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 .�� 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 91��ɫ: 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.

The post The User-Generated Content Exception: Moving Away from a Non-Commercial Requirement appeared first on IPOsgoode.

True, Canada's recently enacted exception for 'Non-commercial User-Generated Content' ( Copyright Act) allows dissemination of derivative works yet admonishes that:

[T]he use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes.

However, as Teresa Scassa notes in her chapter “” in , section 29.21(1)(a) does not stop disseminators from capitalizing on the creative output by fans.

Furthermore, according to the recent annual release by the International Federation of the Phonographic Industry (IFPI) of their , UGC fan music videos are generating more money for the copyright owning recording industry than official music videos.^[1] This can in part be explained by the increased interest in the works by growth of the fan base not as passive consumers but rather by actively engaging with the copyright protected works. Allowing the audience to feel as though they can contribute by participating in the creative process is a powerful tool that a few large industries have only recently caught on to. Moreover, the more popular a work (even a derivative one) becomes, either via pay-per-click or page views, the more income generating ad revenue is earned. More ads viewed equates to greater revenue for the advertisers and hence greater justification for those companies to want to continue to purchase more online ad space on the intermediary’s website. Some intermediaries that have become known for their vast dissemination of UGC works have established these profit sharing incentives regarding works that bring in a lot of internet traffic, especially for those that go viral.

According to the IFPI report “YouTube is the biggest single access point to music for consumers internationally, with one billion users worldwide”.^[2] On YouTube, Google searches for videos which incorporate copyright protected songs. They then inform the record companies of this video. But, rather than US takedown notices interfering with the rights of UGC creators, copyright owners of pre-existing works find that it is more advantageous and profitable to get a piece of the action by monetizing the work. The record companies, instead of trying to have the videos taken down, appear to be licensing the video and then making “ad dollars” from the number of views. It is from this process that record companies are making more money from the UGC than the official music record. In so doing, copyright owners likely do not feel as threatened by the popularization of any derivatives from their works while UGC creators are kept from contravening subsection 29.21(1)(a) of the Copyright Act or having to argue fair dealing/use.

There is a pragmatic realization that demonizing and increasing restrictiveness of copyright law against users who appropriate the works of others, be it solely for enjoyment of the work or to make use of it in a UGC context, ; less content gets distributed among the public (which has negative societal effects) and there is less respect for the legitimacy of copyright holders leading to even more appropriation which cannot realistically be stopped.

Furthermore, the popularity that comes from fandom and UGC communities also informs the larger consuming public of what original content is trending among fellow community members and can act as advertising for the copyright owner.

It appears that this symbiotic relationship between users who want to express themselves personally and the copyright owners (and intermediaries who stand to gain from providing a forum in which users may have access to the fresh or at least alternative perspectives that UGC has to offer) promotes the purported purpose of copyright - to incentivize creativity.

While this can be a positive business model, benefiting all parties concerned, I would like to note a concern which arises. The Copyright Act legislatively permits, as part of a recognized greater social good, UGC creators to appropriate and use works of others in whole or in part when making solely non-commercial derivative works. Although some may describe these UGC creators as “amateur” in a pejorative way, in many cases these amateurs, while consuming society’s cultural works, produce high quality mash-ups, remixes and a host of other derivative works, copyrightable in their own right but typically not greeted with the respectable title of “author”. However, when a UGC work is being uploaded, the uploader agrees to the non-negotiable click-wrap contract (which stipulates that unless they own all elements with the work being uploaded the uploader is not entitled to enable revenue-generating ads). Should this necessarily give the copyright owner of the existing work the right to muscle-in or impose their influence by obstructing the viewers’ ability to fully enjoy the presentation of the UGC work without attention-distracting ads in or around the work? Furthermore, if the UGC generates huge hits, benefiting the host site and advertisers, it raises the question as to whether the UGC creator should be expected to forego any such benefits in order to avoid the risk of liability. I realize that the current system is a licence-based economic model contractually formulated to support the dissemination of UGC derivative works which may otherwise be taken down, and thus is arguably still a better alternative. However, in utilizing this business model, there should still be respect of the UGC work and its author when placing any ads. The Online Etymology Dictionary defines “amateur” as:

1784, "one who has a taste for (something)," from French amateur "lover of," from Latin amatorem (nominative amator) "lover," agent noun from amatus, past participle of amare "to love". Meaning "dabbler" (as opposed to professional) is from 1786.

