Another new copyright exception that does not require the fair dealing analysis is contained in Section 29.23 of the amended Copyright Act. This exception legalizes unauthorized reproduction of broadcast copyrighted works for the purpose of “listening to or viewing” them later. This exception is normally referred to as the “time shifting” exception.
Again, it sounds like a good idea, but I see three issues with it.
First of all, this is an attempt to legislate a business model. Granted, today it seems that time-shifting is as natural as using a library to read a book. But really, just because most viewers and listeners expect to be able to time-shift and because most broadcasters recognize the value of this business model, it does not mean that everyone should be forced into it. My solution would be, as in the case of libraries and most other exceptions, to craft the exception in the form of a rebuttable presumption. Unless a broadcaster expressly states that they do not agree to their broadcasts being recorded for time-shifting purposes, time-shifting should be allowed. Indeed, this is the purpose of all presumptions – to establish what the default behaviour is and to allow all those who disagree to craft their own rules. The presumption would be justified simply because otherwise a generally accepted practice results in mass copyright infringement, and it does not make sense to force the majority of broadcasters who agree with this practice to have to explicitly ALLOW time-shifting in order not to criminalize their listeners and viewers.
The section does contain a provision that removes from the scope of its application broadcasts protected by technological protection measures (TPMs). But this, in turn, puts the burden on the broadcasters not simply to clearly state that they do not wish their broadcasts to be recorded for the purpose of time-shifting, but to actually integrate the TPMs into their broadcasts.
The second problem is with the wording of the section where it lists the conditions that trigger the exception. One of the conditions is set forth in paragraph 29.23(1)(d), which states that the exception only applies if the individual who makes the recording “keeps the recording no longer than is reasonably necessary in order to listen to or view the program at a more convenient time.” What it does not say is whether “a more convenient time” refers to one time only. The exception does not expressly require that the individual destroy the recording immediately after he listened to or viewed the recording. For some, “a more convenient time” would be “once a year, every year”.
One other thing to note here is that the exception will not apply in respect of on-demand services. In fairness, I don’t understand this limitation. Why is it OK to record something that is being broadcast without any interaction with the viewer or listener, but it is not OK to record something for which the viewer or listener has likely paid but is then unable to fully enjoy the purchase for some reason?
BOTTOM LINE: Generally, this exception seems to make sense – but only because it is a generally accepted business model today. It would have been a perfectly acceptable clause if it were drafted in the form of a presumption, and if it was polished a little to deal with the issue of the number of times the recorded broadcasts can be viewed or listened to. Conceptually, there is no reason to punish general broadcasters with the exception while letting the on-demand services off the hook.
This is yet another exception that does not require a fair dealing analysis, since the introductory wording for the exception is plain and simple: “It is not an infringement of copyright for an individual to reproduce a work or other subject-matter or any substantial part of a work or other subject-matter if…”, followed by 5 conditions and 2 limitations.
The conditions are as follows:
1. The source copy “is not an infringing copy”. This means that the exception applies not only to properly authorized copies but also to copies that are “not infringing” due to the numerous exceptions.
2. The individual (and it is important to note that the exception only applies to individuals) legally obtained the source copy and owns or is authorized to use the physical medium / device / digital memory on which the source work or other subject-matter is reproduced. The term “obtained” expressly excludes borrowing or renting. The reference to ownership or authorization to use the medium, device or digital memory is important because it means that no authorization to use the actual work or other subject-matter is required for this exception to apply.
3. The individual did not circumvent or cause to be circumvented any technological protection measures in order to make the reproduction. I will discuss the TPMs in future posts.
4. The individual does not give the reproduction away. This wording is unfortunate, since it is not clear whether “giving away” also includes “renting out” or “sharing”.
5. The reproduction is used only for the individual’s private purposes. This one should raise a lot of eyebrows. First of all, in light of this condition it is not clear why the previous (“no giving away”) would be necessary. Isn’t is implicit in the words “private purposes” that any use by anybody other than the individual who made the reproduction would not qualify as “private purposes”? And if certain uses by others could still qualify as “private purposes” (so as to require the “no giving away” condition), what is the scope of “private purposes”?
Moreover, same as with the user-generated content, it is not clear how this exception is supposed to coexist with other exceptions.
