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culture

Fair Dealing for Sun Media

Comedian Michael Balazo likes making fun of the Toronto Sun. When he did, Sun Media told him what he was doing was illegal.

Toronto’s Michael Balazo has been in Halifax since November 2011, working as a writer on CBC’s This Hour Has 22 Minutes. Since he left town, he’d stopped posting on his satirical blog, Toronto Sun Cover Reviews, where for years he’d been writing select reviews of the covers of, in his words, “Canada’s most reactionary/hysterical newspaper.”

Then last week, a short email from a Sun Media representative led to a phone conversation, and as a result, Balazo pulled more than two years worth of posts off his blog—prompting an outcry from friends, fans, and fellow comics upset over the perceived censorship.

Balazo’s just the latest writer to run afoul of Sun Media’s heavy-handed interpretation of Canada’s Copyright Act; they’ve been pressuring websites and blogs to remove what they view as infringements on their copyrighted content, even in cases where the use seems legally justified.

“Last Wednesday, I got an email asking me to contact them about a ‘legal matter,’” Balazo told us over the phone from Nova Scotia. “So I called their Director of Electronic Information, who told me that the front pages’ images were copy-written [sic] and owned by the Toronto Sun, and since I hadn’t asked permission, they were illegally posted on my blog, and I had to take them down.”

Balazo immediately complied, not wanting to risk the implied legal action. “The Copyright Act was repeatedly referenced, and not being familiar with the Act at the time, I didn’t argue. I removed the posts until I could figure out what my options were. There were no threats, but I was told what I had done was illegal, so I connected the dots—that if I didn’t comply, there’d be legal ramifications.”

Shortly after, Balazo posted on Twitter and Facebook about the situation. “There was a flood of emails, and comments, and Tweets of support, telling me not to do it. Apparently, if you post copy-written material for the purpose of criticism or review, so long as you cite the source, it’s considered ‘Fair Dealing‘. I don’t think you could go to Toronto Sun Cover Reviews and not know where those front pages were coming from. It just seems to me that they didn’t like that I was making fun of them.”

We called Julie Kirsh, Sun Media’s Director of Electronic Information, who confirmed she’d spoken with Balazo, and emphasized Sun Media’s sole concern was the use of the images of Toronto Sun front covers. “We had absolutely no issue with the content on Mr. Balazo’s website,” said Kirsh. “I read his blog and I thought it was fun—sometimes when you’re criticized, it can be wonderful.” But in her opinion, the blog’s use of the images was a clear copyright violation.

“What he was doing was very funny—but he cannot put our front covers up on his blog. The Copyright Act of Canada states you cannot take the intellectual property of someone else and use it for your own purposes,” said Kirsh. “In my job, I do sometimes handle legal matters, and we have a corporate lawyer who backs me up.”

Kirsh came across Balazo’s blog while enforcing Sun Media’s legal position on another website that’d posted a Toronto Sun cover image. “I saw a BlogTO post, and it referred me to his blog.” As for BlogTO, “I had no problems with them—they said, ‘Of course, we don’t post anything that doesn’t belong to us,’ and took it down.”

When informed that many people conversant with the Copyright Act had told Balazo his use of the cover images was considered well within the scope of the fair dealing clause, Kirsh was adamant: “It’s not covered by the Copyright Act. You should refer them to a lawyer who knows the Act—most of them do.”

So we did. We contacted Derrick Chua, a prominent entertainment lawyer and theatre producer, to ask how the Copyright Act applied to Balazo’s case. While stressing he wasn’t party to or directly privy to any exchanges between Sun Media and Balazo, based on our recounting, Chua was confident that Balazo’s use of the Toronto Sun cover images was protected under fair dealing. “If he is publishing a screen grab of their cover for the purpose of criticism or review, and he is stating the source and the name of the author of the work [in this case, the Toronto Sun], then I would think he is fine.”

An excerpt from Canada's Copyright Act.

The fair dealing provision is what allowed Torontoist to post a screengrab of a NOW Magazine article last week, when we criticized their photoshopped image of Mayor Rob Ford holding a gun to his head. It’s also what allowed the Sun to do the very same thing themselves when they took, without seeking permission, an illustration of ours—one about Sun Media itself—and republished it both in print and online. They weren’t just grabbing our work for any generic purpose: they used it in the context of an article that discussed Torontoist and the content of the illustration itself. Because they used an illustration of ours in a story about us, and because they identified us as the source of the illustration, they didn’t need permission; we quite agree with them that it was fair game. (Incidentally, the coverage they were discussing? Our nomination of Sun Media as a Villain of 2011.)

“There are all kinds of people who take articles and images that don’t belong to them and post them on their websites,” Kirsh told us. (She’s quite right; the flip side of all this is that the internet is rife with re-purposed and uncredited images and content, and websites engaging in content ‘recycling.’) “The Sun has clear legal wording on our website stating ‘no commercial usage is permitted.’” She continued, “[Balazo] could make an arrangement with Sun Media. We do that all the time—license our content.”

When we asked him, Balazo recalled that clearly, with a laugh: “I was ‘invited’ to ask for permission to use their copy-written content in the future.”

In addition to the fact that Balazo’s blog was non-commercial and contained no ads, we doubt many writers would be comfortable if they had to ask a corporation for permission to use their material to criticize them—which is exactly why the fair dealings provision exists. If you publish something, the moment you put it out into the world it becomes a legitimate topic of conversation, a subject for other people to discuss—and those other people are within their rights to explain what they are discussing by showing the source material they are commenting on.

Balazo’s not eager for a legal battle, but given all the assurances he’s been given that the Sun Media’s interpretation of the Copyright Act is faulty, he’s considering restoring the blog posts. “I’d like to put them back up. A lot of it was pretty silly—jokes about my own life, my relatives, etc.—but it all used the covers as a jumping off point for my own work.” And since that work made specific references to the Sun‘s often “hysterical” covers, to write about them without posting those images wouldn’t be fair to anyone.

UPDATE, FEBRUARY 15, 12 PM: Several hours after this article was posted, Michael Balazo posted to his blog for the first time in months, and shortly after restored all content—cover images included. BlogTO hasn’t yet done the same for their post, though they’re hinting they might follow suit.

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