T-2093-88
Federal Liberal Agency of Canada and Red Leaf
Communications Limited (Plaintiffs)
v.
CTV Television Network Ltd., Canadian Broad
casting Corporation, Global Communications
Limited (Defendants)
INDEXED AS: FEDERAL LIBERAL AGENCY OF CANADA V. CTV
TELEVISION NETWORK LTD.
Trial Division, Martin J.—Ottawa, November 7, 8
and 10, 1988.
Injunctions — Networks refusing to broadcast political
advertisements consisting of extracts from telecast leaders'
debate — Plaintiffs establishing prima facie statutory obliga
tion to broadcast advertisements pursuant to Canada Elections
Act, ss. 99.13 and 99.21 — Defendants establishing arguable
defence of copyright infringement — Balance of convenience
favouring plaintiffs as refusal of interlocutory injunction
depriving plaintiffs of right to which prima facie entitled —
Grant of interlocutory injunction not giving rise to equivalent
harm to defendants — Whether CTV considers advertisements
contrary to public interest irrelevant to balance of convenience
— Provision of penalty or disciplinary action for refusing to
broadcast material not precluding enforcement of statutory
obligation by Court order.
Elections — Canada Elections Act, ss. 99.13 and 99.21
prima facie imposing obligation on networks to broadcast
political advertisements — Advertisements consisting of
extracts of videotaped leaders' debate within meaning of - pro-
duced by or on behalf of party.
Broadcasting — Political advertisements — Canada Elec
tions Act, ss. 99.13 and 99.21 imposing on networks prima
facie statutory obligation to broadcast political advertisements
— Although arguable defence of copyright infringement in
using extracts from videotaped leaders' debate, balance of
convenience favouring plaintiffs.
Constitutional law — Charter of Rights — Fundamental
freedoms — Alleged right to refuse to broadcast political
advertisements under constitutional guarantee of freedom of
press dismissed.
This was an application for an interlocutory injunction pro
hibiting the networks from refusing to broadcast political
advertisements, being extracts from a videotaped debate, the
participants in which were the leaders of the three major
political parties. Sections 99.13 and 99.21 of the Canada
Elections Act requires the defendants to set aside free time and
paid time for political programming immediately prior to a
general election. The networks argued that they had copyright
in the videotapes, and that this was infringed by the advertise
ments. The CBC further submitted that under the constitution
al guarantee of freedom of the press, the networks are free to
refuse to broadcast any political advertisement if, for any
reason, they do not wish to do so. The Corporation also
submitted that as the advertisements were extracts from the
videotapes of the debates, they were not "produced by or on
behalf or' the plaintiffs within the meaning of sections 99.13 or
99.21. Furthermore, it was argued that the existence of other
penalties in the Act for breach of an obligation precluded the
use of an interlocutory injunction to enforce such obligation.
Finally, it alluded to an agreement between the parties whereby
the plaintiffs agreed not to use material from the debates in
their advertisements.
Held, the application should be allowed.
The plaintiffs had made out an arguable case, and the
defendants established that they have an arguable defence. The
plaintiffs established the existence of a prima facie statutory
obligation on the part of the defendants to broadcast their
political advertisements and the defendants established that,
assuming these advertisements amount to copyright infringe
ment, they were justified in refusing to broadcast them. As the
scales were approximately evenly balanced in this respect, it
was necessary to consider the balance of convenience. The
plaintiffs would suffer greater harm if the interlocutory injunc
tion were refused, than the defendants would suffer if it were
granted. A refusal would deprive the plaintiffs absolutely of the
right to which they are prima facie entitled. The defendants'
objections to broadcasting the plaintiff's advertisements were
more concerned with matters of principle which will continue to
exist after the election. If this decision is reversed, the prece
dent of allowing anyone to use its news material would no
longer exist. CTV's credibility as a news gathering operation
should not be damaged by this order as it acted swiftly in
opposing it, and would likely act just as quickly to have it
reversed at trial. The defendants' objections based on the public
interest are irrelevant to the question of balance of convenience.