If “private purposes” do not include research, private study, education, parody, satire, criticism, review, news reporting, creation of non-commercial user-generated content, “time shifting” (Section 29.23), backup (Section 29.24) – what are these mysterious private purposes? And if some or all of these specific purposes fall under the general umbrella of “private purposes” – who gets to choose which exception rules should apply? If a user gets a “Get Out of Jail Free” card in case any of the overlapping exceptions should fit (and this appears to be the case), then copyright owners have been dealt a really bad hand.
Another overlap relates to one of the two limitations, namely the limitation pertaining to the type of the medium onto which the private reproduction is being made. Along with the new Section 29.22, the Copyright Act will continue to have Section 80 (have I mentioned the numbering problem?), which deals with “copying for private use”.
Section 80 allows reproduction of a musical work, a performance or a sound recording onto an audio recording medium for the private use of the person who makes the copy, unless the copying is done for the purpose of selling, renting out, distributing, communicating to the public, or performing in public.
Subsection 29.22(3) states that subsection 29.22(1) (i.e. the subsection that establishes the “reproduction for private purposes” exception) does not apply if the reproduction is made onto an audio recording medium, in which case the exception would be triggered by Section 80. The exception established by Section 80 is much broader, and it contains very few limitations.
Section 29.22 does not purport to limit the generality of the exception established by Section 80. To the contrary, it adds a limited exception with respect to all reproductions for private purposes that would not have otherwise been covered by Section 80.
The second limitation in Section 29.22(4) is a requirement for the individual to destroy all reproductions of the source copy before the individual “gives away, rents or sells” the source copy. Otherwise, the exception does not apply.
BOTTOM LINE: In fact, this exception is not entirely unreasonable – aside from it being poorly worded and overlapping with other existing exceptions. It would be justified in most circumstances.
However, my approach to most copyright exceptions is that they should not exist in the form of absolution, they should create a strong presumption, which may still be overridden by copyright owners. I see no reason why a copyright owner should not be allowed to prevent his works to be carried by libraries. Granted, an absolute majority of copyright owners would not have any problems with libraries or legitimate private copies, but there is really no reason why an expressed will of the copyright owner should not trump the default presumption set out in a particular exception.
The only time when, in my opinion, there should exist an absolute right to use a work without seeking consent is in the case of true criticism targeting the work being criticized. Not because it’s a “user right”, but because often the only way to meaningfully express an opinion about a work is to make references to that work. As rightly cited in Compagnie Générale des Établissements Michelin-Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada),  2 FC 306, freedom of expression
”is a freedom to express and communicate ideas without restraint, whether orally or in print or by other means of communication. It is not a freedom to use someone else’s property to do so. It gives no right to anyone to use someone else’s land or platform to make a speech, or someone else’s printing press to publish his ideas. It gives no right to anyone to enter and use a public building for such purposes.”
Not every expression should trump copyright. It is only the expression about the work being criticized that should be able to trump the copyright owner’s wish to not be criticized.
Of course, there still remains the usual big question as to whether the exception trumps a contract or a contract trumps the exception. In other words, if I legally download a copy of the work by accepting the term that I will not, in any circumstances make any reproductions of the work, does the exception give me a positive right to reproduce, or it only takes away from the copyright owner the remedy pertaining to copyright infringement, without taking away the remedy flowing out of breach of contract? The language of the exception suggests the latter. On the other hand, the spirit of the so-called “user rights” may suggest that the “user rights” to use others’ property may get protection even in cases where there is an express agreement that users will not be making certain uses of the work.
The abundance of new unjustified exceptions should lead copyright owners to go back to the underlying principles of copyright, namely that copyright is about protecting the copyright owner’s ability to enter into voluntary contracts without getting ripped off. The exceptions are intended to complicate the life for copyright owners, but there is still sufficient protection set forth by the Copyright Act for copyright owners to bind the original purchaser of their works into enforceable contracts.
The solution to combat unjustified exceptions is to draft agreements in a language that would expressly trump the exceptions – through contract law.
This article was first published in the Copyright and New Media Law newsletter.
