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Fair Use or Fair Dealing? A Comparative Glance into Canadian Copyright Law on YouTube

As the largest user-built collection of videos online, YouTube has had to deal with countless claims of copyright infringement since its inception. Before the company’s stringent rules regarding content were put into place, users could upload whatever they wanted, including full-length feature films and television shows. Facing heavy repercussions from the rightful owners of this content, YouTube put into place its Content ID technology, a machine learning software and rapid-fire way to flag videos containing copyrighted content. This sheltered the platform from lawsuits directly implicating it for the most part, allowing it to benefit from the protections offered to Online Service Providers (OSPs) under the Digital Millennium Copyright Act (DMCA) known as “safe harbor” protections. As long as it does not benefit from, know of, or willingly ignore copyright infringement, and it acts upon any reports it receives expeditiously, YouTube is free of any liability resulting from its user’s illegal uploads. This principle was solidified in Viacom Intern., Inc. v. YouTube, Inc., where the plaintiff, Viacom Inc., alleged infringement of its copyrighted material in 63,497 video clips on the platform. It further alleged that YouTube staff were aware of the potential for there to be unauthorized of their materials through the mere upload of their clips. The District Court found that YouTube did not merit the loss of its safe harbor protections, as it did not itself incite users to upload any copyrighted material, nor did its staff ever reference specific individual video clips. Despite the relative victory for the platform, YouTube implemented significant changes to ensure similar recourse would never be taken against them personally again. Content ID was invested into heavily going forward, and the website became more efficient than ever in meeting its reporting obligations as an OSP under the DMCA, and fostering close relationships with copyright holders. 

In order for a company to stake its initial claim to content on YouTube, it must first “provide evidence of the copyrighted content for which [it] control[s] exclusive rights”. Once it has done so, YouTube will add the relevant video or audio file to its Content ID repertoire of copyrighted material. Every time a new video is uploaded to the platform, its audio and video content is quickly “scanned” and cross-referenced with every entry within Content ID. If there is a match, YouTube flags the video and communicates with the copyright holder so that they can decide whether to do nothing, suspend or block the video, or divert the revenue stream to themselves. Many creators have criticized the program’s indiscriminate flagging of content which they believe falls under the doctrine of “fair use”. The term refers to a “limited exception to the individual’s private property rights in his expression—rights conferred to encourage creativity—to promote certain productive uses of copyrighted material.” In the 1994 case Campbell v. Acuff-Rose Music, Inc., the US Supreme Court expressed its opinion that fair use must be evaluated on a case-by-case basis, as there is “no presumption for or against the fair use of a work.” 

The applicability of the fair use defence against allegations of copyright infringement is determined by four principles set out in § 107 of the DMCA:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

The first principle is further split into two determinations: (1) whether the use is transformative in nature, and (2) whether the use is commercial in nature. On YouTube, the transformative nature of a video is the most often cited defence when a copyright holder claims a content creator’s video. As many channels have now adopted the “commentary” title, it has been increasingly difficult for this brand of creator to remain motivated to upload consistently when the use of a 10-second snippet could potentially demonetize the video they just spent days editing. In Campbell, the court defined transformative use as one that “adds something new, with a further purpose or different character, altering the first [work] with new expression, meaning or message.”

Canadian YouTube creators are subjected to the same standards as their American counterparts, for the most part, as the company’s headquarters is located in San Bruno, California. There are some situations, however, that call for the application of our very own copyright law. 

Here in Canada, most general copyright-related subject matter is covered by our Copyright Act. This includes the exceptions to copyright infringement, which protect users of copyright-protected materials in certain scenarios. Section 29 of the Act, much like § 107 of the DMCA, clarifies when users of such materials can be protected by the doctrine of “fair dealing” (comparable to the American doctrine of “fair use”). It states the following: 

Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

Section 29.21(1)a)-d) continues by presenting what is expected of users of protected materials falling under the umbrella of “fair dealing”:

(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.

