In the digital world we live in, it’s common for individuals, in their personal or professional capacities, to post videos on social media that contain popular (and therefore copyrighted) songs. For example, a professional dancer or fitness instructor might post a video on Instagram of a choreographed routine to the newest Drake song.
Before the Copyright Act (the “Act”) was amended in 2012 to bring it in line with the realities of our digital lives, posting this type of video content, also known as User-Generated Content (“UGC”), without Drake’s permission, would likely constitute copyright infringement. But as our dependence on social media has evolved, so to has Canadian legislation, to reflect our new digital world.
“Non-Commercial User-Generated Content” Exemption
Under the Canadian Modernization Act, Canada’s Copyright Act was updated in 2012. Specific to this scenario, the updated act specifically contains provisions related to the intersection of UGC and copyright infringement. This provision allows an individual to create and publish UGC using existing copyrighted work without infringing copyright, subject to certain conditions. Who Can Rely on the Exception?
The individual creator of the UGC must satisfy 4 conditions in order to rely on the exception:
the UGC must be used for non-commercial purposes; and
the source of the copyrighted content must be given, where it’s reasonable to do so; and
the individual must have had a reasonable belief that the source wasn’t infringing; and
the use of the UGC must not “have a substantial adverse effect, financial or otherwise” on the market for the copyrighted work.
Instituting new legislation can be likened to buying new shoes. Great in concept; but needs to be broken in. Unfortunately, the Act does not clarify what qualifies as a “non-commercial purpose”. Knowing the parameters of a “non-commercial purpose” is crucial because it could mean the difference between being able to rely on the UGC exception or being found guilty of copyright infringement.
Take our professional dancer/fitness instructor example:
Did she post the video to express her love of dance, or
Did she post it because she teaches classes and wants to show off her choreography?
Is the latter reason a “non-commercial purpose”, if she posted the video on her personal Instagram account rather than the dance studio’s account?
Has her personal account sustained the level of following that constitutes her as an influencer, whereby she can monetize her posts through sponsored partnerships?
Without a clear definition of “non-commercial purpose”, there is no definitive answer to this question. And unfortunately, we will have to wait until what constitutes “non-commercial purposes” has been tested in Court to be able to provide more clarification. As it stands now, “non-commercial purposes” is ambiguously referenced in the Copyright Act, without definition, which causes a grey area.
Even if an individual can rely on the UGC exception, it is important to note that the UGC provision (and its exemptions) is specific to Canada. Therefore, although the individual could legally post their video in Canada under the UGC exception, they could still breach US copyright laws, for example, if their UGC happened to be viewed on a US platform. Moreover, each social media platform has its own policies regarding copyright infringement.
Technology, and the way we interact with it, changes much faster than the law can keep up, as evidenced by the Copyright Act. This leads to much legal uncertainty and potential for harm, both financially and reputationally. Therefore, when it comes to grey areas of the law, like the UGC exception, it is important to be cautious and seek legal advice