Most businesses and organizations hire, at one point or another, web-savvy persons to design a website or blog, and perhaps even an e-commerce site for their business. Whether you use professional agencies and studios, crowdsourcing sites, college students, or your cousin’s teenaged daughter, you and this creative person need to make an agreement as to each party’s obligations with respect to the relationships and, as well, responsibility for copyright clearances and clarity on copyright ownership. Setting this out in writing prior to the work start-date is always best.
The bottom line rule on copyright ownership, and one that often is misunderstood, is just because you paid to have your website designed does not mean that you own the copyrights (and other rights) in everything specifically designed for you. And what are these many elements on which ownership may be pivotal? Think both applications and content: things like the interface design, graphics, fonts, HTML code, content (text, images and more), databases, and scripts created for your digital space.
According to most copyright laws, it is the person who actually created the work who is the author of the work. Unless a true employment relationship exists between you and the web designer and the creation of the website is within the scope of such employee’s duties, the author of the work is also the first owner of copyright. This means that the only way for you to obtain copyright in what the designer creates is to enter into a written assignment or license agreement with the copyright owner.
Other key matters that your agreement should address are set out below.
Third Party Content
Third party content is content used on your new digital space but to which neither you nor your web designer owns any rights. It is commonplace to see a web design agreement address the issue of third party content. These provisions should address issues like the use of images found on Google. Many do not understand that Google images provides a service’the location of suitable images; however these images are protected by copyright, and you will need to obtain permission to use these images and other third party content. Who will be responsible for clearing such rights – the designer or you? Who will pay for these clearances? And is there a specific rights clearance form to be used in each instance of third party content? These are all issues that should be addressed in your agreement with the designer.
First and foremost, your contract with the designer should include a provision that would disallow the use of third party content unless you approve each such use.
Your agreement should also contain indemnification provisions. In other words, the designer must undertake to compensate you for any losses that you may incur if you get sued by someone whose works the designer used for your website.
Remember, you cannot tell the copyright owner to sue the party that you dealt with – i.e., your designer. It is you (or your company) that is using the work without permission. It is you (or your company) that will get sued. All you can do (after being sued) is to then turn around, as it were, and request compensation from the party (your designer) with whom you dealt. This issue is exacerbated if your designer is in a different country than you, which in legal parlance, is called a different jurisdiction. For example, if you get sued by a third party content owner, it is very unlikely that you will be able to recover your money from your designer, even if you have included an indemnification provision in your designer’s contract, from someone, let’s say, in Pakistan whom you have never met.
Unlike the economic rights set out in a copyright statute, the “ownership” or entitlement to moral rights cannot be transferred in an agreement. Only an author (even if they have transferred ownership of the economic rights) of a work may also have moral rights in his creation. Moral rights vary from county to country. In Canada, for example, authors of all works, even a business document, have moral rights in their works (which are waivable). In other countries such as the U.S., only fine artists have moral rights in their creations. In some countries, moral rights are the same duration as the economic rights, some expire upon death of the author, and yet in other countries moral rights are perpetual, even after the expiry of copyright.
The right of integrity is one moral right. This is the right to modify or to allow others to modify a work. Generally when you run a website, you will want the right to modify the site and although this may be an economic right (the right of adaptation), it may also relate to the right of integrity. In this situation, it is best to get a waiver of this moral right (where waivers are permitted) and be able to make any modifications to the site internally or with the help of another designer.
Another moral right is the right of paternity, which is the right to be associated as the work’s author by name, under a pseudonym, or anonymously. If you prefer not to give credit to the designer, you should agree on this in writing. There is no right and wrong route, but it is an issue that you need to resolve with the designer before you agree to hire him.
A derivative right is the right to use an existing work, in whole and/or in part, to create a new work. Although your designer is creating a website, you may find that the works the designer create for you are useful in a different context. Do you have the right to use these works in a different manner or form? What does your agreement state about making derivative works? You may want to use some of the website interface features (colors, fonts, and images) as part of your offline marketing materials (brochures, booklets, business cards).
You may also want to use elements of the design as a trademark. You may want to maintain the right to do these things without obtaining permission from the designer who created your website. Add this to your checklist of clauses to your designer’s agreement.
