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.

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The Retaliation of Gaming Companies��

Legislation in��Canada and the U.S. does not spell good news for UGC creators. Canada’s����addresses UGC specifically, stating that the UGC creators escape infringement only when their work: (1) is based on��existing material that itself does not infringe copyright, (2) is used for non-commercial purposes, ��(3) gives credit to existing work, and (4) does not have a substantial adverse effect on existing work.��The “substantial adverse effect” clause can be used to support two main arguments made by gaming companies against UGC creators. ,��companies can argue that UGC such as walkthroughs and guides deprive them of the profit they would have earned by selling their own versions��[2]. ,��video game creators may state that UGC misrepresents a game in such a way that the companies' reputation is affected; this situation could infringe the companies' morality rights��[3].��American Copyright Law is arguably more lenient, as it does not address UGC. This omission means that legal battles over contentious works primarily involve discerning whether the UGC constitutes an unauthorized "derivative work" based on a video game company's protectable expression.��Under��,��UGC does not infringe copyright if the preexisting material was used with permission. As well, UGC��creators can obtain copyright for parts of the work that��do not contain video game companies' preexisting content.

Gaming companies often side-step doctrines that protect players who might create UGC, such as fair use or fair dealing, by turning consumers into licensees through standardized end user licensing agreements. The terms in those contracts are usually dictated by one side, and players are asked to “take it or leave it”: either adhere to the agreement's terms, or do not engage with the gaming content at all.��[4] Most contracts are similar to the one in , where the terms enable gaming companies to use any UGC made by players, but keeps the players in legal uncertainty when they use copyrighted content from games to create UGC.

Some Case Law Guidance

Of course, the central purpose of protecting gaming companies’ economic and morality rights against unauthorized UGC should be upheld. However, I do not recommend adopting an “all UGC is evil” mentality when analyzing such disputes. Fortunately, the U.S. Courts have recognized this, offering some guidance as to how to separate more innocent UGC from ones that are truly harmful.

In , a game developer wanted to encourage user creativity in his game, FormGen, creating a “Build Editor” in his game that allowed players to build their own levels by using the tools provided. Players were very enthusiastic, and many participated and posted their creations online. Micro Star, the defendant, downloaded 300 levels created by users, burned them on a CD, and sold them commercially. The Court ruled against Micro Star, stating that it created a derivative work without authorization.��The CD made by Micro Star fulfilled the elements required of a derivative work: it existed in a concrete and permanent form and contained substantial amount of copyrighted material. Further, the defendant’s use did not fall under “fair dealing”, because it was used commercially and had an adverse effect on the original work, as FormGen retained exclusive right to perform sequels (Micro Star’s work was considered to be a sequel).

In contrast, in , the Court ruled in favor of UGC creators. Bleem created a software emulator that allowed users to play Sony’s console games on PC computers. In advertising its products, Bleem used copyrighted screen shots from Sony Console games in order to show the difference between those games played on console and those games played on computers. The Court ruled that Bleem's use fell under the fair dealing doctrine because it provided comparative advertising that ultimately benefitted consumers through the provision of important purchasing information and encouraged competition and innovation in the market. Moreover, the Court ruled that Bleem did not use any copyrighted materials in its work, but rather only in its advertising;��thus, the UGC��was considered fair dealing. The Court also stressed that in order to rule against derivative work in a fair dealing case, the adverse effect the UGC causes to the preexisting work must be substantial. In this case, it was permissible for Sony to suffer some financial loss as a result of comparative marketing.

Trying to Find Middle Ground: Limited Licenses?

While much existing UGC would not fall under fair dealing exceptions, the reality is that��giving players more control and recognition over their UGC fosters creativity and often leads to enhanced gaming experiences. Consequently, gaming companies' attempts at stricter control��have usually been met with serious player backlash, leading some developers��to realize that it might be better to work with, rather than against, players. In response, video game creators��such as����(maker of Xbox games)��and����have started offering��limited licenses that grant players some protection over their UGC and��the ability��in certain cases for players to infringe copyrighted materials when making UGC.��However, these licenses are still somewhat problematic. Firstly, each company offers players a specific set of rights that are often incompatible with those offered by other companies; this makes it difficult for players to use multiple games to create UGC. Secondly, the licenses often contain undecipherable��legal jargon��and leave a lot of room for interpretation, meaning UGC creators must stew in legal uncertainty. Frustratingly, the licenses can also be revoked at any time.��Lastly, players still have no say over the licenses’ terms.

