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.

Near the end of 2012, a law called Bill C-11 made some significant changes to Canada's Copyright Act, some of which influence the way fanworks are treated under Canadian law. With that in mind, we're bringing you a series of Q&A posts written by Graham Reynolds, an Assistant Professor at the Schulich School of Law at Dalhousie University in Halifax, Nova Scotia, Canada. Graham teaches and researches in the areas of copyright law, intellectual property law, property law, and the intersection of intellectual property and human rights, so he's the perfect person to explain how the changes are likely to influence the law of fanworks in Canada.

We posed a series of questions to Graham, and will be posting his answers in this space over the next couple of weeks. 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.

Today, Graham answers two questions: first about the general contours of the law, and second about the law of "fair dealing" (which is a like the U.S. concept of "fair use," but as explained below, is somewhat different) In the latter, Graham walks through the requirements of what it takes for a fanwork to be considered "fair dealing" under the law.

-- Betsy Rosenblatt, Legal Committee

1. What is Bill C-11 and, generally speaking, what did it do?

Bill C-11 amended various aspects of Canada’s Copyright Act, R.S.C., 1985, c. C-42 (hence its official title, An Act to Amend the Copyright Act, S.C. 2012, c. 20). Many believed that this reform was long overdue. Canada’s Copyright Act had not been substantially amended since 1997. The short title of Bill C-11 – the Copyright Modernization Act – implies that Parliament’s motivation in enacting this legislation, at least in part, was to bring Canada’s copyright laws into the digital networked era.

The enactment of Bill C-11 resulted in several major changes to the Copyright Act. Among them are the expansion of fair dealing, the addition of a series of new exceptions to copyright infringement (or “user’s rights”, discussed in a future post), the implementation of legislative protection for technological protection measures (sometimes referred to as “digital locks”), the creation of a new (lower) range of statutory damages for infringements for non-commercial purposes, and the expansion of moral rights to include performers’ performances.

2. Under C-11, what is “fair dealing,” and how is it different from the U.S. concept of “fair use?”

Fair dealing, set out in ss. 29, 29.1, and 29.2 of the Copyright Act, is the broadest defence to copyright infringement in Canada. Under fair dealing, individuals have the “right” to use a substantial amount of copyrighted expression for certain purposes, without first having to seek or secure the permission of the copyright owner, provided their dealing is fair and, in certain circumstances, they satisfy several attribution requirements. The Supreme Court of Canada (SCC) has described fair dealing as a “user’s right” (CCH Canadian et al v. Law Society of Upper Canada, 2004 SCC 13 at para. 48 (CCH et al)), and has said that “[i]n order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively” (ibid.).

There are two steps to the fair dealing analysis:

First, anyone wishing to rely on fair dealing must establish that their dealing was for done for a "fair dealing purpose." The list of fair dealing purposes is set out in the Copyright Act, in the sections noted above. Prior to Bill C-11, there were five fair dealing purposes: research, private study, criticism, review, and news reporting. Bill C-11 added three additional fair dealing purposes: parody, satire, and education.

Anyone wishing to argue that their dealing was for the purpose of criticism, review, or news reporting must also satisfy certain attribution requirements. Specifically, they must mention the source of the copyrighted work and, if given in the source, the author, performer, maker or broadcaster (as appropriate).

Second, anyone wishing to rely on fair dealing must establish that their dealing was fair. “Fair” is not defined in the Copyright Act. The SCC, in CCH et al, above, set out a series of factors that “provides a useful analytical framework to govern determinations of fairness in future cases” (CCH et al, above at para. 53). These factors are: 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. Other factors may also be considered by Canadian courts in evaluating fairness. (NB: this is similar, but not identical, to the nonexclusive list of "fair use" factors in U.S. law.)

There is one major difference between the structure of Canada’s fair dealing defence and the U.S. concept of fair use. (While there may be many differences in how courts have applied these two concepts/defences, such a discussion is beyond the scope of this post to address). Under Canadian fair dealing, as noted above, the list of fair dealing purposes is closed. Under U.S. fair use (17 U.S.C. §107), the list of fair use purposes includes "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" -- but it is open-ended.

This difference, in my opinion, was of greater significance prior to the enactment of Bill C-11. I have argued elsewhere that prior to the enactment of Bill C-11, many transformative uses of copyrighted expression would not be protected by fair dealing. The expansion of fair dealing in Bill C-11, through the addition of parody and satire categories, has the potential to significantly expand protection for transformative uses of copyrighted works in Canada.