If we consider it from its origins, doing something for the love of doing it would be a seemingly appropriate context for the rationale of the UGC exception. On the other hand, would it be fair to deny amateur creators the ability to gain any profit from the skill and judgment of their original (albeit derivative) work while permitting others to free ride on the commercial value of their works? This goes to whether Parliament’s restrictively phrased ‘solely non-commercial’ is appropriate in light of the way users actually engage with works and whether an appropriate balance of interests is achieved.

The post UGC Exception: For the Love of Amateur and the Profit of Everyone Else appeared first on IPOsgoode.

Entitled "Can the Canadian UGC Exception Be Transplanted Abroad?", this article builds on the excellent����on the international law aspects of the Canadian UGC exception chaired by Prof. David Vaver. The panel also featured presentations by��Barry Sookman,��a partner of the law firm of��McCarthy Tétrault, and Prof. Joost Blom of the Faculty of Law of the University of British Columbia.

Although the panel presenters examined the international law aspects of section 29.21, including its compliance with the Berne Convention��and the WTO TRIPS Agreement, one issue that has not been covered much is whether this exception��would serve as an ideal model for other jurisdictions that are now undertaking digital copyright reform.��Using Hong Kong as an example, my forthcoming article will argue that the Canadian UGC exception, with appropriate modifications, can be—and should be—transplanted abroad.

This article begins by��discussing the efforts by the Hong Kong government to transplant copyright laws from abroad as part of its digital copyright reform. It further examines the benefits and drawbacks of legal transplants.��Using the US Digital Millennium Copyright Act of 1998 as a point of comparison, this article argues that the Canadian UGC exception provides a timely and attractive model for legal transplant.

The article then��discusses specifically the UGC exception proposal I submitted to the Hong Kong government. Focusing on two major aspects of legal transplant—modelling and adaptation—it discusses the policy choices the submission considered.��It also addresses the key objections raised by copyright holders and their industry groups, in particular their claim that the Canadian UGC exception may not��comply with the TRIPS Agreement.

This article concludes by recounting the Hong��Kong��government’s recently-released����on the parody consultation, which sadly echoed the concerns raised by copyright holders and their industry groups.��Although I strongly disagree with the government's preliminary analysis of the proposed UGC exception, this article takes the government's international compliance concerns seriously and offers additional modifications to further adapt the proposed transplant.

To begin with,��the government could easily build the relevant WTO standards into the proposed UGC exception, similar to the existing provisions in the Hong Kong Copyright Ordinance and the laws of other jurisdictions. The government could also introduce a fair dealing exception for UGC. If it takes the position that fair dealing exceptions meet international standards, a fair dealing exception for UGC will clearly meet those standards.

In addition, the government could introduce a quid pro quo arrangement that allows authors and copyright owners to use the internet users’ derivative creations for predominantly non-commercial purposes. If significant commercial interests are involved, the government could also introduce a profit-sharing arrangement that requires internet users and intermediaries to provide equitable remuneration to copyright owners. Levy systems, for example, have been widely practiced in Canada, Europe, the United States and other parts of the world.

Even if the government remains reluctant to legalize the creation of UGC, in light of the ongoing, unsettled international copyright policy debate, the government could introduce laws to prevent internet users from being criminally prosecuted or sued in civil actions. The government could also institute a five-year sunset period for the proposed exception��if it considers a permanent exception unsuitable for a rapidly changing licensing environment.

