The ��emphasizes the importance of developing a��“cultural��policy��instrument��that,��through�������𲹰�,�������徱���ٲ������������Ի����ڲ�������rules,��supports creativity and innovation.” ��To help lawyers and judges keep in line with the goals of balance in copyright, and to achieve clear and comprehensive laws, it is important that we examine two vital questions concerning the UGC provisions.

1.��What exactly��is��a “commercial purpose”?

One of the factors that places a limit on UGC is the condition that the new work is done solely for non-commercial purposes (an undefined concept in the Copyright Act).��To limit the uncertainties created by s.29.21(1)(a), it is therefore crucial to look beyond the words (or lack thereof) of the provision itself, and instead look toward a purposive and holistic approach to the UGC exception.

, an Associate Professor at the University of Western Ontario, argues that in order to help overcome ambiguity, the UGC provision should be interpreted in the same context as the fair dealing provision.

What we can learn from incorporating a fair dealing analysis to the UGC exceptions is that we are to define commercial purposes on a continuum (recall that in ��the court endorsed a non-restrictive test to assess the user's purpose). Moreover, the facts of the CCH decision involved some “commercial” element since the materials were distributed to lawyers in the course of their professional employment.

Viewing s.29.21(1)(a) and s.29.21(d) together, we should therefore understand commercial purpose as a matter of degree. In doing so, we leave open the possibility for new-works to have at least some commercial element, so long as this element is not substantial.��

2. How can we define a “substantial adverse effect” on an existing or potential market?��

s.29.21(d) requires that the new-work shall not have a substantial adverse effect, financial or otherwise, on an existing work.��This condition raises several difficult questions. First of all, do the words “or otherwise” extend to include an author's moral rights? If so, wouldn't including moral rights in user exceptions to infringement be legislatively redundant? (Moral rights run parallel to economic rights, and can be exercised regardless of copyright exceptions.)

It is also unclear what a substantial adverse effect on a (potential) market means.�� s29.21(1) describes UGC as a “new work” or other subject matter in which copyright subsists. This may indicate that the courts consider UGC to be an original work, possibly attracting its own copyright protection.

When interpreting s29.21(1)(d), it may be useful to look to the American decision of ��to understand that the market of a new work is necessarily distinct from the market of the original.��For example, music covers disseminated on YouTube can be understood as a separate market from existing works. Rather than competing with an existing work, it is possible to argue that by transforming an existing work into a new work, a different market and/or audience is thereby created.

We must nonetheless recognize that the author of the new work may invariably compete with the market of the existing author. Take for example Justin Bieber’s early YouTube cover of Chris Brown’s song “With You.” It can safely be said that these two authors are now competitors in the same pop-music market.

Panellists, Professor Trosow and legal practitioner Marian Hebb, alluded to the possibility of a remuneration scheme whereby revenues of commercially successful UGC is allocated between authors, users, and disseminators. This��arrangement of revenue allocation through collective societies may be a useful option to consider. Of course, fairly compensating artists is an essential objective, but we must also consider that this may inhibit users from creating UGC due to fears of taxation.

Conclusion

Before users begin to fully enjoy the benefits of this new UGC provision, it is my opinion that a number of clarifications related to definitions must be sorted out. First, I think the scope of “commercial purpose”��should be limited to works which have a substantial commercial element. Purposes should be viewed on a continuum, giving flexibility to UGC provisions by permitting some nominal commercial success.

In situations where a UGC competes substantially with an existing work, I think we should consider setting up an allocation model whereby authors of existing works are remunerated by intermediaries and authors of new-works. Borrowing from the analysis in Campbell, we should be careful not to interpret s.29.21(1)(d) too broadly since the market of UGC works and existing works can be understood as distinct from one another.

While this provision is certainly a step toward a more progressive, user-friendly model, I think we have some work to do before the benefits of the UGC exceptions come to fruition.

��

Mona Zarifian is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

The post User Generated Content: Generating More Questions than Answers appeared first on IPOsgoode.

From the perspective of the networks, this service could potentially destroy "the fundamental underpinnings of the broadcast television ecosystem” said Fox representative .�� Their main concern is that, from the perspective of an ad company, people who own DISH DVRs won’t be watching any ads in their recorded shows with this feature.�� As a result, ad companies might not be so willing to pay for ad space during the broadcast of these shows.�� Since selling ad space is a network’s main source of revenue, they stand to lose a lot of money if advertisers are concerned about the AutoHop feature.

That reasoning however, might be somewhat flawed. ��While it is true that the AutoHop feature allows a viewer to skip ads on recorded programs, it does not affect television viewed in primetime.�� That same point is one made by (senior vice president of programming at DISH) when he said, “AutoHop needs to be put in perspective: the majority of our viewers watch their primetime shows live or during the same evening -- the time that is most valuable to advertisers. We chose to incorporate AutoHop as a next day feature and only if enabled by the consumer”.�� Since the new feature only applies to recorded programs, it isn’t fundamentally different from viewers choosing to fast-forward through advertisements manually.�� “Customers have been skipping commercials since the birth of the remote control” says and he asserts that this new feature will just make it easier for viewers to do what they have been doing for ages.

With both parties looking for a ruling as to the legality of this feature, we should examine the potential success of their claims.�� First off, the networks will need to prove that commercials are a part of the compilation work that is their broadcast.�� A compilation work is defined in as “a work formed by the collection and assembling of pre-existing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship”.�� In this case, the pre-existing materials would be each separate advertisement and the show itself.�� Networks would have to argue that the arrangement of the program and the ads is sufficiently to be considered a separate work apart from the individual materials. Secondly, the networks have to prove that the rights they sold to DISH were to retransmit and make copies ONLY of the compilation work that is their broadcast, and not of the show without commercials.�� This argument’s success will depend on the wording of the network’s contract with DISH. ��Thirdly, the networks would have to prove that the AutoHop feature violates one of the rights stated in section 106 of U.S. copyright law.

Fortunately for DISH, even if the networks manage to succeed in establishing the first two elements, the third is an issue, because the AutoHop feature doesn’t create a of the broadcast.�� All the feature does is automatically skip parts of the fully copied broadcast; a copy which DISH has been licensed to create. The networks will be left with trying to claim that a viewer watching an AutoHopped recording somehow falls within the category of a public performance.�� This is an argument which will likely fail.

It may not come to a decision however if the networks choose to approach the problem in a different way.�� Billionaire suggests that the networks should propose a settlement where DISH can pay them a premium and air shows without commercials.�� This way, the networks might recuperate any lost advertising revenue and the viewers can get TV shows without commercials.�� , a media analyst suggests that DISH might be willing to disable the feature if the networks are willing to reduce the cost of DISH airing their shows.�� It seems like negotiation may be a better option for these networks, because the legal ruling likely won’t be in their favour.��

Adam Stevenson is a JD candidate at Western University

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