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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.

Comments

  • Pension Plan Puppets

    I’m absolutely SHOCKED that the Toronto Sun doesn’t know a thing about The Copyright Act. They stole a couple of translations that we did on our site and when contacted we were told to ‘get over it’. Wish Balazo would have given them the same reply.

    • Anonymous

      They know about copyright. They used scare tactics. If he knew what he was doing, he would have challenged them, and received no response in return.

  • Anonymous

    Does the Sun know they’re the laughing stock of the entire city? And maybe the entire country, and probably the whole publishing industry.

    • Anonymous

      The sun is only the laughing stock of the “lefties”. Normal taxpayers think it is hard hitting, well researched, detailed investigational news.

      I suggest you go read a Sue-Ann Levy column, pick up some epithets, and apply them to yourself until you learn your lesson.

      • http://www.iterativearts.com bud latanville

        you’re kidding, right? Sue-Ann Levy is a fungus on the backside of journalism.

      • sullivans

        They are also completely ignorant of the proper use of Copyright law.

      • http://piorkowski.ca qviri

        And also it has boobs. Hard hitting boobs.

      • DemocritusII

        ha ha ha ha ha! That’s hilarious. Sue Anne Levy? An overpaid typist with a muck rake.

      • Testu

        Wait, am I a normal tax payer or some kind of special tax payer? I pay taxes in this city and I don’t think that at all.

        I think the Sun is cheap opinion rag that uses intentionally inflammatory headlines to drive newsbox sales. They do have amazingly well researched sports coverage though, so there’s that I guess. Also, the sunshine girl.

        The greatest joke the Sun has ever pulled is putting that huge image of the Gutenberg press over their front door. Because when I think of revolutionary achievements in communication, I think of the Sun.

    • http://www.iterativearts.com bud latanville

      they’re only a laughing stock in the “Life is a comedy to those who think, and a tragedy to those who feel,” kind of way. :)

      [do I need to attribute that quote? I don't remember where I heard it. Please don't sue me!]

    • Arsondude

      Who are “normal tax payers”? I don’t even know what to say to you – I feel sorry for you.

  • Nitpicker

    “copyrighted”. not “copywritten”. thankyou.

    • Keithtalent5000

      It was a quote.

    • http://twitter.com/torontoist Torontoist

      The uses of “copy-written” were all within quotes, but we’ve now indicated that they have been noticed, though are still accurate to the original speaker.

      Thanks for bringing this to our attention.

    • DemocritusII

      The Toronto Sun appears to know all about something called ‘Copywrit’, which, I’m sure they would wiggle, is not be confused with ‘copyright’. Na na na boo boo. We didn’t lie and cheat, we only SEEM to lie and cheat.

  • Alex

    I can’t wait for Mr. Balazo to re-post his content. So funny! Bring it back! Bring it Back! (x100)

  • Anonymous

    Bullies and liars. They should probably fire their legal team too, if they don’t know fair dealing when they see it.

    • http://paul.kishimoto.name Paul Kishimoto

      The legal team is retained to make interpretations of the law that give business advantage. Correctness is secondary (tertiary?)

  • http://twitter.com/BradBrisco Brad Brisco

    If only there were some sort of Internet Archive – a “wayback machine” if you will – that would allow Michael Balazo to repost some of his fair dealing criticisms.

    • Nick

      Sadly, the Wayback Machine doesn’t have his covers and comments due to a robots.txt file on his site.

      • https://twitter.com/#!/gracingthestage Steve Fisher

        As I understand it, Balazo didn’t delete his posts, just rendered them all “invisible.” So it should be relatively easy for him to restore them.

    • junctionist

      Google Cache works.

      • Anonymous

        Then Balazo’s work needs to be reposted and redistributed until the Sun gets a clue.

  • David Toronto

    How long will it take for this to be on the Sun News(?) Channel
    so that they may bleat about it endlessly?

  • http://twitter.com/mikeykolberg Michael Kolberg

    #StopSunsorship

  • http://twitter.com/mikeykolberg Michael Kolberg

    They know exactly what fair dealing is, they were just counting on Mike not wanting to get into a legal dispute. It’s bully tactics.

    • http://www.iterativearts.com bud latanville

      exactly, it’s “justice by economic attrition.”

  • Anonymous

    “The Copyright Act of Canada states you cannot take the intellectual property of someone else and use it for your own purposes”
    Wrong. The excerpt shows that you can, in pretty clear terms.

  • http://www.iterativearts.com bud latanville

    I’ve tried reading Sue-Ann Levy, and recently at that: she’s not clever, she’s not useful, she’s not interesting. I call three strikes, and would like to see her put down her bat and leave the field…

    • http://paul.kishimoto.name Paul Kishimoto

      If the federal Conservatives had their way, three strikes would get her life imprisonment :)

  • http://piorkowski.ca qviri

    So, did you ask Kirsh if the Sun considers reprinting your graphic from the Villain article fair dealing?

  • sullivans

    Not surprising that the SUN would manipulate the Copyright Act to suit their needs, no matter how wrong they are. The images can and should be reposted – fair dealing for criticism or review is quite clear and not open to the SUN’s own interpretation.

  • DemocritusII

    The National Post once printed a front page headline arguing that all Muslims should be sent back to where they came from. I had a copy of it in my hands, I was speaking to their national editor, and he was denying that what I had in my hands existed. I went down the road to a paper box and found that only the very early edition printed the odious headline. Even after having FAXED a copy of the headline, some Winston Smith of an editor was denying it ever happened. (Incidentally, the Canadian Muslim Association had no comment…) So, the Sun has competition in the bid for most offensive headlines. But the Sun is simply the Post for dummies.

    • Anonymous

      Only the Post is a complicated matter, because they actually do better arts coverage than any of the other papers, and their local Toronto coverage is pretty excellent as well. The Post does a lot of really excellent work. You just have to get past Conrad Black’s fussy old-man dispatches from the jailhouse and some of the other opinion writers.

      • Squaretriangle

        Yeah, mostly the inane Zionist shit.

  • http://joeclark.org/weblogs/ Joe Clark

    Don’t use a screenshot to excerpt legislation marked up in HTML. Even horrific HTML is better than a picture.

    Also, Balazo need to grow a spine. He’s legally in the right and should have immediately published the newspaper’s threats.

    • Tillerman

      armchair wizardry

  • junctionist

    This Sun couldn’t burn anyone.

  • http://www.facebook.com/people/David-Dineen-Porter/507107053 David Dineen-Porter

    Re post them Mike.

    • https://twitter.com/#!/gracingthestage Steve Fisher

      He has!

  • Megfraser

    I’m going to start reviewing the Sunshine Girl.

  • Anonymous

    The thing is guys, Toronto Sun knows about copyright. That is why they will not be handing Torontoist (St. Joseph Media network) take-down notices, or any kind of legal documents to have the screenshots of the newspapers taken down.

  • http://www.facebook.com/people/Landon-Fisher/100001800437555 Landon Fisher

    This is my favourite website for Facebook Cover Photos: http://coverphotobook.com//

  • http://www.seanward.net Sean Ward

    Always breaks my heart when I see someone doing something cool just collapse at the first threat of “legal action”. Aren’t comedians supposed to have balls and push the envelope?

    Damn it, I hate seeing the bad guys win – even if it’s only a fleeting victory.

  • PKP

    If it wasn’t for that Cheap A$$hole PKP running the show. You would see far better content instead of Conservative drivel the spews from the paper. and SunTV, man that is beyond a joke!