Conclusion

It seems unlikely that legislation or case law will give UGC creators more rights in the near future. However, out of fear of backlash, gaming companies often choose not to sue players who infringe copyright in their UGC. Microsoft even allowed Rooster Teeth Productions to continue producing Red vs. Blue without paying royalty fees to them.��Thus, the smart thing for players to do may be to vote with their wallets and voice, and not support companies that do not accommodate UGC.

Sabrina Ding is an IPilogue Editor and a J.D. candidate at Osgoode Hall Law School.��

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The CBC/Radio-Canada and its precursor – the Canadian Radio Broadcasting Commission (CRBC), established by – have been a part of the country’s cultural sphere since the early 1930s. Throughout , the CBC/Radio-Canada has been envisioned as a means of protecting Canada’s cultural sovereignty, in the face of American content to the South, while helping to establish domestic, Canadian media industries.

It has been over twenty years since the CBC/Radio-Canada’s mandate was updated by Parliament. The most recent states that the CBC/Radio-Canada “should provide radio and television services incorporating a wide range of programming that informs, enlightens and entertains” (3(1)(l)) and “contribute to shared national consciousness and identity” (3(1)(m.vi). In the intervening years, the CBC/Radio-Canada has increasingly moved into digital and Internet-based spheres in order to reach Canadians via the media of their choice.

The contemporary media and cultural environments must be adapted to in order to reach and connect Canadians from coast to coast to coast. CBC/Radio-Canada President and CEO describes the current situation as . Mr. Lacroix envisions the future of the CBC/Radio-Canada as (p. 1). With some creative thinking, the digital environments that the “A Space for All of Us” strategy seeks to capitalize upon can help foster these ‘public spaces’ and contribute to the stewardship and production of pluralistic forms of Canadian cultural identity.

In a recent , Canadian ex-pat Cory Doctorow argues that the CBC/Radio-Canada should look to the British Broadcasting Corporation’s (BBC) short-lived as a means of opening up the Corporation’s archive of publicly funded cultural goods to the people of Canada so that they can combine and create from these public resources. For Doctorow, “there's nothing more ‘digital first’ than ensuring that the most common online activities – copying, sharing, and remixing – are built into the nation's digital heritage”. The that Doctorow describes has recently been given legal credence through the (2012).

The Copyright Modernization Act provides legal circumstances where the creation of��. In particular, the use of these materials must be solely non-commercial in purpose, the source of the materials must be attributed (where possible), is not derived from already infringing materials, and must not have a “substantial adverse effect, financial or otherwise” on the existing rights holder and/or the existing work.

As a new part of legislation, the specifics of the “Non-Commercial User-Generated Content” provision (29.21) – or the – have yet to be tried and defined via the courts. However, as the country’s public broadcaster, the CBC/Radio-Canada could be on the vanguard of this emerging cultural space by providing its archival materials to the public for their digital use and repurposing. Allowing Canadians to access and ‘remix’ publicly funded cultural resources in new and innovative ways could help create a CBC/Radio-Canada ‘space for all of us’ that reflects the dynamism of Canadian culture.

Of course, establishing such an archive is no small task and the CBC/Radio-Canada will need to exert human and financial resources to make this a reality. As Drs. , , and state in , cultural works often entail the use of overlapping works – such as the music contained in a soundtrack to a television program – that are protected and governed by embedded intellectual property rights (p. 31). The CBC/Radio-Canada will, therefore, need to ensure that the works available in its archives do not run afoul of the legal rights of other creators and contributors. These processes require technological and human infrastructure that may strain the Corporation’s already .

However, by more clearly linking and contributing to the daily and cultural lives of Canadians as a source of digital cultural resources, the CBC/Radio-Canada will have yet another means of defending its Parliamentary appropriation. As , Assistant Professor at the University of Windsor, argues in in Dynamic Fair Dealing, “the CBC[/RadioCanada] has an institutional history of taking risks, innovating, and connecting with Canadians in new ways. … given its mandate, funding source, and history, the CBC[/RadioCanada] is well equipped to set the bar for Canadian broadcasting” (p. 96).

