Getting a Fair Deal

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Unless you're an expert in copyright legislation, or happen to have taken a media law course lately, you're probably unfamiliar with the phrase "fair dealing". Simply put, fair dealing involves what might be considered exemptions to copyright law. Those exemptions include copyrighted material used for purposes of education, private study, reviews of artistic performances, satire, and news reporting.

With respect to news and current affairs, this doesn't mean journalists have free rein to use other peoples' words, photos or video. While the "fair" in "fair dealing" isn't extensively defined in Canadian law, it's understood that any use of these materials must be credited to the source.  Beyond that, it appears there are as many definitions of fair dealing offered by journalists, journalism professors and lawyers, as there are journalists, journalism professors and lawyers themselves, here in Canada and around the world.

We've been giving this issue a lot of thought after a complaint we received recently from a reporter/photographer at a newspaper in British Columbia. Both CBC Television and cbcnews.ca used a photograph he'd taken of a little girl who'd been attacked by a pit bull and rescued, in part, by a chihuahua.The photograph was a good way to illustrate this story.  While we gave the newspaper credit in the online version of the story, we failed to do so in the television story, which was an error on our part. 

The reporter also told us CBC News should have asked his permission to use the photograph. Technically, that's not a requirement, because of the exemption granted for news reporting.   But we don't want to hide behind the law; our journalists try to reach out to the owner of the copyright, time permitting. Given the 24-hour news cycle and limited resources, that's not always practical.

That speaks to one of the reasons the fair dealing exemption exists in the first place.  Timeliness is an essential quality of news, and if all journalists had to track down the owners of copyrighted material to give them a head's up, the value, importance and interest in the story may have passed.

Another issue raised by the BC reporter was the relative importance of the story.  While a little girl being bitten by a dog may not be as critical as the prospect of air strikes in Syria or the Quebec values charter, stories like these generate a lot of public interest and discussion, and for many parents, it was probably more important than the top international and national news that day.

The CBC Ombudsman has looked into the reporter's complaint, and published her review. While she does not find any fault in the actions of CBC News in this case, other than the mistake in failing to acknowledge the source of the photograph in the television story, she does recommend that my senior news management team and I develop clear guidelines on fair dealing. This is something that we'll carefully consider, in consultation with our journalists and legal department, because as I said at the beginning, there are many opinions about what's right.

Then there's the matter of what constitutes "publishing" these days. Ten or fifteen years ago, that would have been restricted to books, magazines, newspapers, broadcast outlets and their primitive websites. Now, with social media, all of us are capable of sharing our photos, videos and words, and many of us do. Technically speaking, whoever takes a photo and posts it on a social media site holds the copyright to it. While we can't expect that our Facebook postings, YouTube videos and Twitpics will remain within our circle of friends, does it mean news organizations have unfettered rights to use them, as they frequently do if we suddenly become newsworthy?  

Our colleagues at the BBC, who have developed some guidelines on the use of photos from social media sites, which include these cautionary words:

            The publication of a picture on a personal website of social networking site does not necessarily mean the owner of that picture intended it to be available for all purposes and circumstances - or understood that it could be.

            We have the responsibility to consider the impact our re-use of a picture to a much wider audience may have on those in the picture, their family or friends - particularly when they are grieving or distressed.

While CBC News may not have explicit written guidelines like these at the moment, our journalists do wrestle with those issues on a daily basis. We've even been asked, on occasion, for payment when we've used these materials, which we're not inclined to do, as they were produced and shared freely.   

All of this demonstrates how the practice of journalism is ever changing, and has come a long way since the days since it consisted largely of telling people 'Lord Jones is dead' to people who didn't know Lord Jones was alive, in the immortal words of G.K Chesterton. I would have asked his permission to use that line, if he hadn't died more than 75 years ago!