Proposed Canadian Copyright Law Would Legalize Fanworks

Canada’s proposed copyright bill, the Copyright Modernization Act, also known as bill C-32, would legalize user-generated works like fanfiction, vids, mashups, and other forms of remix if passed in its current form. The provision, which is being called the “YouTube Exception” by a lot of legal commentators, “grants Canadians the right to create remixed user generated content for non-commercial purposes under certain circumstances.”

The relevant portion of the bill is below the cut. (Thanks to Grace Westcott for the information.)

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.

News of Note
  1. Q commented:

    So, does point D mean that one still cannot charge money for their fanwork? Or they can? The way I’m reading it (…the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, …) means that if you make a hundred bucks selling Harry Potter fanfiction, that’s not exactly going to hurt JKR or WB.

    • fcoppa commented:

      I wouldn’t want to say you could or couldn’t ever sell a transformative work under the terms of the entire copyright bill, as I’m not that familiar with the rest of it. But THIS particular section cited above is explicitly for the protection of “Non-commercial User-generated Content.” So if you were charging money, your work would NOT fall under this provision. Conversely, if your work WAS a noncommercial remix, the bill pretty explicitly states that you’d be legal.* Clear as mud?

      * Also note: there’s some argument going around also about digitally locked works, becuase there might be some conflict between the legality of remix under the bill and the illegality of breaking digitally locked works. Many people are asking that the bill explicitly clarify that point!

      • Q commented:

        But isn’t there a difference between ‘commercial’ and ‘profitable’? Mary-Sue Average (How’s that for a paradox) can sell Sailor Moon bookmarks or prints, but she’s not representing anyone but herself and her hobby, but what if Gary-Stu Normal was part of a fan-movie ‘business’ and was selling is fan made Batman episodes under a registered production company?

        • fcoppa commented:

          I am not a lawyer, but I don’t think there is a difference between commercial and profitable–lots of businesses aren’t profitable! That being said, there are probably amounts that are too small to deal with, that no company would actually recognize as “commerce” in any real sense (I mean, your original example is like, babysitting money!) But if you’re looking for a real answer, I can pass this question on to the Canadian specialist on our legal team, who IS a lawyer. :)

          • ratcreature commented:

            However baby sitting is considered a commercial activity that counts as a job within the law (at least here), and while it’s common to do it under the table you can run into legal consequences for this. I know of people scraping by on unemployment/welfare who got into trouble for “welfare fraud” because they did things like watching kids every now and then for neighbors without declaring it to the agency (and it was not a regular daily thing that would have been like a job).

            Of course doing odd jobs and such for a little extra money while getting welfare isn’t unusual as you can’t actually live decently what’s alotted to you per month, especially not in a city as mine that is relatively expensive. But officially that is “welfare fraud” if you don’t disclose your extra income, even if it was just an extra €20 a month or something like that. All it takes is say a vindicative ex-boyfriend turning snitch and the authorities will persecute, because officially baby sitting is considered work that you have to declare as income, and the employer ought to do the paperwork for minimal income jobs so that both tax and social security authorities are aware of it (afaik they simplefied the set up for that here not long ago for “employers”, precisely to try to move all the house/home related odd jobs like cleaning, dog walking, garden stuff and baby sitting from the tax evasion prone cash exchanges into the official labor market).

            So it doesn’t really matter how common it is that this is done under the table or that it was just a pittance as soon as it is brought to the attention of officials.

  2. Paraka commented:

    For the most part this bill is great, however there’s one section on digital locks that is very close to the US DMCA digital locks provision which leaves all exemptions, including the one mentioned above, dependent on a lack of DRMs. If a DRM is present, the digital locks provision will supersede fair dealing (with only a few exceptions).

    To quote Michael Geist: “In fact, the Canadian digital lock provisions are arguably worse than those found in the U.S., with fewer exceptions and greater difficulty to amend the rules. The Canadian DCMA provisions are virtually identical to the U.S. – a handful of hard-to-use exceptions, a ban on the distribution and marketing of devices (ie. software) that can be used to circumvent, and a presumption that any circumvention is an infringement.

    This means that manufacturers are ultimately given the choice over whether or not consumers will have any rights with regards to their products. This is a huge concern for Canadians in general and, with regards to fandom, it’ll definitely affect vidders who will not be allowed to rip source materials.

    I strong urge Canadians to fight this part of the bill. The Conservatives have said they are willing to compromise on this bill in order to get it through (although Heritage Minister, James Moore has been resisting suggestions of change, Tony Clement, the Industry Minister, has shown himself to be open).

    I made a post on this with links (and a really informative video!) to more information when this first came out, as well as the relevant contact information.

    As the bill stands it’s not really better for Canadians.

    • fcoppa commented:

      I’ve been following the digital locks section too, and Michael Geist is totally right that we need clarification that digital locks can’t be used to stop things otherwise explicitly permitted by the law. Your post is great and I will signal boost!