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LEGAL REPOR T: INTELLECTUAL PROPERTY In some areas Canada's laws should be more liberal, and in others needs to be more restrictive. BY GL ENN KAUTH Push and pull B of copyright reform y definition, parody involves the imitation of someone else's work. So how do you square that notion with copyright laws that by their nature restrict such mimicking? That's a key question in a case likely to make its way to trial in the Supreme Court of British Columbia between CanWest MediaWorks Publications Inc. and two Vancouver residents, Gordon Murray and Carel Moiseiwitsch. It stems from the 2007 publication of a fake Vancouver Sun that mocked the alleged pro-Israeli bias of the paper and its parent com- pany, CanWest. Now, after dealing with a long list of procedural motions, Canwest Mediaworks Publications Inc. v. Murray is set to see Palestinian rights activists Murray and Moiseiwitsch face allega- tions in court of copyright and trade- mark infringement, as well as the tort of passing off. The case comes as the federal government gets set to take yet another stab at revamping Canada's copyright laws after it wrapped up consultations last month. A new law is an opportu- nity, some lawyers say, for Canada to update provisions within the Copyright Act to make it clear that parody is legal. For Roanie Levy, general counsel for Access Copyright, the issue isn't that laws don't allow for parody; rather, she says, they don't expressly state that they do. "The law is not clear. In my opinion, [an exception for parody] is there. But we don't have a lot of case law on it in Canada," she says, calling for a "specific, limited exception" for such works. Other lawyers, however, are more vocal about the need for a change, something they say would address long-standing restrictions on freedom of speech since the Federal Court in Compagnie Générale des Établissements Michelin v. National Automobile, Aerospace, Transportation and General Workers Union of Canada ruled against the workers' unflattering use of the tire company's mascot during an organizing drive in the 1990s. The judge at the time rejected the union's argument that par- ody fell under fair-dealing defences for criticism in the Copyright Act, a ruling that sparked concerns the courts would take a restrictive approach to allowing satirical works. But since then, a review of fair-deal- ing exceptions to copyright infringement by the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada has led others to conclude that the justice system will permit parody. That case dealt with exemptions for research, but in calling for a more liberal interpretation of fair dealing, the ruling appeared to open the doors more widely to parody. Ron Dimock, an intellectual property lawyer with Dimock Stratton www. C ANADIAN Law ye rmag.com OC T O BER 2009 37 KATHERYN JANKOWSKI