Stay tuned for more Q&A with Graham Reynolds! Topics to come include the specific impacts of the new law on fan fiction, fanart, vidding, fandom non-fiction, and 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 Canadian Copyright Act.

A lot of what the Legal Committee does is behind-the-scenes, so it's always exciting to be able to share a bit of public advocacy. On January 24, the OTW, together with the Electronic Frontier Foundation and Public Knowledge, filed an amicus brief in the U.S. 9th Circuit Court of Appeals in the case of Fox v. DISH Network.

The Fox v. DISH case concerns DISH's "Hopper" DVR, which--like VCRs and DVRs before it--allows users to skip commercials on recorded television programming. In some ways, the Hopper makes commercial-skipping more convenient than other DVRs, and Fox has sued DISH, arguing that the Hopper's DVR features violate U.S. Copyright law. Fox's position directly conflicts with the U.S. Supreme Court's landmark decision in Sony v. Universal ("the Betamax Case") in 1984, which held that home recording for the purpose of "time-shifting" is a lawful fair use.

Fox asked the District Court in California to shut down DISH's Hopper Service. The District Court denied Fox's request, ruling for DISH on most issues. But one holding caught the OTW's attention: the District Court said that when DISH's engineers made "intermediate" copies of television programs to ensure that the Hopper system was functioning properly, they were infringing. The court said that DISH's intermediate copies did not have a "transformative" purpose in that they did not alter the expression, meaning, or message of the original television programs.

The case is now on appeal to the 9th Circuit Court of Appeals--and the OTW thought it was important to speak out. Although Fox has argued that its case is just about DISH, Fox's argument could be extended to the sort of "intermediate" copying that vidders must do in order to make transformative vids. Thanks to the OTW and its allies, the Copyright Office has recognized that transformative vids constitute fair use, and that high-quality intermediate copying is necessary to create such transformative uses. Among the OTW's arguments in the brief was that when copying is done for purposes of fair use--such as the creation of transformative vids--that copying itself constitutes fair use. Fox wants to extend copyright to control the way that people watch TV, and its arguments could have wide-ranging effects if accepted. Fortunately, the law is not on Fox's side. The OTW filed this brief to help keep Fox from trying to change the law.

A PDF copy of the brief is available on our website.

The OTW is proud to announce an important legal victory for fan vidders and other makers of noncommercial remix videos, achieved in conjunction with our friends at the Electronic Frontier Foundation: the Register of Copyrights has recommended that the Librarian of Congress maintain the vidders' exemption from certain provisions of the Digital Millennium Copyright Act (DMCA).

As you probably know, the OTW is committed to the legal position that fanworks, including vids, generally represent "fair use" of their source material under U.S. copyright law. Although this theory has not been tested in the courts yet, it means that vidders ought to be able to use parts of their source in their works without being liable for copyright infringement. However, since the passage of the DMCA, vidders have had an additional legal problem. The DMCA forbids circumvention of access controls to protected works—in other words, ripping DVDs or source purchased from online services (like Amazon Unbox) to get the source to make the vids in the first place. The statute applies even if the ripper was going to put the source to a legal use, like making a vid. So while a copyright owner might not be able to sue a vidder for infringement, it still might be able to sue her just for accessing the source.

The DMCA is a bad law in general, not only for vidders. Fortunately, every three years, the Librarian of Congress has the responsibility of considering proposed exemptions to the DMCA which are technically necessary for otherwise legitimate uses. This means that individuals whose uses are covered by the exemption will not be legally liable just for circumventing access controls to get the source they need. In the last round, the OTW sought, and won, an exemption for vids. But each exemption must be re-approved each time, and so the OTW had to apply again this year, in the face of industry opposition that was much stronger than before.

Drafting work was done by the Legal committee, and Francesa Coppa, Tisha Turk, and Rebecca Tushnet appeared before the agency to testify. They were able to point to many examples of vids that hinged on access to high-quality source for their full effect, such as giandujakiss's "It Depends on What You Pay." And, in the end, the OTW once again persuaded the appropriate official to formally recommend renewal of the exemption—keeping the U.S. safe for vidders.

For those interested you can read the full decision (in PDF format) on the U.S. Copyright Office site or you can see an HTML version at Cryptome.

The application for the exemption is a great example of a project that benefits all of fandom and which would have been impossible without an organization that let us tap our combined resources. The OTW is grateful to all its members, whose support makes its legal work possible, and to the many others who assisted us!