Speaker's Corner: Where are the clowns?

After intense parliamentary debates spanning six years, the Copyright Modernization Act finally came into force in June 2012. While many of the changes to Canada’s copyright laws had been hotly contested, one widely embraced provision was the expansion under the fair dealing provision to include parody and satire.

By way of background, the fair dealing exception is a defence to copyright infringement that permits the use of original works in certain cases, without the need to obtain permission from the copyright holder.
Under s. 29 of the act, fair dealing had previously only included the right to use original works without permission for research and private study, criticism, review, and news reporting purposes. The addition of satire and parody to this provision was generally seen as a positive step in the evolution of Canadian copyright law. By adding these new categories of fair dealing, this brought Canadian copyright law more in line with that of the United States, where the courts have considered parody a viable defence under its equivalent fair use doctrine for decades.

Why was it important for Canadian copyright fair dealing laws to be on par with those in the U.S.? As a legitimate form of criticism, parody allows for the creation of works that ridicule other famous works or subjects, with few legal constraints (subject to libel considerations, of course). This leads to comedic works, which, although controversial, are topical and compelling.

For decades, the U.S. entertainment industry has created irreverent comedy (think Saturday Night Live, late-night talk shows, and edgier animated television series such as The Simpsons, South Park, or Family Guy). The prevalence of this type of irreverent humour in America may in large part be due to the fact that U.S. copyright law has long recognized parody as a fair use defence.

Works of parody quickly become fodder for Facebook feeds (the present-day equivalent to “water cooler talk”). The buzz that ensues creates a high demand for such works, not to mention a better outlet for comics who don’t like to play it safe. So, where parody forms part of pop culture, more and better employment opportunities abound. Presumably, the expansion of the fair dealing exceptions in 2012 to include parody and satire should have resulted in more diverse comedic works in Canada in recent years.
However, from my point of view, this change has yet to materialize. And it’s not because we don’t have the talent here to begin with. If the widely held belief that Canadians by their nature are too polite, that we simply are not disposed to creating such controversial content, then how does one explain the sheer quantity of talented comedians who have flocked to the United States for the past several decades?

It is astonishing to see the number of legendary Saturday Night Live cast members who have hailed from Canada. Aside from the show’s creator, Lorne Michaels, a Toronto native, previous SNL cast members include Dan Aykroyd (Ottawa), Paul Shaffer (Thunder Bay), Martin Short (Hamilton), Norm MacDonald (Quebec City), Mike Myers (Scarborough) and the late, great Phil Hartman (Brantford). And aside from SNL, many other Canadians, such as Brandon, Man.-born Tim Long, have succeeded behind the scenes as writers on The Simpsons and Late Show with David Letterman. In more recent years, Toronto comedian Samantha Bee became a regular correspondent on the Jon Stewart Show.

In his 2014 article for Splitsider.com, a web site dedicated to comedy, on the subject of Canadian comedians who emigrate to the U.S., writer Christian Borys stated, “At some point, every comic serious about their career makes the move to either New York or Los Angeles.”

Clearly, the Canadian economy has suffered as a result of its historical aversion to produce works of parody and satire.  Quite apart from the economic benefits that would result from works based on parody and satire, the form, of course, has many important non-commercial benefits. At a time when news is available around the clock, when political and social controversies are just a tweet or Instagram photo away, the power of parody and satire becomes even more significant. Take, for example, Saturday Night Live’s response to the Twitter campaign #OscarsSoWhite that ignited after this year’s Academy Award nominations were announced. For the second year in a row, there was a lack of racial diversity among the nominees. In the face of the controversy, some celebrities spoke out against the protesters, claiming that the nominations were simply based on merit. With its trademark sardonic humour, SNL thumbed its nose at those celebrities who derided the protesters, with a comedic sketch that mocked the parade of Caucasian supporting actors who stole nominations away from the central black leads. Another SNL sketch, the outrageous “Racists for Donald Trump” campaign ad that aired recently, served as comic relief for those who have watched in horror as Trump’s bid for a U.S. presidential nomination rolls on. These send-ups offer biting commentary on serious issues. They can influence one’s opinion on a heavy subject in a way that rational discourse and news editorials may not be able to do. Certainly, Canada has enough of its own political and social foibles to warrant a separate platform for this kind of transformative programming.

It’s not as though works based on parody and satire have never succeeded in Canada. Vintage TV series such as The Kids in the Hall or SCTV could go toe to toe with SNL any day, in my view. Those television programs include some of the most intelligent, Canadian-centric political and social commentary in the history of the medium. The expansion of the fair dealing provision should have resulted in a new generation of Eugene Levys, Catherine O’Haras, Andrea Martins, and Bruce McCullochs by now.

If we want to nurture and retain comedic talent, the Canadian entertainment industry needs to start utilizing the benefits afforded by the parody and satire fair dealing exceptions under the Copyright Modernization Act. Until then, we will continue to watch by the sidelines as American sketch comedy programs, animation series, and late-night talk shows flourish on the backs of our home-grown talent.

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Lynn Burshtein is a media and entertainment lawyer practising in association with Inter Alia Law. Her practice includes contract negotiations, copyright and trademark licensing, and marketing and advertising law matters.