In sum, regardless of whether one agrees with the Hong Kong government's��highly restrictive interpretation of the��TRIPS Agreement, many ways still exist to address its international compliance concerns.��From the standpoint of examining the expediency and viability of transplanting the Canadian UGC exception abroad, it is also important to separate drafting problems from modelling problems.��A good model of legal transplant should not be abandoned when adaptations can be made to improve the transplanted law.

Peter K. Yu, an affiliated scholar of IP Osgoode, holds the Kern Family Chair in Intellectual Property Law at Drake University Law School in the United States. Born and raised in Hong Kong, he serves as the general editor of��The WIPO Journal��published by the World Intellectual Property Organization and chairs the Committee on International Intellectual Property of the American Branch of the International Law Association.

The post Transplanting the Canadian UGC Exception to Hong Kong: Part 2 appeared first on IPOsgoode.

Welcoming Remarks

Practical Examples of UGC

Legal Aspects of UGC

Specific UGC Legal Aspects

Contractual Practices

International Law Aspects

Concluding Remarks

The post UGC under Canadian Copyright Law Symposium Videos appeared first on IPOsgoode.

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.

��

Bell's Perspective – Adapting to UGC��

The first speaker, Tanya Woods, is the resident copyright specialist for BCE Inc. (Bell TV, Bell Mobility, Bell Canada, etc.). Because the company is a massive distributor, intermediary, content broadcaster and creator, of the Copyright Modernization Act (the “A����”) presents a unique challenge for a business that acts both as a copyright user and copyright owner.

Woods began her presentation with a discussion of what UGC means; referring to how users draw on new technologies to express themselves and that this category of works includes blogs, social media, and potentially the news. In examining section 29.21, Woods made an interesting observation - the provision does not specify that UGC has to be digital, which implies that analog forms of UGC may also be covered by the exception.

To appropriately navigate section 29.21, Woods advises to follow two objectives: (1) respect legal obligations and (2) engage your viewers.

As an example of respecting legal obligations and engaging viewers, Woods referred to Bell's developed for the 2012 Olympic games. The app allows users to record a short video which, when watched, plays back in slow motion with the theme to Chariots of Fire as the background music. This app engaged Bell's audience and encouraged the creation of UGC, while also respecting the legal obligation to properly licence the music and clear the rights to the Chariots of Fire theme.

Woods then offered practical advice for businesses entering the UGC space, with some general advice applicable to users as well:

• Businesses and users have to be aware that for UGC to fall into the exception, it has to be non-commercial;
• Users should also be mindful of the Terms and Conditions of UGC sites, because you may lose your intellectual property rights to your material depending on where you post it; and
• For businesses actively engaging with their audience on social media like Facebook and Twitter, it's important to realize that bad UGC is inevitable (such as a post on the TSN Facebook page criticizing the decision to hire Drake as the ambassador for the Toronto Raptors).

Respecting the copyright owners have in their works and responsibly engaging in the creation and encouragement of UGC were two of the key takeaways from this presentation, both of which allow for section 29.21 to be properly navigated and adapted to.������

SOCAN's Perspective – UGC and the (De)valuation of Music

Eric Baptiste, CEO of the (“SOCAN”), spoke about how section 29.21 affects the performing rights organization's business model.

SOCAN is assigned the performing rights to musical works by artists and publishers in Canada. Through reciprocal foreign agreements with international performing rights organizations, SOCAN essentially owns the performing rights in Canada for most of the music in the world.

How their business model works is simple: SOCAN provides a blanket licence to establishments like restaurants, bars, broadcasters, and shops (among other entities) to use all the music they want. It's essentially a one-stop shop for users. The difficulty of this system is in the valuation of music licences.