As to the secondary objections: (1) there is no issue of
freedom of the press; (2) although the advertisements were
copied from the original videotapes, they were produced by or
on behalf of the plaintiffs; (3) the provision of a penalty for
refusing to broadcast the material or the possibility of discipli
nary action against the networks did not prevent the plaintiffs
from seeking a Court order to enforce the defendants' obliga
tion to perform a statutory duty; (4) there was no evidence
supporting the suggestion that there had been an agreement not
to use the material from the debates in preparing election
advertisements.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Broadcasting Act, R.S.C. 1970, c. B-11.
Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14,
s. 99.13 (as enacted by S.C. 1980-81-82-83, c. 164,
s. 17), 99.21 (as enacted idem).
Copyright Act, R.S.C. 1970, c. C-30, s. 4(3) (as am. by
R.S.C. 1970 (2nd Supp.), c. 4, s. 1),(4) (as am. idem).
CASES JUDICIALLY CONSIDERED
APPLIED:
American Cyanamid Co y Ethicon Ltd, [1975] 1 All ER
504 (H.L.); NWL Ltd y Woods, [1979] 3 All E.R. 614.
(H.L.).
CONSIDERED:
Can. Admiral Corporation, Ltd. v. Rediffusion, Inc.
(1954), 20 C.P.R. 75 (Ex. Ct.).
COUNSEL:
William T. Green, Q.C. and Claude Brunet
for plaintiffs.
Edward A. Ayers, Q.C. and Gary A. Maavara
for defendant CTV Television Network Ltd.
Gordon Henderson, Q.C. and Rose-Marie
Perry, Q.C. for defendant Canadian Broad
casting Corporation.
William T. Houston for defendant Global
Communications Limited.
SOLICITORS:
Beament, Green, York, Manton, Ottawa, for
plaintiffs.
Borden & Elliot, Toronto, for defendant CTV
Television Network Ltd.
Gowling & Henderson, Ottawa, for defendant
Canadian Broadcasting Corporation.
Fraser & Beatty, Ottawa, for defendant
Global Communications Limited.
The following are the reasons for order ren
dered in English by
MARTIN J.: The plaintiffs apply for interlocuto
ry injunctive relief prohibiting the defendants from
refusing to broadcast two political advertisements
and ordering them to broadcast them.
The advertisements consist of 120-second and
30-second extracts from the videotaped leaders'
debate which took place on October 25, 1988. The
plaintiffs have requested and the defendants have
refused to broadcast the first advertisement as a
free-time political advertisement pursuant to sec
tion 99.21 of the Canada Elections Act [R.S.C.
1970 (1st Supp.), c. 14 (as enacted by S.C. 1980-
81-82-83, c. 164, s. 17)]. They have also refused to
broadcast the second advertisement as a paid
political advertisement pursuant to section 99.13
[as enacted idem] of the Act.
It is not disputed that the defendants have made
available to the plaintiffs various times for the
broadcasting of the plaintiffs' free-time and paid
political advertisements and that, if the defendants
do not broadcast the advertisements which are the
subject of this application, they will have time
available and will broadcast other paid and free-
time partisan political programming produced by
or on behalf of the plaintiffs.
The defendants have refused to broadcast the
advertisements which are the subject of this
application for the principal reason that they claim
to have a copyright in the videotapes of the lead
ers' debates and that by taking unauthorized
extracts from the debates for their political adver
tisements the plaintiffs are infringing the defen
dants' copyright. I say that the defendants' "prin-
cipal reason" for refusing to broadcast the plain
tiffs' advertisements is on account of the alleged
infringement of the defendants' copyright because
the defendants have also advanced other reasons
for refusing to broadcast them.
Counsel for the Canadian Broadcasting Corpo
ration (CBC) submits that under the constitution
al guarantee of freedom of the press the networks
are at liberty to refuse to broadcast any political
advertisement if, for any reason, they do not wish
to do so. He argues that the networks have abso
lute control over the content of anything which is
presented to them for broadcast over their
networks.
