- troversy, some celebrities spoke out against the pro- testers, claiming that the nominations were simply based on merit. With its trademark sardonic humour, SNL thumbed its nose at those celebrities who derided the protesters, with a comedic sketch that mocked the parade of Caucasian supporting actors who stole nomi- nations away from the central black leads. Another SNL sketch, the outrageous "Racists for Donald Trump" campaign ad that aired recently, served as comic relief for those who have watched in horror as Trump's bid for a U.S. presidential nomination rolls on. These send-ups offer biting commentary on serious issues. They can in- f luence one's opinion on a heavy subject in a way that rational discourse and news editorials may not be able to do. Certainly, Canada has enough of its own political and social foibles to warrant a separate platform for this kind of transformative programming. It's not as though works based on parody and satire have never succeeded in Canada. Vintage TV series such as The Kids in the Hall or SCTV could go toe to toe with SNL any day, in my view. Those television pro- grams include some of the most intelligent, Canadian- centric political and social commentary in the history of the medium. The expansion of the fair dealing provi- sion should have resulted in a new generation of Eugene Levys, Catherine O'Haras, Andrea Martins, and Bruce McCullochs by now. If we want to nurture and retain comedic talent, the Canadian entertainment industry needs to start utiliz- ing the benefits afforded by the parody and satire fair dealing exceptions under the Copyright Modernization Act. Until then, we will continue to watch by the side- lines as American sketch comedy programs, animation series, and late-night talk shows f lourish on the backs of our home-grown talent. LT uLynn Burshtein is a media and entertainment lawyer practising in association with Inter Alia Law www.interalia-law.com. Her practice includes con- tract negotiations, copyright and trademark licens- ing, and marketing and advertising law matters. u SPEAKER'S CORNER New LSUC mental health strategy a leap forward I s the legal profession in Ontario a safe and welcome place for people with mental health or addiction challenges? Is the humanity of its members and potential members honoured, tolerated, or judged? And is the Law Society of Upper Canada an agent of cold regulation or humane oversight of a respected and necessary profession? I have worked in the area of lawyer as- sistance for 10 years, as both a case manag- er and psychotherapist, having previously practised law as well. From that vantage point, I've had a unique perspective on the state of mental health and addictions in the legal profession in Ontario and beyond. When I was in law school in the early 1990s, depression, anxiety, and addiction were never mentioned. I was aware of class- mates who suffered mightily with mental health challenges, afraid to admit that they needed help. They suffered in silence. And I was aware of their fear that the "Big Bad Law Society" was watching, with the power to deny them the career they so coveted. I've seen lawyers who, in the face of rel- atively innocuous Law Society mail inqui- ries, were simply unable to do something as simple as open their mail, due to para- lyzing anxiety. If there's one thing you can count on irking the Law Society beyond bald malfeasance it's what it perceives as unresponsiveness, or what it would view as ungovernability. I have also been wit- ness to cases of articling students mis- treated and abused, and to lawyers forced into disability leaves due to un- relenting, crushing workloads. I've encountered countless people avoiding help available through the Member Assis- tance Program due to stigma, shame, and self-judgment. Twice this spring, I was given the honour of making submis- sions before the Law Society of Upper Canada's Mental Health Task Force. The fact that the Law Society empanelled such a task force is a profound step forward. This august gathering of bench- ers set out to earnestly and meticulously study the state of mental health in the legal profession in Ontario and determine the appropriate role that the Law Society can play in advancing its members' wellness, in- cluding whether the Law Society should be involved in such considerations at all. The report of its findings and recom- mendations, released April 28 and ad- opted by Convocation soon thereafter, is a watershed moment in the Ontario legal profession's approach to mental health. Over the years, much lip service has been given to concepts of "wellness" or "work- life balance" with little, if any, tangible outcomes for the betterment of the pro- fession. This time, as former president of the Ontario Bar Association Orlando Da Silva — who so courageously championed mental health awareness during his tenure — pointed out, this report is a "sea change." The task force report lays out the challenges we face in a thoughtful, compassionate, and sophisticated manner, and proposes a multitude of initiatives to improve the state of mental health in the legal profession in Ontario. Many of the recommendations are aspirational, such as a call to "continue a broader con- versation addressing mental health and addictions in the legal professions." This speaks to the need for a culture shift to a more open and compassionate en- vironment for members in distress. The report also recommends very specific ac- tions and initiatives that the Law Society itself can implement to improve how the profession and regulator interact. It rec- ommends diversionary and "in-camera" disciplinary or capacity proceedings in cases where the underlying issues are not based in malevolence but are instead rooted in mental health concerns. It rec- ommends better educating Law Society staff on these issues, including on ways to minimize stigma affecting members and better understand how to constructively interact with those in distress. This would be relevant, for instance, in the case noted above of the lawyer whose anxiety is preventing her ability to respond to Law Society inquiries. These are among a litany of other recommenda- tions, all designed to buttress the mental health of those who populate our profes- sion in Ontario. One additional recom- mendation I would highlight is that the Law Society supports even more robust and comprehensive assistance program- ming for members through the Member Assistance Program. It also recommends a more consistent and varied outreach to members to advertise the multitude of free, confidential services that are avail- able to them. There are few things more frustrating than knowing we have col- leagues in need of readily available assis- tance who simply do not know that help is available to them. In my 10 years working in lawyer assis- tance, I have never been more hopeful that we are moving past the lip service phase of how the legal profession in Ontario addresses mental health and into a new awareness of the urgency of these issues, backed up by concrete, tangible action. Now, let's keep our proverbial collective feet on the accelerator. We've come a long way, and we have a long way to go. LT uDoron Gold is a registered social worker who's also a former practising lawyer. He works with lawyers and law students in his role as a staff clinician and presenter with the Member Assis- tance Program as well as with members of the general public in his private psy- chotherapy practice. He's available at dorongold.com. The Lawyer Therapist Doron Gold

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