Somewhat insulated from the commercial pressures facing Canada’s private broadcasters, the CBC/Radio-Canada has the ability to be creative and innovative as the Corporation works to fulfill its mandate. Opening up the public broadcaster’s archive to Canadians as a source of cultural resources may be challenging. However, the opportunities to further contribute to the country’s cultural heritage and facilitate a dynamic cultural future for Canadians, as well as the Corporation itself, is a space that the CBC/Radio-Canada should work to create.

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at 91��ɫ, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.

The post Making the CBC/Radio-Canada’s Giant Castle More User-Friendly 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.

This chapter considers the shape Parliament has given to the UGC exception and examines its place within the scheme of the Copyright Act, particularly in light of recent Supreme Court of Canada jurisprudence. The chapter begins with a discussion of the definition of UGC, followed by an analysis of the statutory exception. It next considers the relationship between the UGC exception and the fair dealing exception. Although opponents ��might characterize both the UGC exception and expanded fair ��dealing as unjustifiable encroachments upon the rights of copyright ��owners, this chapter argues that these exceptions reflect the shifting ��realities of cultural production and dissemination.

1. Defining User-Generated Content

User-generated content, or UGC,[2] is a term that has been used to describe a fairly wide range of Internet-based activity from blogging to file-sharing.[3] Gervais, admitting the difficulty of defining a term that covers such a broad range of conduct, has characterized it as “content that is created in whole or in part using tools specific to the online environment and/or disseminated using such tools.”[4] Hilbert defines it not so much in terms of what it is, but in terms of who makes it, writing that UGC is “used to describe activities engaged in by those typically seen not as cultural producers but cultural consumers.”[5]

Although these characterizations emphasize different features of UGC, together they highlight the profound transformations wrought by the digital information context. On the one hand, digital technologies empower users of digital works to interact in new ways with copyright-protected content; at the same time, the proliferation of new and modified content from non-professional sources has undermined the traditional content intermediaries, creating a radically transformed context for the dissemination of information and cultural content.[6] It is precisely this new paradigm that underpins the recent Supreme Court of Canada copyright jurisprudence.[7]

The expansive definitions of UGC have led to further attempts to categorize UGC for the purposes of legal analysis. Trosow et al[8] offer a taxonomy for UGC that features three broad categories: creative content, small-scale tools (such as apps) and collaborative projects (such as wikis). In this taxonomy, the focus is on function, and it is certainly worth reflecting upon the broad range of purposes served by UGC. UGC may be innovative, creative or informative. Indeed, in fields of activity where UGC has had an impact on knowledge generation and dissemination, the focus of inquiry has been on the substantive issues around the quality and reliability of the new content, rather than on issues of copyright.[9] Copyright lawyers employ a different taxonomy. Gervais offers a taxonomy based on the nature of the content in relation to copyright principles. He would divide UGC into three broad categories[10]: content authored by users,[11] content derived by users[12] and content copied by users.[13] This taxonomy emphasizes the different ways in which individuals now engage with digital works and digital modes of dissemination. The focus on the characterization of the user’s activity, as opposed to, for example, the ��form of the work, is echoed as well in the Supreme Court of Canada’s ��emphasis in ��SOCAN v Bell Canada [ Bell ] on the importance of the perspective of “the ultimate users” and their purposes in relation to ��the works at issue.[14]

The UGC exception in Bill C-11 is oriented only toward the second category in Gervais’ taxonomy: content that is created by users and that incorporates, to a greater or lesser extent, copyright works by others. It is therefore this category of UGC that will be the focus of this chapter. Because this chapter is about intellectual property law, it is the copyright lawyers’ taxonomy that is adopted. Nevertheless, it is ��important to note that UGC in its many forms is already becoming ��accepted in different fields of activity as a source of information and ��creativity, and inquiries in these fields have moved ahead to issues of ��how best to use, integrate and derive benefit from these new modes of ��knowledge creation.