SOCAN is under the Act to file proposed tariffs with the Copyright Board. Different uses of music are licenced at different rates. And within those rates there can be further fluctuations based on the size of the venue and how many days the establishment operates. The Copyright Board publishes these proposed tariffs and then hears objections from third parties before certifying an appropriate royalty. Baptiste suggests that section 29.21 will prove problematic in determining an appropriate royalty for the use of music on online services such as YouTube.

Currently, SOCAN has an “experimental” agreement with YouTube where the online service pays the same royalties as a traditional broadcaster. This agreement only lasts until the end of 2013, and does not take into consideration section 29.21 – meaning that music used in non-commercial UGC, which does not require a licence, is licenced under this agreement. What will happen after the agreement expires remains to be seen, although YouTube may pursue a lower royalty because of the UGC exception.

Baptiste closed his presentation by saying that the UGC exception is unique and that it does not exist anywhere else in the world. He also thinks the UGC exception is an unnecessary addition to the Act and that it creates uncertainty and complexity, while posing a threat to appropriate compensation for professional musicians.

Legitmix's Perspective – The “Win-Win” Model?

Omid McDonald, the CEO and Co-Founder of , wants UGC creators and original artists to be properly compensated for their work. And he's come up with a creative solution to work within the law to make it happen.

After a friend's documentary was never released because he could not afford the fees to clear the music,�� McDonald realized that something was backwards about the copyright regime. Remixes and mash-ups have become mainstream, but it is a time-consuming and expensive process to get the proper licences from the publishers and composers of multiple works. While section 29.21 streamlines the process for non-commercial UGC and exempts creators from “clearing the rights” to their works, it is still not perfect. The non-commercial UGC creators still cannot get paid unless they clear the rights, and McDonald views that to be a gap in the legislation.

Legitmix's model works by separating a remix into its constituent parts: the remix file and the sampled works. Users who want to listen to their favourite remix have to buy the remix file and the Legitmix software scans their iTunes library to see if the user owns the sampled works. If the user does not own the sampled work, then they have to buy the individual tracks from iTunes or another legal music provider. Once all the sampled tracks are available, the remix file can then play the new work.

In this model, UGC creators can be compensated because they are not technically “using” existing works. They are selling their original work (the remix file), while the actual sampling of the existing works is done in the privacy of the user's home, once legal copies of the existing works exist on the user's computer.

McDonald said that record companies love the idea because UGC creators essentially become salespeople for record companies' back catalogues.����

Concluding Thoughts

The speakers for this session demonstrated wildly different perspectives of section 29.21, from determining the appropriate way to adapt within the requirements of the provision, to lamenting the new change and the uncertainty it creates, and finally to creatively working around the section to remedy perceived shortfalls.

Many of the speakers noted that section 29.21 is the first exception of its kind in the world. It will be interesting to see if this provision delivers on its promise to clarify the legality of UGC and be adopted by other countries, or whether the restrictive requirements and the uncertainty the section allegedly creates will doom it to the margins.

Fraser Turnbull is is a JD candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program.������Fraser is��interning at SOCAN as part of the IP��Intensive Program.����

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J.K Rowling certainly felt����when thousands of fans used the characters in Harry Potter to publish their own stories online. The late J.D Salinger, on the other hand, did not feel as enamored when Holden Caulfield, the teenage protagonist in his famous novel,��Catcher in the Rye,��was����as an elderly man fleeing from a nursing home.��Despite an author's preference to keep their characters frozen in time or kept alive through exploratory recreations, section 29.21(1) of the ��may be the saving grace for super fans engaging in fan-fiction works in Canada. However, it also raises serious concerns with respect to issues of misappropriation, fair compensation, and tensions between moral and economic rights.

Since the UGC provision is the first of its kind, its interpretation in the context of litigation has yet to be seen. It is therefore imperative to open up a dialogue between creators of copyright-protected works, users, and lawyers with respect to the scope and limitations of the UGC exceptions. The IP Osgoode symposium on User-Generated Content Under Canadian Copyright Law��provided a forum for panelists to do just that.