Exclusive rights means that others are prohibited from using a work without the permission of the copyright holder of that work. Whether your agreement with your designer results in all copyrights in your website being transferred to you (the ideal case) or in these rights being controlled by you through a licensing agreement, you will want de facto exclusive rights to your website design. In your contract, therefore, you should make sure the designer agrees not to reuse the materials he created for your website for others. Otherwise you may end up dealing with your competitors using a very similar design.
This is also something to consider when reviewing the use of third party material in your website. If you do decide to use third party content, you should decide, when clearing the rights to use it, whether or not you also require exclusive rights to this material. For example, if the third party material is a photograph, would you be happy if this photograph were to appear, as well, on a competitor’s website?
If you end up entering into an agreement with the designer, make sure it includes the following elements. While they are not particular to copyright issues, they will make for a stronger contractual agreement:
– Your contract should be in writing, preferably in a hardcopy format.
– Make sure the contract properly identifies the other party. For example: Is it an individual or a company? What is the designer’s full name and address? If the other party is an individual, consider taking a copy of their ID.
– If you are entering into a contract with a company, make sure the company indemnifies you if you are sued by the company’s own disgruntled employees or contractors. More often than not, you do not know if the company has bulletproof agreements with its own employees. What you do not want to happen is a fight between the design company and its own employees to negatively impact your business. To you, the content created by the company’s employees is third party content, unless the company can guarantee that it owns it and will compensate you for any losses if it does not.
The Copyright Modernization Act introduces a new kind of exception from the general rule that no one can use works protected by copyright other than with the consent of the copyright owner. The new exception is for the so-called “non-commercial user-generated content”.
Unlike the previously discussed exceptions qualified by the notion of “fair dealing for the purpose of…”, the newly added Section 29.21 of the Copyright Act simply states that “[i]t is not an infringement of copyright to do certain things under certain circumstances.
Adding to the already confusing numbering of the Copyright Act, Section 29.21 is now contained in a separate part of the Act titled “Non-commercial user-generated content”, whereas the part titled “Fair Dealing” now appears to only cover Sections 29, 29.1, and 29.2.
What this means is that no fair dealing analysis appears to be necessary to escape liability for copyright infringement if the use satisfies the conditions set out in paragraphs 29.21(1)(a) to (d), i.e.:
– non-commercial character;
– citing the source;
– reasonable grounds to believe that the underlying work itself did not infringe copyright; and
– lack of substantial adverse effect on the market.
A simple comparison with the CCH factors shows that the list in Section 29.21 does not include factors such as alternatives to the dealing, nature of the work, and amount of the dealing.
This may lead to the creation of a “super-exception” that would bypass even the already relaxed factors set out in CCH.
While most commentators refer to “user-generated content” provisions as if they are meant to deal only with uses best exemplified by amateur videos uploaded to YouTube, there is nothing in this section that implies that it cannot be used for any non-commercial transformative use. There is nothing to suggest that “users” should be amateurs or fans.
Indeed, the definition of “use” in s. 29.21(2) is “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.” The language of s. 29.21(1) refers to any individual using an existing work … “in the creation of a new work or other subject-matter”.
So here’s a million-dollar question: if Section 29.21 contains an exhaustive list of factors, does it mean that a non-commercial unauthorized parody will fall both under the specific parody exception that requires a full fair dealing analysis and under the non-commercial user-generated content exception that only requires that the use be non-commercial and that it wouldn’t have adverse impact on the market?
If any non-commercial use that leads to the creation of a new work or subject-matter is a complete defence to a copyright infringement claim, then it would mean that two out of six fair dealing factors (non-commercial purpose of the dealing and effect of the dealing on the work) will be determinative. This creates a completely different legal landscape for copyright owners. Essentially, it deprives them of the right to control the use of their works or other subject-matter for the purpose of creation of derivative works, as long as such use is non-commercial and does not destroy the original work’s market.
As I have said many times, copyright is not about getting paid, it’s not about the money. It’s about control. By taking from copyright owners the right to control the use of their property – even if does not cause immediate financial deprivation, Copyright Modernization Act legalizes intellectual squatting.
