Wendy Serres is a first year JD candidate at Osgoode Hall Law School and currently enrolled in the course Law & Social Change: Law & Music, in Winter 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice.
DJs throughout Canada may well rejoice when they hear that Parliament is proposing to make unauthorized mash ups legal. Bill C-32 has been tabled in the House of Commons to update Canada’s Copyright Act. As currently drafted, the amendment will include parody, satire and user-generated content (UGC) under the umbrella of fair dealing.
But professional DJs beware: the “mash up provision” appears under the heading “Non-commercial User-generated Content”. This means that you can use parts of classic songs in a mash up without permission from the copyright owner – subject to certain restrictions. As the heading indicates, one of the key restrictions in the mash up provision is that you must not benefit commercially from your UGC. You can share your mash up with friends. You can use it for school credit. But as soon as you start to profit commercially from your work the new provision will no longer protect you and you may face litigation from the copyright owner.
But even the mash up provision may not make it through the House as is. This week the Canadian Bar Association (CBA) published their submission on Bill C-32. They are the most recent to join the line of organizations responding to Parliament’s proposed changes to copyright in Canada, including the Canadian Federation of Students (CFS) and the Alliance of Canadian Cinema, Television and Radio Artists (ACTRA). Each of these three organizations has recently had something to say about the UGC provision, and not surprisingly they do not all agree on what needs to be done.
The CFS submission takes the perspective of creators of derivative works. As user-creators the CFS touts the new provision as “an innovative proposal that will encourage creativity inside and outside of the classroom” while at the same time “legalis[ing] practices that are already commonplace” (p 5). They support the provision as written, although stipulate that a fairness test might be used to prevent abuse of the UGC exception to copyright infringement.
On the other end of the spectrum, ACTRA representing the performers (and often creators), is calling for the mash up provision to be struck completely. In its submission, ACTRA claims that allowing unauthorized UGC would remove both economic and moral rights from artists.
Falling in the middle of these views, the CBA presents a more moderate owner/creator perspective than ACTRA, yet agrees by and large with the user perspective of the CFS. Because of the multiple interests the CBA represents, its submission likewise presents multiple perspectives on the proposed amendments to the Copyright Act and makes separate conclusions for each set of interests being represented.
As previously noted, the user rights argument from the CBA parallels the views expressed by the CFS. Although there is no mention in the CBA’s submission of a fairness test being applied, it does contemplate the ways that the UGC provision supports creativity. The CBA’s user rights perspective also points to the fact that the provision allows only non-commercial derivative work which will not impact the owner/creator financially.
On the flip side, the owner/creator voices of the CBA would like some clarification about how dissemination services (like YouTube) are to be regulated in order to keep UGC non-commercial. The CBA also warns that mash ups may lead to legal issues not contemplated by the drafters of the legislation.
The above organizations have different messages and it is now in the hands of the legislative committee to weigh their various submissions while they reexamine Bill C-32’s provisions. Whether the CFS, ACTRA or the CBA will be the most influential voice remains to be seen, but for good or for ill the decision rests with the government. DJs will have to wait to see if non-commercial mixing becomes legal and, if it does, they may want to start lobbying for a similar exception for commercial uses so that professional DJs can enjoy the same liberties as amateurs.
5 Responses
Great article Wendy. I put a link to it in a blog post here: http://artideasandbrands.wordpress.com/2011/06/24/scratchin-and-mixin-sampling-and-arranging-musical-works/
Hi Wendy, great article.
I’m from Australia and currently studying the interaction between moral rights and mash-up music. In your legal opinion, does the bill contravene these rights in its application to non-commercial mash-up music?
Do artists still (even if now non-commercial mash-ups are deemed not to infringe copyright) have a moral rights claim?
Thanks,
Steph
Hey Steph,
I’d be happy to provide some thoughts on your question.
In Canada, at the time of the publication of this article by my colleague, two prominent collectives ACTRA and SOCAN argued against the UGC provision on precisely those grounds – it infringes the moral rights of creators.
However, the considerations of this provision are much broader than this. Dr. Sundara Rajan wrote a good article (during the period of Bill C-32) in Dr. Geist’s edited text ‘From Radical Extremism to Balanced Copyright’ that sets out some important Canadian issues concerning moral rights that ought to be addressed – waiver, difficulty in the burden of proof, etc.
Perhaps a more interesting question is whether the UGC provision could possibly be said to violate the Three-Step Test. Prof. Ricketson has commented that the “legitimate interests of the author” include both pecuniary and non-pecuniary interests. Yet, the Test appears to be structured to better accommodate and protect pecuniary exploitation by rights-holders (different from creators).
Good luck!
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