The User-Generated Content Exception: Moving Away from a Non-Commercial Requirement

Introduction

In December 2006, Time magazine celebrated “You” as the person of the year.[1]  In the article, Lev Grossman stated that our history is no longer shaped by a few famous men but by all of us who are part of the new Web.[2]  He applauded the fact that over the past year:

We made Facebook profiles and Second Life avatars and reviewed books at Amazon and recorded podcasts. We blogged about our candidates losing and wrote songs about getting dumped. We camcordered bomb runs and built open-source software.[3]

This contagious enthusiasm for user-created works has dampened somewhat over time as we have come to understand the repercussions of some of our activities online. Amateur users are increasingly ignoring copyright law in order to create content online. This is extremely problematic from a public policy perspective since a whole generation of users cannot be deemed criminals. Canada has taken a significant step in the right direction by enacting s. 29.21 of the Copyright Act. It is the first country in the world to make user-generated content an exception to copyright infringement.[4]  This user-generated content (“UGC”) exception allows a person to use copyright-protected works to create new content for non-commercial purposes. However, one major flaw in the exception is that it conflates amateur creation with non-commercial use. In the current digital sphere, amateur user-generated content is becoming more and more sophisticated and may have many indirect commercial benefits. The distinction between amateur non-commercial use and professional commercial use is quite arbitrary and cannot sustain itself in modern technological practices. This essay will argue that the proper focus of the user-generated content exception should be on the level of originality of the UGC and its effect on the source material as opposed to its non-commercial or amateur nature. In most cases, if the new content has copyright subsist in it, then it will not have an adverse impact on the source material.

Section 29.21 of the Copyright Act states:

Non-commercial User-generated Content

29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if
(a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;
(b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;
(c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and
(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.

Definitions
(2) The following definitions apply in subsection (1).
“ intermediary” means a person or entity who regularly provides space or means for works or other subject-matter to be enjoyed by the public.
“use”
« utiliser »

“use” means to do anything that by this Act the owner of the copyright has the sole right to do, other than the right to authorize anything.[5]

This section allows the use of legitimately acquired copyright-protected work for non-commercial purposes that do not affect the market for the original material. It can be argued that the UGC exception will not be litigated over much since s. 38.1(1)(b) of the Copyright Act limits statutory damages for non-commercial works up to $5,000.[6]  Plaintiffs alleging copyright infringement for non-commercial purposes will not begin to recoup their court costs in such an action. However, the UGC exception could be seen in court when there is a disagreement as to whether the use was commercial or not. This point will be expanded further in this essay. It could also be seen in cases when an artist is looking for an injunction as opposed to monetary damages. Lastly, artists concerned with moral rights are not looking for monetary damages but instead want to salvage their reputation. All such instances will give courts an opportunity to elaborate on this section in the future and figure out the subtleties of its functioning.

The Government of Canada website gives the following examples of the nature of content that would fit within this exception: “making a home video of a friend or a family member dancing to a popular song and posting it online, or creating a ‘mash-up’ of video clips”.[7]  This shows that Parliament had amateur UGC in mind when it created this exception. One can see that a harmless video such as that would create no problems for the original author. No one will choose to watch that over the original song. However, user-generated content is becoming increasingly more sophisticated and commercially viable. More complex content can even threaten the original product on which it is based. In order to ensure that this does not happen, Parliament has limited this exception to non-commercial uses. However, I will argue that there are other ways to ensure that without limiting creativity to non-commercial use.

User-generated content can be broken down into three categories: user-authored content, user-copied content, and user-derived content.[8]  User-authored content is not problematic at all from a copyright perspective; If you take vacation pictures and upload them onto Flickr, or if you broadcast your innermost thoughts through Twitter, you are not infringing any copyright laws. User-copied content is also somewhat straightforward; If you engage in file-to-file sharing of copyrighted content for free or upload a camcordered version of a movie that is out in theatres, there is no doubt that you are infringing a whole set of copyright laws. The complications arise with user-derived content. This is content that is created by using pre-existing copyrighted works and transforming, adapting or appropriating them in some way. Examples include fan fiction (literary works which incorporate a character, settling, or plot from a pre-existing work), mashups (songs made by combining pre-existing music or sound recordings), machinima (films made within videogames using the game interface), game modifications (software modification that alters existing games), and map applications (small-scale programs that map geo-spatial information onto pre-existing data sets). Section 29.21 of the Copyright Act covers this third category of works, user-derived works.