He also submits that because the advertisements
are extracts from the videotapes of the debates
they were not produced by or on behalf of the
plaintiffs within the meaning of section 99.13 or
99.21 of the Canada Elections Act and that there
is therefore no obligation within the meaning of
those subsections on the part of the defendants to
broadcast them.
Furthermore, says counsel for the CBC, even if
there is an obligation on the part of the networks
to broadcast the plaintiffs' advertisements the
plaintiffs cannot enforce that obligation by injunc-
tive proceedings because there already exist penal
ties in the Act for the breach of that obligation,
should it exist, and the defendants are liable, as
well, to have their licences cancelled or otherwise
restricted by the Canadian Radio-television and
Telecommunications Commission (CRTC) in such
an event.
Finally he says that more evidence is required in
order to ascertain the scope of an alleged agree
ment between the plaintiffs and the defendants in
order to determine whether there exists some
agreement on the part of the plaintiffs that they
would not use the material from the leaders'
debates for the purpose of their political advertise
ments.
To these objections I have the following
observations:
1. I do not see any issue of freedom of the press
in this application except to the possible extent
that the plaintiffs might advance an argument
that the principle entitles them to the use of the
press for the purpose of expressing their partisan
political programming in the manner provided
for in the Canada Elections Act.
2. In my view counsel has assigned too narrow a
meaning to the phrase "produced by or on
behalf of' contained in section 99 of the Canada
Elections Act. The debates and the tapes of the
debates may well have been produced by the
networks but in my view the 2-minute and
30-second videotaped advertisements tendered
to the networks for broadcasting were prepared
or produced by the plaintiffs. Granted that they
were copied from the original videotapes of the
debates, but the advertisements themselves were
nevertheless produced by or on behalf of the
plaintiffs.
3. Sections 99.13 and 99.21 of the Canada
Elections Act create legal obligations on the
part of the defendants to provide free and paid
broadcasting time for the broadcast of partisan
political programming. I know of no reason why
that obligation cannot be enforced by order of
this Court if the defendants wrongfully refuse to
broadcast the material presented to them by the
plaintiffs. Assuming that such an obligation
exists I do not see the provision of a penalty for
refusing to broadcast the material or the fact
that the networks might be subject to discipli
nary action by the CRTC in such an event as
operating to prevent the plaintiffs from enforc
ing the defendants' obligation to perform a
statutory duty by way of the relief sought in this
action.
4. While there were suggestions that there
might exist other evidence which would tend to
establish that the plaintiffs had agreed not to
use the material from the debates in preparing
their advertisements, these were only vague
suggestions of what might or might not exist and
did not amount to even a probability that the
evidence itself might exist. The issuance of an
interlocutory injunction, if otherwise warranted,
should not be refused on the basis of such vague
suggestions.
In addition to associating his client with the
submissions of counsel for the defendant CBC, and
the copyright objection, counsel for CTV Televi
sion Network Ltd. (CTV) submitted that it was
not bound by the provisions of sections 99.13 and
99.21 because it was a network operator and not a
broadcaster.
I believe counsel intended this submission to
apply only to section 99.13 which is directed to
broadcasters and not to section 99.21 which is
specifically directed to network operators. He also
appears to have overlooked subsection 99.13(2)
which directs network operators to make available
at the times set out in subsection 99.13(1) where
there is an affiliation between broadcasters and a
network operator such as exists in the case of the
defendant CTV.
It is also my view that counsel for CTV is
precluded from arguing, as he did, that his client
was not a "broadcaster" within the meaning of the
Canada Elections Act or the Broadcasting Act
[R.S.C. 1970, c. B-11] because in the affidavit
evidence of Mr. Tim Kotcheff, a vice-president of
CTV, that defendant is identified "as a licensed
broadcaster".
