Is it “legal” to post your fan fiction tribute to Star Trek online? Or to post a video of your children cavorting to a pop song? The recent amendments to Canada’s Copyright Act have, among other things, added an exception to the basic rules of infringement for user-generated content (UGC). According to this exception, user-generated content is some form of work (literary, artistic, dramatic or musical) that would be eligible for copyright protection in its own right, and that is built upon or integrates the copyright protected work of another. This would clearly seem to cover both of the examples given above. Recognizing that individuals now interact with digital works for all kinds of private and expressive purposes, the federal government has moved these activities from the realm of copyright infringement, and legitimized them – so long as the resultant UGC is non-commercial and has no substantial adverse effect (financial or otherwise) on the original.
The UGC exception is not the only new exception in the Act to normalize activities which, prior to the amendments, were considered infringing. For example, it used to be an infringement of copyright in Canada to record television shows to watch at a later time, and to make copies of legally acquired works so that they could be stored in electronic form, put on an MP3 player, or used for some other private purpose. These were activities in which Canadians routinely engaged, and sensibly, new exceptions now render them non-infringing. The UGC exception is also not the only new exception to carve out more room for expressive interactions with works. The fair dealing provision, which used to apply only to the fair use of works for the purposes of research, private study, criticism, comment or news reporting, now also permits the fair use of works for the purposes of education, parody or satire. The UGC exception thus fits within a framework of exceptions that normalize how people commonly interact with works and that encourage creative engagement with works – within certain limits.
During the debates on the amendments to the Copyright Act, the UGC exception was referred to as the “You Tube” exception, because it seemed that the paradigmatic act contemplated by this section was the home video posted on You Tube that incidentally incorporated a popular song. Yet the exception has potentially enormous breadth: there are so many ways in which existing copyright works can be incorporated into new works. The exception permits not just the making of these ‘mashups’, it permits the non-commercial dissemination of the new work. Translations and adaptations of existing works would appear to meet the definition of UGC. Compilations (mix tapes, anthologies, etc) would also seem to qualify. Those who create maps using the data sets of others and post them online may also find comfort in the UGC exception. Perhaps unwittingly, this exception appears to give great scope for the creation and distribution of works based upon the work of others. Of course, other than being non-commercial, the dissemination must not have no substantial adverse effect (financial or otherwise) on the work(s) incorporated into the UGC – it remains to be seen how much limiting effect these ‘weasel words’ will have.
[For a more detailed discussion of the UGC exception in Canada’s Copyright Act, I invite you to read my chapter on the subject in Michael Geist’s new collection of essays on copyright law, titled The Copyirght Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law. Published by the University of Ottawa Press, this book and all its chapters is also available free online under a Creative Commons licence.]