What Rights Should the Authors of an Existing Work Have? Toward a Private Model for UGC

What rights, if any, do authors of an existing work have in relation to a fan-fiction creation?��On the one hand, a fan-fiction creation can be understood as a derivative work, finding its origin only in relation to the existence of a previous work. However, it can also be argued that both works are distinct and original under Canadian Copyright law.

In her presentation on the legal aspects of fan-fiction, lawyer , suggested that the UGC provisions should strive to reflect the Act's pre-existing policy by limiting reproduction for private purposes to “only for the individual's private purpose” as seen in .��In her proposed private UGC framework, dissemination of a UGC work (such as fan-fiction) would only be possible if the copyright holder initially authorized the distribution of the new work and received fair remuneration from intermediaries.

The idea of creating a private model of the UGC exceptions is a worthwhile idea to consider, especially in light of the complications which arise under . Guarding the (potential) market of an existing work could be made possible by preventing fan-fiction creations (which compete against or deplete the commercial value of an existing work) from being distributed.

Moreover, this arrangement would encourage greater communication between authors and users at the outset of dissemination, thereby ensuring that creators of fan-fiction stay within the limitations of UGC and do not overstep the boundaries of the exception.

What About the Rights of Fan-Fiction Creators and Users?��

While granting authors the right to control the distribution of fan-fiction works may achieve the goals of fair compensation (particularly in situations where a fan-fiction author financially benefits from the labour and skill of another), the interests of the public are nonetheless at stake.

Browsing reveals that fan-fiction is not only an opportunity for fans to share new stories and recreations of their favourite characters, but it also serves as an imaginative platform for a diverse fan community.��The dissemination of knowledge and intellectual creations, flowing from both authors and users, is therefore essential to the world of fan-fiction. When considering a private model to UGC exceptions, we must ensure that the goals of the free and public knowledge are met and that fans will still be able to meaningfully contribute to the works of authors.

��

We should therefore be wary of giving the considerations of authors too great a role in interpreting UGC exceptions as this may run the risk of granting copyright holders an inappropriately broad gate-keeping role with respect to user access of the s.29.21(1) provisions. (This is better left to the Canadian .)

A move toward a private model of UGC, whereby an author has the initial right to preclude the dissemination of a fan-fiction work may tip the balance disproportionately in favour of author rights. We should perhaps consider by starting off with a scheme of remuneration whereby creators of fan-fiction and intermediaries that have received financial success must compensate authors of existing works.

This approach may help strike a fair balance between the rights of users to enjoy artistic creations and build upon them, and the rights of authors to be appropriately remunerated.��After all, while it may be flattering for authors, it is still tough work to have thousands of fans standing on their shoulders.

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

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The panel addressed the international aspects of UGC in two different ways: both through public international law obligations imposed on Canada as a result of international treaties, and through addressing private international law issues concerning liability and potential defences to infringement in different jurisdictions.

Sookman: Is the UGC Exception in Conformity with International Treaty Standards?

Barry Sookman's talk focused on whether or not the UGC exception complies with international obligations, in particular the ��(and the provisions of Berne incorporated into the WTO's ).

Sookman has previously mentioned that the Copyright Modernization Act could run afoul of Canada's international obligations by creating “” of new exceptions. His presentation during Thursday's panel elaborated upon how the UGC exception could fail to satisfy the “three step test” for permissible exceptions to copyright protection provided for in: where the exception applies only in “certain special cases”, does “not conflict with normal exploitation of the work”, and does not “unreasonably prejudice the legitimate interests of the author”.

Sookman argued that the UGC exception, which applies to all works and subject matter so long as it is used in a non-commercial context does not qualify as a “special case”, nor is it “certain” when it would apply. Moreover, the provision that addresses economic impact (at ) uses the terminology “does not have a substantial adverse effect”, rather than “does not conflict with the normal exploitation of the work” - which raises questions about whether the provision creates a higher burden for rights holders than expressed under the Berne Convention.

