Copyright Maximalists And Lobbyists Celebrate Vancouver Aquarium Censoring Critical Documentary With Copyright
from the copyright-is-censorship dept
We've written many times about how copyright is frequently used for censorship, and just recently we wrote about law professor John Tehranian's excellent article detailing how copyright has a free speech problem, in that people using copyright to censor has become more common and more brazen. Whenever we write this kind of thing, however, I get pushback from copyright maximalist lobbyists and lawyers, who insist that no one really wants to use copyright for censorship purposes, but merely to "protect" their works.I'm finding those claims difficult to square with the following story, which I only found out about because the Copyright Alliance -- a front group for the big legacy entertainment companies, and put together by some well known lobbyists -- tweeted out a link to a story on a blog by Hugh Stephens, entitled A Whale of a (Copyright) Tale. Stephens is a former copyright policy guy for Time Warner as well as a former diplomat, who blogs about copyright issues in Canada.
He happily tells the tale of how the Vancouver Aquarium has successfully blocked filmmaker Gary Charbonneau, who made a documentary critical of the Aquarium's treatment of dolphins and whales, from using clips from the Aquarium's website. In the original version of the documentary, approximately five minutes of the hour-long film came from clips he pulled from the Aquarium's own website. The Aquarium wanted to get the entire film blocked by the court, giving you a pretty clear vision of how they were looking to censor the film. While the courts have not gone that far, they did order Charbonneau to make a new edit and remove all of those clips.
Stephens not only thinks this is a perfectly grand solution, he mocks Charbonneau for not having thought more carefully about the copyright issues here (really):
Charbonneau may be facing substantial damages if he is found to have violated the Aquarium’s copyright. You would think that Charbonneau, as a film-maker and creator himself, would have given this greater thought. It would have been so much simpler and straightforward to have taken a little more care to consider the implications of using copyrighted content without permission, and accessing clearly-legal alternate sources if necessary. That is the true moral of this story.Wow. It's as if Stephens has no idea that filmmakers regularly rely on fair use -- and that's especially true of documentary filmmakers. It's why, here in the US, there's been a big movement to build best practices concerning fair use to help better protect documentary filmmakers in making use of the works of others. Yes, this case is in Canada, rather than the US, and they have a somewhat different set of rules involving fair dealing, but let's cut through the semantics and get to the basics:
- The Vancouver Aquarium did not need copyright to produce videos to put on its website. It made those videos to help market the aquarium.
- The Vancouver Aquarium did not sue Charbonneau because they were concerned about copyright.
- The Vancouver Aquarium did not sue Charbonneau because they were protecting the vast licensing market for the marketing videos they put on their website.
- The Vancouver Aquarium sued Charbonneau because they don't like his film, wanted to make life difficult for him and wanted to censor the film.
The details of the case just make this look more and more ridiculous. The Aquarium claimed -- and the judge accepted -- that leaving the clips up in the movie while a full trial happened would create "irreparable harm." What possible irreparable harm would happen here? Yes, the Vancouver Aquarium's reputation may be harmed, but that's not a copyright issue. Again, it's difficult to see what copyright related harm could possibly come from this. Would it harm the Aquarium's ability to license those clips? It's hard to believe there's a very big market for that. And, even if there were, that's the kind of thing where a monetary remedy would fix any such harm. The only conceivable harm comes from what would normally be protected speech if one actually supported freedom of expression.
Hell, even the Aquarium more or less admits that it brought this lawsuit not because of any copyright issue, but because they don't like Charbonneau's message:
The Vancouver Aquarium Marine Science Centre said in a statement it's pleased with the decision. The centre said it's seeking to protect copyrighted materials developed to raise awareness about ocean conservation.So sue him for defamation, not copyright infringement.
"We feel strongly that the conservation, research and education programs we lead need to be fairly represented and protected from those who choose to deliberately make false claims," said the statement.
Stephens, in his blog, also suggests that it's no big deal for Charbonneau to re-edit the film without those clips, because Charbonneau was quoted elsewhere saying many of those clips "were filler." I must admit, I always find it quite comical how those who claim to represent the interests of artists then think that it's fine for lawyers and judges to make artistic choices for the content creators. Charbonneau had creative reasons for using those clips. We should be quite worried when lawyers, lobbyists, judges and diplomats suddenly think that they're in the business of deciding which creative choices are allowed and which are not.
So, remember this story the next time you see these people claiming that (1) they stand up for the artist or (2) that copyright is not used for censorship. They're lying.
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Filed Under: canada, censorship, copyright, fair dealing, fair use, gary chabonneau, hugh stevens, vancouver, whales
Companies: copyright alliance, vancouver aquarium
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Oh, what irony.
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Naturally, a viewer seeing this in a film about the Vancouver Aquarium's possible mistreatment of dolphins would wonder what they were trying so hard to hide. Copyrighted web site images? Probably not. Vivisection of Flipper? More likely.
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Re:
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censorship vs. copyright
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I get pushback from copyright maximalist lobbyists and lawyers
A: Their mouths are moving.
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Different standards
With copyright infringement all you have to do is claim that it's infringing, and that's good enough for most judges, and now the other person has to demonstrate how it's not.
For defamation claims on the other hand you actually have to demonstrate how it's defamation, and courts are much less likely to adopt a 'shoot first, deal with the mess later' approach unless the defamation in question is so blatant, and so bad, that it's obvious to anyone and leaving it up with have very real negative consequences for the defamed.
They used copyright for their censorship rather than defamation because the bar is much, much lower for copyright claims, and because with copyright the target has to demonstrate innocence, rather than the accuser having to prove guilt.
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Re: Different standards
Interestingly, even if the aquarium is actually doing a good job keeping the animals healthy this has driven me to think otherwise. How many had the same reaction? How much worse is their image now?
Good PR practice: film a counter documentary showing it's lies and possibly inviting 3rd parties to visit and participate in the documentary. Censorship by copyright is much faster though.
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Re: Different standards
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I await for the backlash.
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/s
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No need to go there anymore.
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That's fantastic, how did you do it?
We ignored fair use, and issued a copyright claim. Then the pro-copyright side applauded what we did!
*video begins to play https://www.youtube.com/watch?v=wWhtcU4-xAM *
Can you hear that?
Oh no, no no no no you managed to invoke her wrath!!!!
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Any chance this will be appealed?
Surely a judge should understand that this is text-book case of Fair Use/Fair Dealing?
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