Copyright has never been conceived to protect only those interests that an author is currently exploiting or is likely to exploit in the future. By way of analogy, the fact that a house owner does not live on the premises and refuses to rent the house to anyone, does not result in a “market failure” and would not excuse squatting. An author owns their monopoly the same way the house owner owns the house, with the exception that the author cannot install a lock, set up an alarm or hire armed guards to protect their works. Once the work has been disclosed, the law is the only thing that stands between the author and those who wish to use the work without authorization. Even when the author assigns their copyright to corporations, the corporations are only going to be able to reward the author if the law guards their economic interests and allows them to fully exploit the monopoly. It should be up to the copyright owner to determine when, how and by whom the works are to be used.
BOTTOM LINE: Copyright owners should be very concerned about this amendment. It is very unfortunate that your rights to control the works you created or paid to create are being encroached on all fronts. Just because someone is ripping you off without the motive of profit, doesn’t make you feel any better, does it?
PS. This post was updated following a reader's comment. Thank you, Matt.
Regrettably, the Copyright Modernization Act adds “parody and satire” as yet another purpose in respect of which fair dealing would not require consent of the copyright owner.
Granted, I’m not a big fan of any expansion of the fair dealing, but this is one area that I am particularly passionate about. Maybe it is because of the major paper I wrote on this topic a few years ago.
Canada along with Australia will now be the only two countries whose legislation contains an explicit exception for both parody and satire. Like Australia and pretty much all other countries, Canadian legislation does not contain the definition or even anything remotely resembling a definition of either parody or satire, which is always helpful when the government takes away your rights.
The distinction between the two was initially pronounced in the leading U.S. Supreme Court parody case, Campbell v. Acuff-Rose Music, 510 US 569, 114 S. Ct. 1164 (1994), where both the majority and the concurring judge agreed that
”[i]t is not enough that the parody use the original in a humorous fashion, however creative that humour may be. The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole (although if it targets the original, it may target those features as well).”
Unlike parody, satire may target anything, as long as it has an element of “funniness” to it.
Based on the proximity of the target of the purported parody or satire to the underlying work, resulting works may be allocated on a spectrum.
One end of the spectrum would reflect the narrowest interpretation of parody, where the primary (if not the only) target of the parody is the underlying work itself. Very close to that end would be parodies targeting the author of the underlying work, or its performer. In a way, a narrow interpretation would reduce parody to a humorous variation of criticism. On the other hand, even the narrowest interpretation of parody has a very important distinction from criticism in that parody is both the critique and the object of the critique merged in a single work, whereas criticism usually presupposes parallel use (quotation) of the underlying work and its critique, not necessarily in the same genre.
On the other end of the spectrum would be satire that does not target the underlying work at all. In my opinion, one should not be allowed to use an added sparkle of humour as an excuse to infringe upon a protected work, where the resultant work has nothing to do with the underlying work, its author, performer or even context.
For the sake of example proving the complexity of the spectrum, let’s take the famous theme song from “Titanic” and completely replace the original lyrics with new funny ones. Under the strictest definition of parody, such use would be a parody only if the lyrics were targeted at ridiculing the song itself. A slightly more relaxed definition would allow to add the song’s authors (James Horner and Will Jennings) or performer (Celine Dion) as legitimate targets. An even broader definition would allow to include the film’s actors associated with the song (Leonardo DiCaprio as Jack Dawson, Kate Winslet as Rose DeWitt Bukater or others), the film itself, or its creators (James Cameron, 20th Century Fox). A further step away from parody and towards satire would be to ridicule the American cinematographic culture, luxury fleet, juxtaposition of the poor and the rich and other such matters if only remotely connected to the song. As the extreme of the spectrum could be a funny song about a toothbrush, or any other object completely unrelated to the underlying song. Just short of this extreme is the example of the music used to create a song with funny lyrics meant to raise awareness about the lack of the government’s attention to a socially important issue. In this case, the resulting “satire” still has nothing to do with the original song, other than it uses its music.
In the Campbell case, Justice Kennedy stated:
“…doubts about whether a given use is fair should not be resolved in favor of the self-proclaimed parodist. We should not make it easy for musicians to exploit existing works and then later claim that their rendition was a valuable commentary on the original. Almost any revamped modern version of a familiar composition can be construed as a ‘comment on the naiveté of the original’, because of the difference in style and because it will be amusing to hear how the old tune sounds in the new genre. Just the thought of a rap version of Beethoven’s Fifth Symphony or ‘Achy Breaky Heart’ is bound to make people smile. If we allow any weak transformation to qualify as parody, however, we weaken the protection of copyright. Any underprotection of copyright disserves the goals of copyright just as must as overprotection, by reducing the financial incentive to create.”
