Teresa Scassa - Blog

The Manitoba government has recently enacted the Personal Information Protection and Identity Theft Protection Act (PIPITPA), which has yet to come into force. This statute is private sector data protection legislation which will is presumably intended to apply in place of the federal Personal Information Protection and Electronic Documents Act (PIPEDA) to private sector activity within provincial jurisdiction. In order to effectively substitute for the application of PIPEDA, the PIPITPA would need to be declared…

[The following is the text of my presentation at the launch conference for the edited collection of papers: The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, Michael Geist, ed., University of Ottawa Press, 2013. The conference took place on October 4, at the University of Ottawa. My chapter in the book, titled “Acknowledging Copyright’s Illegitimate Offspring: User-Generated Content and Canadian Copyright Law”, can be found here.]

The recently revised Copyright Act contains many new exceptions to copyright infringement. Some of these involve additions to existing exceptions (expanding fair dealing to include education, parody and satire, for example), and quite a number of them are exceptions that normalize activities that used to be considered copyright infringement in spite of the fact that everyone engaged in them (like home recording of TV shows, making backup copies of software, or ripping one’s CD collection so that it can be played on an mp3 player).

Today I will talk about one of the new exceptions that is noteworthy because unlike these other exceptions it is not about modernization of the law through updating or adapting the law to well established contexts. The exception for User Generated Content addresses the evolving and emerging ways in which works are created and disseminated in our contemporary digital culture. This exception is situated in the context of a strong collection of SCC jurisprudence that directs courts to consider the importance of balancing creators’ rights against the public interest in innovation, creativity and the broad dissemination of works.

During the long progress of this bill into law, the UGC exception was dubbed the YouTube exception, in reference to what was perhaps its paradigmatic activity. For many, it was the idea that (as happened in the US) a mother might be sued for infringing copyright in music playing in the background of a home video posted to YouTube featuring a cute toddler dancing around, that justified the enactment of the UGC exception.

Yet while this may have been the paradigmatic activity (something that would not have been captured by fair dealing exceptions), the UGC exception is intriguing because it is rather breathtakingly broad in terms of the kinds of activity to which it might apply. From one perspective it is a licence to build on the works of others; from another it is a potentially sharp curtailment of the scope of a copyright holder’s ability to control the use of their work. In the end, the scope and importance of the UGC exception may come down to how its limiting provisions are interpreted: and in this regard, the direction already charted by the SCC in its recent copyright decisions will likely have great bearing.

So – what is UGC? UGC flows from the twin phenomena of deprofessionalization and disintermediation. With the now widespread availability of sophisticated, user-friendly, and increasingly portable technologies and software, ordinary individuals, with no specific training are able to engage in a broad range of activities –creating films, recording or remixing music, compiling information, mashing up different works or different types of works – that were once the exclusive domain of professionals. At the same time, digitization, the internet and the rise of social media have made it possible to disseminate user-created works to a global audience without the need of the traditional intermediaries for content publication and distribution. The result is a profoundly different environment for the creation and dissemination of “works” of all kinds within a rapidly transforming normative environment.

What is new here is not the fact that “users” are generating new content using existing works – people have always done this, and it has been either tolerated (or undetectable) when carried out for private purposes. What is new is the scale of this activity, along with its social, political and economic consequences.

The concept of layered rights in a work is well-established in copyright law. For example, the Copyright Act specifically recognizes the independent copyright that will arise in a translation of a work, notwithstanding the fact that the making or authorization of a translation is one of the exclusive rights of the copyright holder. Musical arrangements are also recognized as works independent of the original (although, if unauthorized, they may also be infringing). The whole category of adaptations of works (in the US, derivative works) recognizes that new works can be created from pre-existing works; but that these works may infringe on copyright in the original.

