Canadian Copyright Law Q&A – Part 2

This is the second in a series of Q&A posts with Graham Reynolds, a Canadian copyright scholar from Schulich School of Law at Dalhousie University in Halifax, Nova Scotia, Canada. The Q&A focuses on Bill C-11, which went into effect near the end of 2012 and made some significant changes to Canada’s Copyright Act, some of which influence the way fanworks are treated under Canadian law. The first post, in which Graham answered questions about the general contours of the law and about the law of “fair dealing”, is available here.

Today, Graham addresses whether the new law expressly legalizes non-commercial fanfiction; parody and/or satire; fanart; and vidding. Spoiler alert: the answer is “no.” It does, as Graham puts it, “create considerable space for the creation and dissemination of these types of works.” As with all legal questions, courts may interpret the law in a favorable or unfavorable way, but non-commercial works of fanfiction and fanart that do not compete with the original appear to be more protected under Canadian law than they were before. However, the new law has arguably made things worse for vidders by adding anti-circumvention measures akin to those in the U.S. DMCA (minus the rulemaking exception for non-commercial fanvids that the OTW was involved in securing).

As before, these answers aren’t legal advice, and if you need specific legal advice Graham (and we) advise you to consult with a lawyer and/or send a query to the OTW Legal Committee.

— Betsy Rosenblatt, Legal Committee

3. Does C-11 expressly legalize non-commercial fanfiction?

No. Non-commercial fanfiction, however, may be protected from claims of copyright infringement by one of two doctrines. First, the doctrine of fair dealing (discussed in last week’s post) may protect fanfiction made for the purpose of research, private study, parody, satire, criticism, or review, depending on the circumstances surrounding the creation and/or dissemination of the fanfiction. Second, Bill C-11 set out new users’ rights relating to non-commercial user-generated content. These rights are set out in s. 29.21(1) of the Copyright Act.

This section states that:

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.

This does not expressly legalize non-commercial fanfiction, but it creates considerable space for the creation and dissemination of these types of works. There are some points of uncertainty with respect to this defence, however, which may impact its usefulness to creators of non-commercial fanwork as a possible defence to copyright infringement. Namely, it is unclear exactly what the scope of “non-commercial purposes” might be (s. 29.21(1)(a)). Similarly, it is unclear what the scope of “a substantial adverse effect, financial or otherwise” might be (s. 29.21(1)(d)). Will courts take a narrow or a broad view of what constitutes an adverse effect? The inclusion of the word “otherwise” adds to the uncertainty because of the lack of guidance about what might constitute a non-financial adverse effect.

It is possible that the unauthorized use of copyrighted material to create fanworks may infringe moral rights (discussed in more depth in a future post). Neither fair dealing nor the user’s right relating to non-commercial user-generated content is a defence to moral rights infringement.

4. Does this law expressly legalize all uses of copyrighted material for the purpose of parody or satire?

No. There are two primary defences to the unauthorized use of copyrighted material for the purpose of parody or satire under the Copyright Act: fair dealing, and the new user’s right added to the Copyright Act as a result of Bill C-11 that relates to non-commercial user-generated content. While both of these defences create (or expand) space within which parodies or satire can be created and disseminated, they do not expressly legalize all uses of copyrighted material for the purpose of parody or satire.

With respect to fair dealing, although Bill C-11 added parody and satire to the list of fair dealing purposes, this does not mean that all uses of copyrighted material for the purpose of parody or satire will be considered to be fair dealing. As noted in the previous post, these uses must also be considered to be fair. In determining whether a dealing is fair, courts will weigh factors such as the purpose of the dealing, the character of the dealing, the amount of the dealing, alternatives to the dealing, the nature of the work, and the effect of the dealing on the work. With respect to the final factor (the effect of the dealing on the work), one point to consider is whether the creation of the parody or satire “adversely affects or competes with the [copyrighted source] work” (Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36, at para. 48). Based on recent case law, it appears as if Canadian courts are more likely to accept that a dealing is fair if it is not competing commercially with the copyrighted source work.

As discussed above, the new user’s right relating to non-commercial user-generated content only relate to works disseminated “solely for non-commercial purposes.” To the extent that a parody or satire is disseminated for commercial gain, therefore, it likely cannot take advantage of this defence to copyright infringement. Also, the limitations discussed above with regard to non-commercial fanworks apply similarly here. It is unclear exactly what the scope of “non-commercial purposes” might be (s. 29.21(1)(a)). Similarly, it is unclear what the scope of “a substantial adverse effect, financial or otherwise” might be (s. 29.21(1)(d)). Will courts take the view that a non-commercial parody or satire creates a non-financial adverse effect to the exploitation or market for the original work? Also, as noted above, it is possible that the unauthorized use of copyrighted material for the purpose of parody or satire may infringe moral rights.

(NB: In response to a previous post, someone queried the legal distinction between parody and satire. While this is not a hard-and-fast rule, generally speaking courts define a parody of a work as something that pokes fun at the original work, and satire as something that uses the original work (or some other device) to poke fun at the world more broadly. — Betsy)

5. Does C-11 have the same impact on visual fanart, like non-commercial photomanipulations or .gifs, as it does on textual works like fanfiction?

Yes. Both fair dealing and the user’s right relating to non-commercial user-generated content (the two defences to copyright infringement that have the greatest relevance for visual fanart) are structured in such a manner to apply to all “works” under the Copyright Act (literary, musical, artistic, and dramatic).

6. What about vids? Is it expressly legal in Canada to circumvent the copy protection on DVDs or BluRays, set ripped video clips to copyrighted music, and post the resulting non-commercial fanvids online?

No. Bill C-11 implemented legislative protection for technological protection measures (see Copyright Act, ss. 41-41.24). Among other provisions enacted as a result of Bill C-11 is a prohibition against circumventing a technological protection measure without the authorization of the copyright owner (s. 41.1(1)(a)). Circumvent is defined in part as “avoid, bypass, remove, deactivate, or impair” (s. 41(a)). Although numerous exceptions to this prohibition have been incorporated into the Copyright Act (see ss. 41.11-41.18), none of these exceptions appear to encompass the situation described in the question above. More specifically, the fact that a use may be a fair dealing is not an exception to the prohibition against circumventing a technological protection measure.

(NB: Article 41.21(1) does specify that the Governor in Council “may make regulations (a) prescribing additional circumstances in which paragraph 41.1(1)(a) does not apply,” and may consider factors such as “whether not being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect criticism, review, news reporting, commentary, parody, satire, teaching, scholarship or research that could be made or done in respect of the work.” This would seem to leave some potential for future rulemaking along the lines of the U.S. model. However, no such regulations exist now, and it is impossible to predict whether they ever will in the future. — Betsy)

Stay tuned for more Q&A with Graham Reynolds! Topics to come include questions about Canadian “moral rights,” trade-mark rights, and rights of personality; and what the new law means for fanwork creators outside of Canada. For the text of the new law, see Bill C-11. For the full text of the Copyright Act, as amended, see the Canadian Copyright Act.