The limits of fair dealing on the YouTube space within Canada were laid out clearly in Vancouver Aquarium Marine Science Centre v. Charbonneau, a 2017 decision made by the British Columbia Court of Appeal. After publishing a damning documentary on the mistreatment of certain aquatic creatures within the Vancouver Aquarium Marine Science Centre, the appellants, a filmmaker and his company “Evotion Inc.”, were the recipients of an interlocutory injunction seeking to have certain segments removed from the film. The aquarium cited a breach of contract and the fraudulent use of their intellectual property as much of the footage was taken within the confines of their facilities. Gary Charbonneau, one of the appellants, had previously agreed to the conditions found in the Aquarium’s Photography, Video and Filming Policy and the Terms and Conditions of Use of their website, both of which disallowed the commercial use of any footage taken within the premises without permission. He further entered into a written agreement referred to as the Filming Location and Trademark Usage Agreement, which granted him the right to use footage he had taken during interviews with aquarium officials (segments which were uncontested in the complaint).  

The documentary, Vancouver Aquarium Uncovered was uploaded in its entirety to both Vimeo and YouTube on January 17, 2016. Less than a month later, the aquarium notified both websites of the action levied against the appellants. In response, Vimeo quickly removed the video from its platform—YouTube, however, “refused on the basis that it believed that the ‘content is protected by fair use, fair dealing, or similar exception to copyright protection.’”. 

In their response to the aquarium, YouTube stated that: 

[…] [They] are very concerned that your copyright notification may not be valid for some or all of the videos identified in your notification. Please keep in mind that in many countries, it is legal to use copyrighted works in specific ways without the owner’s authorization, particularly for transformative purposes such as news reporting, parody, commentary, or review.

Some countries protect such uses under doctrines of “fair use” or “fair dealing”, while others allow for specific exceptions to copyright protection.

In the decision preceding the appeal rendered by the Supreme Court of British Columbia in 2016, the chambers judge granted the interlocutory injunction. As a result, the appellants were instructed to remove 15 segments of film within the documentary. On appeal, Judge Bennett set the injunction aside, citing the turn copyright law has taken in contemporary times from a previously copyright holder-centric focus to one more flexible and open to creative liberties. Even as recently as 1990, the Supreme Court strongly believed that the rights of owners of copyrighted materials had to be prioritized far above any other party’s, an assertion made clear in Bishop v. Stevens. The decision touted the importance of ensuring that the best interest of owners of copyrighted material is sought at all time to ensure that the works’ original intent is respected in all subsequent reproductions. Only 12 years later, however, the country’s highest court reversed its set precedent in a decision which proved to be enormously consequential to Canadian copyright law. In Galerie d’art du Petit Champlain inc. c. Théberge, the Supreme court stated that: 

The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated).

[…]

Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization. This is reflected in the exceptions to copyright infringement enumerated in ss. 29 to 32.2, which seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review and to add new protections to reflect new technology […]. 

Two years later, the court released another decision which helped clarify which factors could be considered when determining the fairness of using copyrighted materials. In CCH Canadian Ltd. v. Law Society of Upper Canada, the court borrowed from the aforementioned American doctrine of fair use to arrive at the following (non-exhaustive) criteria: 

(1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Although these considerations will not all arise in every case of fair dealing, this list of factors provides a useful analytical framework to govern determinations of fairness in future cases.

Having considered the above jurisprudence, Judge Bennett, presiding over Charbonneau for the British Columbia Court of Appeal, determined that the documentary’s use of the contested film could be protected by fair dealing if sent to trial, and that the aquarium did not suffer any irreparable harm as a result of its publication. Furthermore, the use of the footage was protected by section 2(b) of the Canadian Charter of Rights and Freedoms, which protects freedom of expression. As stated by Judge Bennett: 

The film is part of a public dialogue and debate on the issue of whether cetaceans should be kept in captivity, and thus, the Charter value of freedom of expression must weigh against granting the injunctive relief.

The appeal was allowed and the injunction set aside, “pending a determination of the action on its merits”. 

This relative victory to Canadian creators bodes well for the future of online content as a whole, but changes little in the way of how YouTube operates. In the case noted above, the massive platform acted diligently in flagging a potentially baseless claim of copyright infringement, but it remains to be seen if they will always do the same, especially when dealing with claims made by equally massive media conglomerates with far more resources than most online creators.

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