What the UGC exception injects into this concept of layered rights is the possibility that someone may create a new work using a pre-existing work in which copyright subsists, AND that they may disseminate it widely, so long as they do so non-commercially, and so long as this does not (and this is the tricky part) have a “substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work.” The exception offers more than fair dealing, in that the purposes for the creation of the UGC are not restricted in any way. In a sense this exception seems to acknowledge that in contemporary society, people interact with digital content in a wide variety of ways, and that such interactions do serve some public purpose, whether it’s the fostering of creative self-expression, the creation and dissemination of new knowledge, or simply a now accepted way of participating in culture in an interactive manner.

What I would like to do now is look at the potential scope and limitations on the UGC exception, keeping in mind the approach laid down by the SCC to addressing the balance of competing interests in copyright law.

To qualify as UGC for the purposes of this exception, the author of UGC must use an existing work – with no limitations on kind or category; and they must use it to create a new work in which copyright subsists.

This is a very broad definition with the potential to include all manner of works. Leaving aside dancing toddlers, the exception is broad enough to include things such as an unauthorized translation of a work, and a compilation (which can be a work that is comprised of other works). (Of course, it is much broader than this, but I have chosen these two examples to illustrate the sheer scope of the definition of UGC). Indeed, if you take the example of a compilation, it would seem that the UGC exception might finally make legal in Canada the much loved but always illegitimate mix tape – a compilation of songs chosen by its maker for their particular significance or in the hope that they will impress or seduce the recipient. None of the other exceptions – the one for private copies, the exception for copying music onto blank audio recording media, or even fair dealing – would seem to legitimate the act of creating a compilation of musical works for the purpose of giving it to someone else; but the UGC exception seems not only to include such a creature within the definition of UGC, it also legitimates the non-commercial distribution.

Many creators already draw upon pre-existing works in the generation of new works. The UGC “User” is different from other creators largely because the works she draws upon to create her own works are still protected by CR and, unlike other creators who make use of the works of others, she may lack the economic ability to obtain a licence for her use of the work. Unlike other creators, her immediate expressive goals may also be served by non-commercial dissemination.

It will be interesting to see whether the implicit view that UGC is somehow parasitic in nature colours how UGC is dealt with by the courts in cases where the source work or works are ones in which the subsistence or scope of copyright might reasonably be challenged. Thus, for example, assume that the UGC work is a mashup of data, or an app that makes use of data from other sources. Providers of data, including governments at all levels in Canada, tend to assert copyright in data in rather broad terms (not all government data, for example, is made available under an open licence, and even the open licences assert copyright in the data sets), so the claim to copyright is there, even though it may be either unsupportable or rather limited in scope. If the creator of a work that is built upon data from other sources decides to commercialize their work, rather than continue to disseminate it at no cost, it will be interesting to see how the UGC exception is reconciled with the use of works in which – to borrow the language of the USSC, copyright is “thin”. In other words, will the focus ultimately be on the legitimacy of the use, or will it be on the legitimacy of the copyright claim? What I wish to underline here is the potential of the UGC exception to push users towards non-commercial dissemination in contexts where commercial dissemination is a real option. One would hope that the strong line on balance taken by the SCC would direct courts towards a careful examination of the underlying copyright claims before shifting their attention to the limits of the exception.

In order to further explore the strengths and weaknesses of this exception and its relationship to other provisions in the Copyright Act, I am going to use an example as an illustration.

A translator typically uses a work protected by copyright as a basis for their translation, which is a work in its own right. The amateur and unauthorized translator used to infringe copyright (unless somehow fair dealing could be asserted) when they created their translation.

Let us assume that Gail is a skilled freelance English/Estonian translator in Canada. She is a huge fan of an obscure Estonian author’s first novel. That author’s market share in Estonia is already small, his publisher, who owns all of the rights in his works, sees no market for an English translation of the book. In her spare time, Gail translates the work and publishes her translation on the Internet, where it begins to develop a following.

