This article was written jointly by Vincent Bergeron and Jean-François Normand from ROBIC.
As is the case everywhere on the planet, we observe a great deal of interest in Europe since the last few years for everything digital. Several new laws have been passed in Europe to more effectively regulate the new digital reality, including the General Data Protection Regulation and the Directive on Copyright in the Digital Single Market. Moreover, in May 2018, the European Audiovisual Observatory published a detailed report titled The legal framework for vide-sharing platforms. What is the situation in Canada?
During an interview last May, YouTube CEO Susan Wojcicki provided some surprising statistics: the popular video-sharing platform is visited by 1.8 billion people each month who consume a total of 150 million hours of content daily. Maintaining this flow of visitors is possible thanks to, among other things, the very large quantity of streaming content that is shared, namely the uploading of 563 hours of content each and every minute. According to the 2018 Music Consumer Insight Report published by the International Federation of the Phonographic Industry (IFPI), music videos (whether or not official video clips) that are posted on platforms such as YouTube account for 52% of all of the streaming music listened to in the world. That leaves very little market share (28%) to paid streaming services and, accordingly, little in terms of royalties for copyright holders.
It is in this context where shared videos take on a growing role in the field of entertainment that the European Audiovisual Observatory published, in May 2018, a report titled The legal framework for video-sharing platforms, which report presents an extensive review of the legal and factual situations surrounding the sharing of video content on online platforms. Unfortunately for us, the report only tackles the issue from a European legal standpoint. That is why we raised questions on the situation in Canada with respect to copyright and video-sharing platforms, although in a more targeted manner (the European report counts 162 pages) and namely from the angle of certain recent exceptions introduced a few years ago.
The Copyright Act: a YouTube exception that will have to evolve?
Many will remember that, in June 2012, the Parliament of Canada adopted Bill C-11 (An Act to amend the Copyright Act) aimed at introducing a new exception applying to non-commercial user generated content. To summarize this “new” exception, if a person creates a new work that includes content from a pre-existing protected work (for example, the video of your wedding with the summer’s greatest hit as the musical score) and if i) the new work is not used for commercial purposes, ii) the source of the borrowed work is mentioned, iii) the borrowed work is not in itself a counterfeit and iv) the new work does not have a substantial adverse effect on the exploitation of the original work, the reproduction and distribution of the borrowed work in this context are then not considered as an infringement of copyright (refer to section 29.21 of the Copyright Act). This is commonly referred to as the “YouTube exception.”
At the time these lines were drafted, we had not identified any case where this exception had been invoked before the courts – With the exception of Vancouver Aquarium Marine Science Centre v. Charbonneau, however, seeing as the debate involved an interlocutory injunction and the issue of the enforcement of section 29.21 of the Act was not dealt with – or statistical census regarding the compliance or non-compliance by users of the criteria stipulated in section 29.21 of the Act. However, it should be noted that, in our opinion, it is particularly difficult or even impossible, given the absence of data provided by the platform itself to this effect, to identify the creators of Canadian content to which the Copyright Act applies among the mass of users of video-sharing platforms such as YouTube and Facebook that are usually hosted and operated in the United States. In this regard, professor Michael Geist pointed out some time back that YouTube had muted the background music presented in a commemorative video published by one of his family members because it supposedly infringed copyright. It was clearly a case covered by the non-commercial user generated content exception (to the extent that the source of the original musical work was mentioned).
Obviously, the legislative amendments made in 2012 to the Copyright Act already date back some time considering that the online entertainment industry evolves very rapidly. The five-year review of the Act was scheduled for 2017, but it seems that work will not be completed before 2020, i.e., after the next federal election. It will be interesting to see what tangent Canada takes. Will it follow Europe’s example with the Directive on Copyright in the Digital Single Market, project, which increases the responsibilities of sharing services namely when it comes to managing content that infringes copyright?
Negotiations to limit the responsibility of big players
However, it is interesting to note that, with respect to the accountability of online platforms, Canada accepted to include in the United States-Mexico-Canada Agreement (USMCA) safe harbor provisions that apply to interactive computer services (including video-sharing platforms) with respect to user-generated content, but only regarding infringements that are not related to intellectual property. According to the Canadian government’s official report, the objective is to ensure that “interactive computer services will not be inappropriately found liable for harms in civil litigation for content published on their platforms.” However, certain authors point out that such provisions similarly exist in the United States (section 230 of the Communications Decency Act) and are used by certain platforms to circumvent the law and host illegal content. At the time of writing these lines, the agreement’s final text was not yet available, but it will certainly shed light on the scope of these immunities. After all, the devil is in the detail.
There is no doubt that Canada’s legal framework with respect to copyright applying to online video content is currently evolving: the negotiation of the USMCA, the review of the Copyright Act and even certain major decisions that are expected in copyright law, namely with respect to the interpretation of the ‘making available’ right . It will be interesting to observe how Canada’s legal landscape will take form in terms of both platforms and copyright holders as well as users. Until then, feel free to share our article on your favourite platform!
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