Ian Cooper: I'm an entertainment lawyer. TIFF's defence of Hamas copyright is bunk

National Post

12 hours ago

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But surely a film festival that's hosting the likes of Sydney Sweeney, Angelina Jolie, Keanu Reeves and Daniel Craig can keep filmmakers and audiences safe.
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As has been widely reported, Hamas terrorists filmed themselves committing their October 7 atrocities. The footage, some of which is included in the film, would no doubt create cognitive dissonance for those lightly informed TikTok users who weren't wearing a keffiyeh on October 6, 2023 and haven't taken one off since October 8.
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But it has also been shared publicly by the Israeli government, and was used as part of the Nova Exhibition, an immersive experience that was held in a Toronto warehouse this past spring. If some enterprising terrorist was looking for his day in court, it would have happened by now.
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Nevertheless, TIFF claimed to be concerned about the provenance of the footage and whether licenses had been obtained.
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Their legal argument seems to be that the terrorists are the copyright owners of their snuff films, and their intellectual property rights are protected under Canadian law via multiple copyright treaties.
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On its face, the argument is risible and the kind of thing that makes ordinary people loathe lawyers who can't help but find the nearest pin on which to dance.
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But even a copyright stickler would have trouble buying it.
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Putting aside obvious defences to a claim of copyright infringement, such as fair dealing, there is serious doubt as to whether Gazans have standing under Canada's Copyright Act.
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In 2014, the United Nations announced the State of Palestine, which doesn't currently exist, had become signatory to multiple human rights treaties. Nothing prevented it from also becoming signatory to an international copyright agreement like, for example, the Berne Convention. Foreign authors acquire rights under Canadian copyright laws solely via copyright treaties, absent which, they have no rights to assert in a Canadian court.
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Moreover, there is a strong likelihood that many of the terrorists who participated in the massacre have since been killed in the war with Israel. So whatever rights they might have had transfer via Gaza's laws of wills and estates. Good luck chasing down those heirs for a film clip license.
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After significant backlash, TIFF changed its tune on Wednesday evening and announced its legal team would 'work with the filmmaker on considering all options available.'