To qualify for the UGC exception, the use of the new work or the authorization of its dissemination must be solely for non-commercial purposes. The concept of non-commercial is a tricky one, and it will be interesting to see how it is interpreted. If Gail is not selling copies of her translation on the Internet, this would appear to be non-commercial. On the other hand, if her skilful translation brings attention to her and results in her receiving translation contracts is there now a commercial dimension to her posting of the work? Does it make a difference whether she posts the translation on Facebook or Wattpad, or whether it is placed on her personal website which she also uses to advertise her services as a translator?

The non-commercial restriction is only for the creator of the UGC. Dissemination of the UGC may be carried out for the commercial purposes of the intermediary. Thus it is not an objection to argue that YouTube or Facebook are commercial enterprises. Their role in disseminating the UGC does not disqualify the UGC from the application of the exception. Of course, this creates an interesting dynamic, since it means that SOMEONE may be commercially exploiting the original copyright protected work – if not, perhaps the creator of the UGC. The growing popularity of Gail’s translation may drive users towards a website that features advertising content. This indirect commercial exploitation may frustrate copyright owners. Yet as the SCC has now repeatedly confirmed, the broad dissemination of works is a public good, and one against which owners’ rights must be balanced. Since advertising is a part of the business model for sites that aggregate and disseminate UGC, this commercial dimension may be tolerated as a necessary evil in order to achieve broad dissemination.

Perhaps the most open-ended limitation on UGC – and one which is most problematic for those who wish to rely on the exception is that which precludes uses that do not “have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work”. Unfortunately, this is “shut down” language. It is open-ended enough that it might not only discourage a creator of UGC from disseminating work online, it might be the meat of a very intimidating cease and desist letter. In the case of Gail’s translation, it may be that the growing popularity of the work as a result of her translation means that there is now a market for an English-language translation of the book – although this market is now adversely affected by the availability of Gail’s free translation. As a non-commercial content creator is unlikely to have pockets deep enough to withstand the threat of litigation, this kind of language may unfortunately gut much of what is promising and interesting about this exception.

It is also not clear whether the moral rights provisions of the Copyright Act will operate to limit the creation and dissemination of UGC. The UGC exception provides that qualifying UGC will not infringe copyright, but it is silent as to moral rights. Where the UGC can be argued to result in a mutilation or modification of the original work to the prejudice of the honour or reputation of the creator, then it will be in violation of the creator’s moral right to integrity. Assume that the original author of the work feels that Gail’s translation creates an entirely different mood to the book than that which he believes he created in his own work, or that she has chosen to have the characters speak in a particularly informal kind of English which he feels is completely inappropriate. Jurisprudence on moral rights is relatively uneven and unhelpful; it is not clear how the UGC exception, the need to create a balance of rights, and the moral rights provisions will be reconciled with each other.

Finally, it is worth asking what the relationship is of UGC to the fair dealing exception. The Supreme Court of Canada has now sent repeated strong messages about how the user’s right of fair dealing should be interpreted and applied.

UGC has an interesting relationship to fair dealing: Not all UGC will fit within the fair dealing exceptions, but some will. For example, UGC that is parodic or satirical may also qualify as fair dealing. As the SCC has already told us that fair dealing is always available as an exception notwithstanding other applicable exceptions, one can assume that a parody or satire that is exploited commercially and that therefore does not qualify for the UGC exception, might still be considered under the fair dealing provisions. Gail might perhaps argue that the translation of the work was for the purposes of the potentially very broad category of “education”; she was hoping to educate the public about a talented but obscure Estonian writer. In that case, the fact that the work may have an adverse effect on some potential market for the work is only one of the factors that would be taken into account by a court in an assessment of fair dealing.

Although there is much interpretive uncertainty surrounding this new exception, what the messages sent by the SCC in the copyright pentalogy do is signal an approach to the interpretation of all of the copyright exceptions in a manner that achieves a proper balance between the competing public interests served by copyright law. In particular, the emphasis on the importance of the dissemination of works – including and perhaps in particular their dissemination over the internet, will signal to other courts the need to take into account the value and centrality of this mode of communication in contemporary society, as well as the shifting dynamic of the creation and dissemination of works.