Having dealt with what I consider to be the
secondary objections to the plaintiffs' application I
come now to the principal objection based on an
alleged copyright. The rules governing the issuance
of interlocutory injunctions are well known, and
generally set out in the judgment of Lord Diplock
in American Cyanamid Co y Ethicon Ltd, [1975]
1 All ER 504 (H.L.). This was the basis upon
which all counsel argued both for and against the
application.
Sections 99.13 and 99.21 of the Canada Elec
tions Act provide that the defendants shall make
broadcasting time available for the broadcast of
partisan political programming during a fixed
period immediately preceding a general election.
In accordance with these sections the defendants
have set aside time, both free time and paid time,
during which they must broadcast political pro
gramming presented to them by the several politi
cal parties to which the times have been allocated.
The plaintiffs have prepared such programming in
the form of two political advertisements which
they have requested that the defendants broadcast.
The defendants have refused to broadcast the
advertisements on the grounds that they have a
copyright in the videotapes of the leaders' debates
and that in copying the videotapes of the debates
for the purpose of making their advertisements,
the plaintiffs have infringed the defendants'
copyright.
The plaintiffs deny that the defendants have any
copyright in the debates. They submit that because
the debate cannot be characterized as an original
literary, dramatic, musical or artistic work the
defendants can have no copyright in it. On the
basis of Can. Admiral Corporation, Ltd. v. Redif-
fusion, Inc. (1954), 20 C.P.R. 75 (Ex. Ct.), coun
sel for the plaintiffs argues that there can be no
copyright in the telecast of the debate because
there had been no fixation of the images as
required in cinematography or any process analo
gous to cinematography.
Furthermore he submitted that even if the
defendants have a copyright interest in the video
tapes of the debates the plaintiffs do not infringe
that right because they were not copying a sub
stantial portion of it. He submits that to use one
and a half minutes from a three-hour debate could
not be considered a reproduction of a substantial
portion of the debate.
In reply the defendants argue that, unlike the
Admiral case in which the Court found that the
cable station could tape and rediffuse to its sub
scribers the live telecasting of a football game, the
telecasting of the debate was not a live telecast. In
his affidavit Kotcheff describes the process where
by what is actually seen on the network is a
videotape of the debate which has been close-cap
tioned for the hard of hearing. Counsel for CTV
demonstrated, and it was not contested by the
plaintiffs, that the tape which forms a part of their
advertisements is a copy of the close-captioned
time delayed videotape of the debate and not a
videotape of a live telecast of the debate. The
close-captioning is not the transposition of each
word spoken in the debate but the sense of what is
said. This, argues counsel for the defendants, con
stitutes original literary work in respect of which
the defendants can and do have a copyright.
Counsel for the defendants also submits that
under the provisions of subsections (3) and (4) of
section 4 of the Copyright Act [R.S.C. 1970, c.
C-30 (as am. by R.S.C. 1970 (2nd Supp.), c. 4, s.
1)] they have a copyright in the contrivance, the
videotape of the debate, because the sound of the
telecast can be mechanically reproduced from it.
As to the plaintiffs' claim that the one-and-a-
half minute extract from the videotapes of the
debate does not constitute a substantial portion of
the debate, counsel claims it is a matter of fact to
be determined in all the circumstances of the case
and not just by a quantitative analysis of what has
been extracted as compared to the whole.
I am satisfied on these facts that the plaintiffs
have made out an arguable case or that there is a
serious question to be tried. I am also satisfied that
the defendants have established that they have an
arguable defence. The plaintiffs have shown that
there exists a prima facie statutory obligation on
the part of the defendants to broadcast their politi
cal advertisements while, on the other hand, the
defendants have shown that, assuming the adver
tisements amount to an infringement of their
claimed copyright, they were acting properly in
refusing to broadcast the infringing material.
It is not for the motions judge at this stage of
the proceedings to decide upon the respective
merits of these contentions. That is a matter for
the trial judge. Under these circumstances, where
the scales are more or less equally balanced, as
they appear to be in this matter I must go on to
consider the so-called balance of convenience or,
put another way, the respective degrees of irrepa
rable harm or non-compensable damages which
would be sustained to the parties by granting or
refusing the order requested.
