Bill C-11[1] provides for a new exception to infringement for user-generated content (UGC), along with new grounds for fair dealing. These provisions, combined with a strong and clear message from the Supreme Court of Canada’s pentalogy of copyright cases regarding users’ rights and the copyright balance, signal a new paradigm for copyright law in Canada—one that tolerates a much greater level of interaction with copyright-protected works.
This chapter considers the shape Parliament has given to the UGC exception and examines its place within the scheme of the Copyright Act, particularly in light of recent Supreme Court of Canada jurisprudence. The chapter begins with a discussion of the definition of UGC, followed by an analysis of the statutory exception. It next considers the relationship between the UGC exception and the fair dealing exception. Although opponents might characterize both the UGC exception and expanded fair dealing as unjustifiable encroachments upon the rights of copyright owners, this chapter argues that these exceptions reflect the shifting realities of cultural production and dissemination.
1. Defining User-Generated Content
User-generated content, or UGC,[2] is a term that has been used to describe a fairly wide range of Internet-based activity from blogging to file-sharing.[3] Gervais, admitting the difficulty of defining a term that covers such a broad range of conduct, has characterized it as “content that is created in whole or in part using tools specific to the online environment and/or disseminated using such tools.”[4] Hilbert defines it not so much in terms of what it is, but in terms of who makes it, writing that UGC is “used to describe activities engaged in by those typically seen not as cultural producers but cultural consumers.”[5]
Although these characterizations emphasize different features of UGC, together they highlight the profound transformations wrought by the digital information context. On the one hand, digital technologies empower users of digital works to interact in new ways with copyright-protected content; at the same time, the proliferation of new and modified content from non-professional sources has undermined the traditional content intermediaries, creating a radically transformed context for the dissemination of information and cultural content.[6] It is precisely this new paradigm that underpins the recent Supreme Court of Canada copyright jurisprudence.[7]
The expansive definitions of UGC have led to further attempts to categorize UGC for the purposes of legal analysis. Trosow et al[8] offer a taxonomy for UGC that features three broad categories: creative content, small-scale tools (such as apps) and collaborative projects (such as wikis). In this taxonomy, the focus is on function, and it is certainly worth reflecting upon the broad range of purposes served by UGC. UGC may be innovative, creative or informative. Indeed, in fields of activity where UGC has had an impact on knowledge generation and dissemination, the focus of inquiry has been on the substantive issues around the quality and reliability of the new content, rather than on issues of copyright.[9] Copyright lawyers employ a different taxonomy. Gervais offers a taxonomy based on the nature of the content in relation to copyright principles. He would divide UGC into three broad categories[10]: content authored by users,[11] content derived by users[12] and content copied by users.[13] This taxonomy emphasizes the different ways in which individuals now engage with digital works and digital modes of dissemination. The focus on the characterization of the user’s activity, as opposed to, for example, the form of the work, is echoed as well in the Supreme Court of Canada’s emphasis in SOCAN v Bell Canada [ Bell ] on the importance of the perspective of “the ultimate users” and their purposes in relation to the works at issue.[14]
The UGC exception in Bill C-11 is oriented only toward the second category in Gervais’ taxonomy: content that is created by users and that incorporates, to a greater or lesser extent, copyright works by others. It is therefore this category of UGC that will be the focus of this chapter. Because this chapter is about intellectual property law, it is the copyright lawyers’ taxonomy that is adopted. Nevertheless, it is important to note that UGC in its many forms is already becoming accepted in different fields of activity as a source of information and creativity, and inquiries in these fields have moved ahead to issues of how best to use, integrate and derive benefit from these new modes of knowledge creation.
Featured here is the first part of a book chapter written by Teresa Scassa, Canada Research Chair in Information Law and Professor at the University of Ottawa. The full chapter is available for download here. The book is entitled “The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law” edited by Michael Geist, and is available for purchase or download here.