User-derived works incorporate a pre-existing, often copyright protected, work into a new work. One famous example in the emerging genre of “mashup” is the one-man band called Girl Talk.[9]  Girl Talk essentially remixes and manipulates music samples from other artists to create his own brand of music. His album Night Ripper, remixes between 200 to 250 samples from 167 artists belonging to all sorts of genres from Elton John to Notorious B.I.G.[10]  The financial cost of clearing rights from so many famous musicians would be unaffordable for an artist like Girl Talk. Similarly, many applications (“apps”) are designed by professional programmers in order to perform a specific task within a particular hardware but increasingly more successful iPhone apps rely on user-generated content. Apps like Friend Finder take pre-existing copyright-protected information such as maps and superimpose additional information onto them that would be valuable to a potential customer.[11]  It is quite possible that an amateur app creator may not clear rights beforehand when designing an app. Problems also occur with Machinima where a user manipulates the first person point of view within a videogame to create a computer-animated film.[12]  The user incorporates videogame’s graphics, characters, and sound within their own film without clearing any rights from the game’s producers.[13]

UGC seems somewhat parasitic on the surface since it relies on other’s works but it can have a whole range of benefits from information gathering, political rallying, social support, or criticism. Certainly parliament seems to agree with this statement as they have chosen to protect such content. Fan fiction at its most basic is homage to the pre-existing work it is based on but at its most sophisticated, it can be a criticism of the pre-existing work. Alice Randall, in Wind Done Gone, recasts the American novel Gone with the Wind by Margaret Mitchell, from the viewpoint of the slaves.[14]  Likewise, Peggy Ahwesh’s machinima, She Puppet, which was created within the videogame Tomb Raider, provides a feminist critique of both Tomb Raider and the male dominated world of gaming in general.[15]  All UGC at its core is a creative endeavor and encouraging such creativity is at the base of any copyright regime.

Most UGC is created without the permission of those who hold copyright in the underlying works because of the sheer cost and logistical difficulty of obtaining licenses. Prior to the UGC exception, users were expected to seek permission from the copyright holders unless a defence such as fair use applied. In cases where a large number of works were used to create user-generated content, there were significant transactional costs involved in determining, contacting, and negotiating with rights holders. Daniel Rosen states that Electronic Dance Music producers, “are sometimes not aware of the exact source of their samples, as they build libraries over time with thousands of audio samples from various places including copy-right protected sound recordings, sample packs, and self-constructed samples.”[16]  What is simply industry practice within the Electronic Dance Music community could have created a serious risk of infringement from a copyright perspective. Moreover, in cases where a large corporation held the copyright over the source material, the cost of litigation, or even the potential for litigation either had a major chilling effect or led people to ignore intellectual property rights. Attempts to clear samples are typically more difficult for artists who lack fame or fortune. The drum and bass artist Mocean illustrates this: “I tried for nine months to clear the Mahalia Jackson sample. When I finally got a call back, they’re like, ‘We want six cents on a record and $10,000 in advance.’ I said, ‘You know, I am going to sell, like 2,500 records. You’re crazy! My album budget was $40!”[17]  Before the advent of s. 29.21 of the Copyright Act, industry practices and amateur use was clearly out of step with copyright law.

Featured here is the Introduction section of Mariam Awan’s winning article in the JD Category for Canada’s IP Writing Challenge 2015. To read the full article, click here.  Mariam Awan is JD Candidate at Queen’s University, Faculty of Law.

[1] Lev Grossman, “ You—Yes, You—Are TIME’s Person of the Year” Time (25 December 2006), online: TIME <http://content.time.com/time/magazine/article/0,9171,1570810,00.html>
[2] Ibid.
[3] Ibid.
[4] Fraser Turnbull, “The Morality of Mash-ups: Moral Rights and Canada’s Non-commercial User-generated Content Exception” (2014) 26: 2 IPJ 217 at 221.
[5] Copyright Act, RSC 1985, c C-42, s 29.21.
[6] Copyright Act, RSC 1985, c C-42, s 38.1(1)(b).
[7] What the Copyright Modernization Act Means for Consumers, online: Government of Canada <http://www.ic.gc.ca/eic/site/crp-prda.nsf/eng/rp01186.html>
[8] Daniel Gervais, “Derivative Works, User-generated Content, and (Messy) Copyright Rules” (2012) 16: 1 Copyright & New Media L Newsletter 7 at 7.
[9] Lawrence Lessig, Remix: Making art and Commerce Thrive in the Hybrid Economy, (New York: Penguin Press, 2008) at 11.
[10] Ibid.
[11] Teresa Scassa, “Acknowledging Copyright’s Illegitimate Offspring: User-Generated Content and Canadian Copyright Law” in Michael Geist, ed, The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (Ottawa: University of Ottawa Press, 2013) 431 at 434.
[12] Christina J Hayes, “Changing The Rules of The Game: How Video Game Publishers Are Embracing User-generated Derivative Works” (2008) 21: 2 Harv JL & Tech 567 at 568.
[13] Ibid.
[14] Gervais, supra note 8 at 8.
[15] Graham Reynolds, “Towards a Right to Engage in the Fair Transformative Use of Copyright-Protected Expression” in Michael Geist, ed, From “Radical Extremism” to “Balance Copyright”: Canadian Copyright Digital Agenda (Toronto: Irwin Law, 2010) 395 at 400.
[16] Daniel Rosen, “Electronic Dance Music, Creativity, and User-generated Content–a Canadian Perspective” (2014) 26: 2 IPJ 153 at 161.
[17] Ibid at 162.