In this respect, the present matter appears to
require somewhat different considerations than the
normal or more usual application for an interlocu
tory injunction. Convenience, or rather inconve
nience, which can frequently be measured in terms
of money damages cannot be measured by that
method for either side in this case. The plaintiffs
see themselves suffering "considerable serious and
irreparable prejudice" by reason of the defendants'
refusal to broadcast the advertisements. On the
other hand the defendant CTV claims the ads take
portions of the debate out of context and would
thus damage its credibility as a news gathering
operation, would create a precedent which would
allow anyone to use its news material and would
jeopardize the potential for debates in the future.
When weighing the balance of convenience I am
entitled to take into account the reality, if such be
the case, that the grant or refusal to grant an
interlocutory injunction would be tantamount to
giving final judgment against one of the parties.
As Lord Diplock said in NWL Ltd y Woods,
[1979] 3 All E.R. 614 (H.L.), at pages 625-626:
The nature and degree of harm and inconvenience that are
likely to be sustained in these two events by the defendant and
the plaintiff respectively in consequence of the grant or the
refusal of the injunction are generally sufficiently dispropor
tionate to bring down, by themselves, the balance on one side or
the other; and this is what I understand to be the thrust of the
decision of this House in American Cyanamid Co y Ethicon
Ltd ([19751 1 All ER 504, [1975] AC 396).
After considering the position of both parties I
find that the degree of harm and inconvenience
that are likely to be sustained by the plaintiffs in
consequence of my refusal to grant the relief
requested exceed considerably the same conse
quences to the defendants by reason of my grant
ing the relief and, accordingly, I find that the
balance of convenience lies in favour of the
plaintiffs.
If I refuse to grant the relief requested the
defendants will have succeeded in this action
because there is not sufficient time between my
order and the election to have my refusal set aside
following a trial or, I suspect, practically speaking,
on appeal. My refusal would deprive the plaintiffs
absolutely of the right to which they have shown
they are prima facie entitled. The inability to have
broadcasted what they consider to be essential
political advertisements, should it subsequently be
determined they have the right to do so, could not
be compensated for in damages, nor could that
inability be in any way rectified by a subsequent
successful judgment after trial.
On the other hand to grant the order requested,
while repugnant to the views of the defendants,
does not give rise to the equivalent mischief or
harm. I understand the defendants' objections to
broadcasting the plaintiffs' advertisements to be
more concerned with matters of principle which
will continue to exist after the election. The prece
dent which they fear will be created by granting
the order requested will last only as long as this
decision has not been reversed either on trial or
appeal.
I see no reason why CTV's credibility as a news
gathering operation should be damaged by my
order. In the first place it has acted swiftly and
vigorously in opposing it and, no doubt, if it con
tinues to see it in that light it will act just as
assiduously to have it reversed at trial or on
appeal. If it is successful in accomplishing this, any
credibility which it had lost would, in my view, be
more than restored.
The defendants' objection to broadcasting the
plaintiffs' advertisements on the grounds that they
take Mr. Turner's statements out of context to
create a particular partisan impression of the
debate or that it would not be in the public interest
to broadcast the advertisements is a judgment
made by CTV to effect a form of censorship on the
advertisements. Whatever may be the merits of
these jugdments on the part of the defendant CTV
I do not see them as being relevant to a consider
ation of the balance of convenience between the
parties in this action.
Accordingly I will order that the defendants
CBC and CTV begin forthwith to broadcast the
plaintiffs' advertisements which form the subject
of this application in accordance with the schedule
agreed to between the parties. In this respect I
appreciate that even with the best of goodwill on
the part of the defendants to comply with the
terms of my order it may take two or three days
before the first advertisement can be broadcasted.
The term "forthwith" in the order accompanying
these reasons is used with that limitation in mind.
At the request of counsel for the defendant
Global Communications Limited and with counsel
for the plaintiffs consenting, the defendant Global
Communications Limited is not included in the
terms of this order.
Costs will be costs in the cause.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.