[1] Bill C-11, An Act to amend the Copyright Act, 1st Sess, 41st Parl, 2011. At the time of writing, the Bill has been passed into law, but its coming into effect has yet to be proclaimed. This is a matter of some concern. It is possible that ongoing industry opposition to provisions such as the UGC exception and expanded fair dealing is delaying and may derail the coming into effect of these amendments. They cannot, however, derail the fundamental transformations that have made addressing UGC and its relationship to copyright law essential.
[2] Note that the OECD has used the term “user-created content” or “UCC” to describe the same phenomenon. See: OECD Directorate for Science, Technology and Industry, Committee for Information, Computer, and Communications Policy, “Participative Web: User-Created Content” (12 April 2007) <http://www.oecd.org/internet/interneteconomy/38393115.pdf>.
[3] Daniel J Gervais, “The Tangled Web of UGC: Making Copyright Sense of User-Generated Content” (2009) 11 Vand J Ent & Tech L 841 at 842 <www.jetlaw.org/wp-content/journal-pdfs/Gervais.pdf>. See also Steven Hetcher, “User-Generated Content and the Future of Copyright: Part One – Investiture of Ownership” (2007-08) 10 Vand J Ent & Tech L 863.
[4] Gervais, supra note 4 at 842. Note that the UGC provision in Bill C-11, supra note 2, is not limited to digital works and digital dissemination. Hetcher, supra note 4 at 873, also argues that digitization is a key element of UGC.
[5] Debora Hilbert, “Mass Culture and the Culture of the Masses: A Manifest for User-Generated Rights” (2009) 11 Vand J Ent & Tech L 921 at 924 <www.jetlaw.org/wp-content/journal-pdfs/Halbert.pdf>.
[6] See e.g. Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (New Haven: Yale University Press, 2006) <http://www.benkler.org/Benkler_Wealth_Of_Networks.pdf>; Cass R Sunstein, Infotopia: How Many Minds Produce Knowledge (Oxford: Oxford University Press, 2006); Mary WS Wong, “‘Transformative’ User-Generated Content in Copyright Law: Infringing Derivative Works or Fair Use?” (2009) 11 Vand J Ent & Tech L 1076 at 1077.
[7] For example, in Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 at para 30, [2012] 2 SCR 283 <http://www.canlii.org/en/ca/scc/doc/2012/2012scc35/2012scc35.html> [Rogers], the Court emphasizes the need to look beyond the “technicalities of the alleged infringer’s chosen method of operation”, and to focus on the substance rather than the form of online activities.
[8] Samuel E Trosow et al, “Mobilizing User-Generated Content for Canada’s Digital Advantage” (1 December 2010) <http://ir.lib.uwo.ca/fimspub/21/>.
[9] In the context of Volunteered Geographic Information (VGI), a subset of UGC, see, for example: Christopher C Miller, “A beast in the field: The Google Maps mashup as GIS/2” (2006) 41:3 Cartographica 187 <http://utpjournals.metapress.com/content/j0l053012262n779/fulltext.pdf>; Michael F Goodchild, “Citizens as sensors: The world of volunteered geography” (2007) 69:4 GeoJournal 211; Sarah Elwood, “Volunteered Geographic Information: Key Questions, Concepts and Methods to Guide Emerging Research and Practice” (2008) 72 GeoJournal 133.
[10] Gervais, supra note 4.
[11] This type of content could include reviews of products or services, blog postings and photographs uploaded to social networking sites. (See e.g. Len Glickman and Jessica Fingerhut, “User-Generated Content: Recent Developments in Canada and the U.S.” (2011-12) 12:6 IECLC 49 at 49).
[12] This would be new content created through the modification of existing works.
[13] Note that others have argued as well that user-copied content takes on a new significance in certain contexts, and can thus also pose challenges for copyright law and policy. For example, the copying of copyright-protected content for viral dissemination on the Internet may be a way in which important ideas are shared more broadly than the copyright owner might wish (see e.g. Hilbert, supra note 6 at 937-38). Such issues are interesting and important, but are beyond the immediate scope of this chapter.
[14] Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36 at para 34, [2012] 2 SCR 326 <http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/9996/index.do> [Bell].