While Campbell is the leading case, the important thing is to realize that it did not resolve the question whether the creation by 2 Live Crew of a rap version of Roy Orbison’s song “Oh, Pretty Woman” was a parody excusable under the fair use doctrine. The U.S. Supreme Court specifically rejected the view that parodies are per se fair use, but found that the appeals court erred in its finding that the commercial nature of the parody made is presumptively unfair. It then remanded the case for further proceedings for the issue of whether the use was fair to be decided in the lower instance court.
Let’s think about the purpose of this exception for a moment. This purpose is understandable in the case of a narrowly interpreted parody that targets the work that is being parodied. Few authors would be happy about such use.
As an aside, one of the counterarguments to this assumption would be the example of Weird Al Yankovic who, according to the 2006 Gowers Review of Intellectual Property “has received 25 gold and platinum albums, four gold certified home videos and two GRAMMYs® by parodying other songs, but he had to ask permission from rights holders”. Somehow, the Gowers report was meant to prove that the parody exception is necessary and used the example of Weird Al to back up this proposition. In my paper, I wrote:
”Indeed, how can a special exception be necessary if there is a living example of an artist who sold 25 gold and platinum parody albums, but never had an urge to create unauthorized parodies? Does the report suggest that he would have sold more platinum albums if he was allowed to create parodies without asking permission? Or would his parodies be any better? Indeed, the example of Weird Al Yancovic clearly proves the contrary, that no special exception for parodies is necessary.”
So let’s go back to the purposes of the exception. Even though I disagree with the parody exception, I can at least understand why it could make sense, in certain circumstances, to allow people to create unauthorized parodies ridiculing the original work that is being parodied.
On the other hand, in the case of satire, I truly cannot fathom how the satire exception can meaningfully coexist with the right of the author to control the creation of derivative works based on the original. Yes, I am aware that there is no explicit right to create derivative works listed in the Copyright Act. However, this is implied in the reproduction right, which covers reproduction of a substantial part of the work.
In other words, if any work can be made into anything else under the pretense that it is satire without consent of the copyright owner, what would stop people from mechanically merging two works – for example, posting a youtube video using Justin Bieber’s “U Smile” (I had to google that one) over the still photograph of Joseph Robinette Biden’s smirk during the vice-presidential debate? Just that the dealing has to be fair?
Again, if fairness is the only thing left to prevent unauthorized use, then why have the Copyright Act at all? Why not just have one paragraph stating that “If a court is of the opinion that it would be unfair to use a work without the copyright owner’s consent, the copyright owner may prohibit unauthorized use of his work, but only to the extent that such prohibition would not be contrary to the best interests of the public?” Why have rights and exceptions? Why have categories and purposes?
The new exception would be able to serve as an excuse for virtually any unauthorized use of a work that has been modified into or merged with some other work. How about cracking the new Windows® 8 OS, changing the Windows® logo with an image of a half-eaten carrot, and uploading it to PirateBay claiming that, in fact, it is a permitted fair dealing with the software for the purpose of satire? How about scanning Michael Geist’s new book into text, replacing each and every occurrence of the words “user rights” with the word “communism”, and then printing and selling it on ebay? How about saving every episode of “Dragon’s Den”, and re-recording it at twice the speed – wouldn’t it be funny to listen to Mr. Wonderful’s voice an octave higher (unless viewed through a conveniently supplied player that plays the view at half the speed)?
BOTTOM LINE: This is a very dangerous amendment. Not only does it unnecessarily expands the scope of how one can use copyrighted works without consent, it does so without any meaningful objective, unless the objective is to make a parody of the Copyright Act by creating an exception that is so broad that it can serve as justification for virtually any infringement.
The parody and satire exception clearly violates the requirements of the 3-step test of the Berne Convention and Article 13 of TRIPS. In fact, it opens Canada (as it has opened Australia) up to claims under WTO dispute resolution mechanisms for adopting a law allowing a copyright exception that is overly broad and is not confined to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
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Tags:CollectivismPhilosophySmall BusinessNew Copyright ActFair Dealing