Mashed up content on social media sites would be illegal under new copyright law

Using copyrighted material for satire on social networking sites like YouTube is rampant, but it could also become illegal unless the federal government includes user rights in new copyright legislation, expected to be tabled when the government resumes business after Jan. 27, warns some of Canada's leading copyright lawyers.The Conservative government is expected to table new legislation when Parliament resumes after Jan. 27. Its previous bill, C-61, died when the fall election was called. However, lawyers warn that unless amended, the proposed legislation would not support the "mashup", or integration of text, graphics, audio, video and animation content that is common on social networking sites."Bill C-61 was a missed opportunity to deal with this very important issue," said Howard Knopf, an Ottawa lawyer with Macera & Jarzyna, LLP, who writes a blog on copyright issues and chairs the copyright policy committee of the Canadian Bar Association. "We need to see something (an act) on the side of the users, small creators, and new creators who want to be able to use satire and parody."A lawyer with David LLP agrees, saying copyright legislation needs to strike a balance that offers content producers protection for their works, without stifling creativity or the free movement of online information."We need a copyright system that allows people to sample other works (for appropriation)," says Tudor Carsten, who is a member of the Toronto firm's video games and interactive entertainment law practice group.Carsten says it's also in the interests of large media or entertainment corporations to embrace the creativity of the average user rather than attempt to limit individual expression because of perceived copyright infringement."A lot of amateurs have become artists by posting their material on YouTube," says Carsten. "If you are a corporation, you don't want to seem like a big bully. People go with a company rather than against a company if the company shows it has a sense of humour."Bill C-61 was repressive and protectionist than its precursor Bill C-60, according to David Fewer, a copyright lawyer with the Canadian Internet Policy and Public Interest Clinic in Ottawa. He describes Bill C-60 as more supportive of innovation and expanded "fair dealing" rights, which would promote original content creation and mashups. By contrast, Bill C-61 emphasized digital content distribution and would potentially strip users of their fair dealing rights."It's about what you bring to the table (as a creator)," says Fewer. "Fair dealing allows documentary filmmakers, for instance, to comment on other works. We have not yet seen the same thing (fair dealing) in the social media space in Canada."Fewer points to the Center for Social Media at the American University in Washington, DC and its issuing of best practice guidelines to increase media literacy and to provide guidance on the application of fair use, defined as the right to use copyrighted material without permission or payment under some circumstances, for online video. Canada uses the term fair dealing in its Copyright Act, and not fair use, but both refer to using copyrighted material without expressed consent."We need guidelines to make fair dealing a more useful concept," adds Fewer. "There needs to be more efforts in the area of copyright education. We would like to see the Department of Canadian Heritage provide best practice guidance to outline when what we want to do is legal and what is not legal."One example of "fair dealing", says Fewer, was a clip from The Daily Show with Jon Stewart poking fun of the recent malaise in governance in Canada layered with audio of Stephen Harper appealing to the Canadian public about the need to prorogue Parliament."People are acting as citizens and exercising their rights to participate in the dialogue about government," says Fewer, contrasting such a clip with one that would be exploitative in nature, fail to bring new creative value to a work, and be put together mainly for profit.There is still time for the government to find a compromise. With the recent economic downturn in Canada, it's unlikely that a new copyright bill will be the first order of the day in the next session of Parliament. "Everyone has bigger fish to fry right now than turn their attention to copyright," says Fewer.For its part, the Canadian Copyright Board decided in October not to set a tariff for the use of music on sites such as Facebook, My Space, and YouTube. The Society of Composers, Authors, and Music Publishers of Canada did not present evidence relating to the appropriate tariff rate that users should pay. SOCAN is appealing the decision.

Mashed up content on social media sites would be illegal under new copyright law

News | 12/22/2008 3:42 pm EST

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