Finally, Sookman took issue with the fact that s 29.21(1)(d) seems to allow users to unreasonably prejudice the interests of the author, as the provision does not clearly allow authors to exercise their moral rights in the context of UGC. In comments which echoed the concerns of Marian Hebb, a panelist from earlier in the day, Sookman pointed out that the exception may not allow an author to prevent certain uses of her works for non-financial reasons – including prejudice to her honour or reputation.

Blom: Private International Law and the UGC Exception

Prof. Joost Blom of the UBC Faculty of Law rounded out the panel by talking about the UGC exception in the context of the Conflict of Law rules. Prof. Blom's discussion of IP liability and jurisdiction seems particularly important given the global operation of the market for copyright-protected subject matter and a by the European Court of Justice (to see the IPilogue's coverage of this decision, click ).

Blom began his presentation by outlining the three fundamental questions posed by private international law:

1. Jurisdiction (Where can a proceeding can be initiated?)
2. Choice of Law (Under what rules is a proceeding decided?)
3. Foreign Judgments (Will a judgment in a proceeding be enforced in another jurisdiction?)

Blom indicated that although IP rights are territorially defined, much infringing activity takes place either abroad or on the Internet (the nature of which can make the question of where an infringement has occurred very difficult to determine). In previous infringement proceedings involving the Internet, the Supreme Court has held that a plaintiff must establish a “” between the actionable wrong and Canada before a Canadian court may assume jurisdiction over a proceeding. However, as mentioned by Prof. Blom, this terminology is not specific enough to allow Canadian users to adequately assess their risks before reproducing or communicating their personal UGC.

Prof. Blom provided a powerful example of the potential international liability of creators of UGC, even given the recent amendments to the Copyright Act. Imagine a group of UBC students use five popular songs in a “flash mob” demonstration on campus. The flash mob is recorded, and the subsequent recording is uploaded on YouTube.

In this scenario, the student group has potentially infringed on three different exclusive rights: the right of reproduction, the right of performance and the right of communicating the work to the public. The first two acts occur in Canada, but the third could occur anywhere in the world – and although the UGC exception could exempt the student group from liability in Canada, it would be ineffective against a proceeding brought under any other jurisdiction (such as the USA).

Prof. Blom's presentation, therefore, served as a strong reminder that in the digital age, a domestic exception to copyright infringement only provides limited protection when the new work is provided on the Internet.

David Bowden is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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Featuring Professor Victor Nabhan
Genest Global Faculty

Thursday October 10, 2013, 9:30am to 5:00pm
Osgoode Hall Law School, 91��ɫ

IP Osgoode and the Pierre Genest Memorial Fund are proud to present “User-Generated Content under Canadian Copyright Law”, a full day symposium focused on the legal and commercial aspects of user generated content (“UGC”) featuring , the Genest Global Faculty member for the fall 2013 term at Osgoode Hall Law School.

The symposium promises to be an informative, lively and entertaining one with live performances and demonstrations by various UGC artists and practitioners, followed by presentations by leading experts in academia, the legal profession, and industry.

Some of the topics for discussion include an analysis of the UGC exception under Canadian copyright law, the interaction of the UGC exception with fair dealing, specific legal aspects of fan fiction and appropriation art, and whether the UGC exception is in conformity with international treaty standards. Representatives from SOCAN,��BCE, and Legitimix��will also provide some insights on the commercial aspects of UGC and practical strategies for minimizing risks associated with UGC.

The panel sessions will be chaired by IP Osgoode faculty members, Professor David Vaver, Professor Carys Craig, Professor Ikechi Mgebeoji, and IP Osgoode’s founder & director, Professor Giuseppina D’Agostino.

Lunch will be served. Please RSVP to (Event Code: UGC) by October 3, 2013. All are welcome and there is no registration fee. Click for more information and the latest version of the symposium agenda.

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