Featured here is the first part of a book chapter written by Teresa Scassa, Canada Research Chair in Information Law and Professor at the University of Ottawa. The full chapter is available for download . The book is entitled "The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law" edited by Michael Geist, and is available for purchase or download .

The post Acknowledging Copyright’s Illegitimate Offspring: User-Generated Content and Canadian Copyright Law appeared first on IPOsgoode.

Background: “Google France checked in at Bermuda”

The ��is the latest volley in an between France and internet behemoths such as and . Essentially, it has become common practice for these companies to operate with expenses (such as labour) concentrated in high-tax countries in the European Union, such as France and the UK, while routing most of their revenues through “tax havens” such as , the , and Bermuda, thereby avoiding an estimated average of 500 million euros per year in corporate tax, in France alone. The data-mining tax is one of several proposed solutions, following an attempted and controversial .

The Rationale: “User added a new job at Facebook, Google, Amazon, and Apple”

The rationale behind the tax recommendation, elaborated upon in Forbes by one of the , is as follows: Data plays such an that it may now be considered the “raw material” of the digital economy. Users provide what may soon be literally lifetimes of data in various forms online, whether collected through behaviour-tracking cookies, submitted through tweets and searches, or inferred through analytics. This allows online companies and applications to laser-target users through features and ads, monetizing the collated data. Thus, users themselves provide data that feeds back into the supply-production-distribution-consumption chain, and according to the report's authors, this turns users into employees whose unpaid labour of providing data produces value for these companies. This user-created value is unaccounted for, and should be taxed.

Implementation: “Facebook added 1 billion friends. Auditor poked Facebook.”

Since international tax law currently fails to account for the geography-heedless nature of user data-based business models, the data-mining tax (which the French government has yet to endorse), is meant as a step towards the report's proposed . The tax would apply to both international and domestic businesses that regularly and systematically monitor online user behaviours of those in France. Tax rates would depend on various factors: how many users are tracked, the type of data collected, ethical issues, and level of respect for user privacy and control, among others.

Analysis: “@User tweets about #Privacy #ConflictofInterest #Competition and #PublicUtilities”

The idea of taxing data-mining immediately brings a number of issues to mind, the first of which is suggestively indicated by other names for the proposal: some call it a or a “” policy. It may be problematic to create monetary incentives for corporations to respect user privacy, as it essentially commoditizes privacy (or the lack thereof) and may erode higher ideals of respecting privacy for its own sake; perhaps those who warrant the term “predator” should not be made to pay, but should restrain from undue preying altogether. From a practical perspective, the act itself of auditing companies' practices may involve questionably invasive technological practices, such as .

Second, tying government revenue to companies' privacy practices the way this tax would (where less user control means the government levies higher taxes) creates a potential conflict of interest, if the government is supposed to have citizens' best privacy interests at heart. Moreover, since the data belongs to the user, the labour model underlying the report's recommendation raises the thought that perhaps users themselves should be paid for it.

Third, the data-mining proposal prompts interesting connections between . As demonstrated by cases against , (), and , such companies walk a fine line between maintaining a healthy monopoly and engaging in anti-competitive practices. Incentivizing better privacy policies through taxes may put a damper on the endless reach for data to sell to advertisers, while creating room for smaller competitors who more effectively prioritize user privacy and control.

Fourth, turning data-mining into a source of taxation evokes questions about the role of privately owned technological platforms in the public sphere. Whether with or , such websites at times seem to approach the of . The problem is that regardless of sociological status, economically and structurally these companies are wholly private. This unique yet rising combination means that attempts to regulate the driving business model warrant particularly careful scrutiny, and perhaps a conversation about what such sites' status ought to be.

Finally, it bears remembering, first, that the companies in question are offering free services whose on a voluntary basis (though see the public utility debate linked above). Second, whether or not data-mining becomes taxable, Google, Facebook, et al. already and will continue to monitor and benefit from users' data regardless. One could then argue that the public may as well take advantage of that fact, in this case via taxation. As the old adage goes, after all, you are what you tweet.

Cynthia Khoo is a JD Candidate at the University of Victoria.

*Term coined for this post, based on the notion that the collected “property” is intangible (unlike real or personal property), yet not necessarily created or thought up (unlike intellectual property), but simply gleaned from users' data trails as they go about their daily lives on the internet.

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