1. Introduction
The use of copyrighted material is all around us in the modern technological age. A quick scroll on Tiktok (well, using my algorithm at least) reveals a barrage of ‘Tiktokers’ displaying and commentating on a variety of sports highlights or reacting to the latest heartbreak on reality television. So wide spread is the use of copyrighted material on social media that it beggars the question, how much copying is too much? Particularly when a quick google search would lead the casual observer to conclude that ‘generally, you can copy up to 10% of a work…’.[1] Such are the misconceptions around the topic of fair dealing, that it requires a closer examination. This paper in doing so hopes to provide readers, particularly those reproducing copyrighted material, with an understanding of the protective ambit offered by fair dealing and a few practical tips to push oneself into that territory.
2. The Fundamentals Underpinning Fair Dealing
Fair dealing helps to strike a balance between the public interest in the wide dissemination of a work and the generation of a just reward for the author.[2] These policy underpinnings render its application one of ‘practical negotiation between ownership and use’,[3] in circumstances where, there is rarely a clear winner.[4] This paper hopes to offer some respite to content creators given this ambiguity, with the caveat however, that every case will turn on its own unique facts, this paper serves only as a general guide.
3. The Statutory Nuts and Bolts
The Copyright Act (the Act), [5] provide an exhaustive list of purposes for which copyrighted material may be used including research, private study, education, parody, and satire.[6] This also includes ‘criticism or review’,[7] and ‘news reporting’,[8] in circumstances where the source and the name of the relevant author of the work are referenced. In practical terms establishing fair dealing is a two-stage process. First, align yourself within a purpose listed in the Act, and second, establish that the dealing was ‘fair’. [9]
4. The Fair Dealing Checklist
The Court in CCH Canadian et al. v Law Society of Upper Canada,[10]has provided some practical guidance in this area which will be summarized below. This analysis applying specifically to those creators who display copyrighted material, for commentary or reactionary style content be it sports games, television, or film.
A) Acknowledge the source of the copyrighted material
Irrespective of your intention, provide the source of the copyrighted material, and the relevant author of the work. This helps to cover yourself in circumstances where a purpose under s29 of the Act cannot be made out but that of ‘criticism or review’[11] can be so found. The term ‘criticism or review’ is not defined under the Act and given the broad interpretation favoured by the court to other fair dealing terms,[12] and too the nature of the content produced here, there is an argument to be had that such content falls within the ambit of ‘criticism or review’. Take advantage of this by providing some depth of analysis to your content. This can be achieved by a variety of methods, including for example, if reviewing sports highlights, providing audio bites interlacing your own analysis of why a team is failing and what could be done to improve their position.
B) Immediately establish the purpose of the content
Make the purpose of your content clear from the outset and be sure to align yourself within a relevant purpose of the Act.[13] This helps to filter your audience immediately and ensures that those watching the content are under the impression the video is for a prescribed purpose be it parody or satire or criticism or review and not simply tuning in for the copyrighted material itself.
C) Display only what’s strictly necessary
While there is some necessity to displaying the copyrighted material in order to familiarize your audience with what you are referring to, do so sparingly, ensuring not to make the copyrighted material the focus of your work. Be sure to limit the viewing size of copyright material, to that which takes up the smallest part of the frame necessary yet is still informative enough to familiarize your audience. Further, ensure that the length of the copyright material, extends only to that time necessary to convey your point to the audience.
D) Distinguish, distinguish, distinguish
Create a separate market for your content visa vee that of the original copyright owner so as not to compete with their market share.[14] Stick to one purpose and avoid becoming a one stop shop for viewers. This can be achieved by limiting the duration of the work as discussed and avoiding uploading content onto mediums where the work can be readily downloaded.[15]
This ability to create a niche and establish a point of differentiation is particularly crucial, given that the consumer appetite, particularly amongst young people is firmly in favour of short-form content.[16] The kind of which Tiktok and Youtube creators provide. As social media platforms continue to proliferate,[17] this will only continue to place pressure on the market share of copyright owners. Particularly given the success and following generated by content creators in the area, including FreeDawkins, who at the time of writing this paper has amassed 1.47 million subscribers on YouTube by providing timely access to the latest NBA highlights.
5. Conclusion
Many successful content creators have made a name for themselves, relying on copyrighted material, some perhaps blissfully unaware of the legal mechanisms operating to protect their ability to do so. Given the growth of the social media industry and the impediment that such growth is likely to continue having over market share in other areas, content creators cannot afford to be complacent and need to take active steps to protect themselves. While this paper is not a definitive guide on the topic, it should provide creators with a few useful tips to progress their content in the right direction.
*Professor Festinger, I’d like to submit this as my final paper for the course. Thank you.*
Footnotes:
[1] Donald Taylor, ‘Is there a limit to how much I can copy?’ Copyright at SFU (Webpage, 14 October 2022) <https://www.lib.sfu.ca/help/academic-integrity/copyright/fair-dealing-limits#:~:text=Generally%2C%20you%20can%20copy%20up,and%20Teaching%20infographic%20for%20detail>.
[2] CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 at para 23, [2004] 1 SCR 339.
[3] E MacLaren, ‘Copyright and Poetry in Twenty-First Century Canada: Poets’ Incomes and Fair Dealing’ (2017) 233:233 Canadian Literature 10, 11.
[4] Ibid, citing Alberta (Education) v. Canadian Copyright Licencing Agency (Access Copyright), 2012 SCC 37 at para 23, [2012] 2 SCR. 345.
[5] Copyright Act R.S.C., 1985, c. C-42.
[6] Ibid s 29.
[7] Ibid s 29.1.
[8] Ibid s 29.2.
[9] Alberta (Education) v. Canadian Copyright Licencing Agency (Access Copyright), 2012 SCC 37 at para 12, [2012] 2 SCR 345.
[10] 2004 SCC 13, [2004] 1 SCR 339.
[11] Copyright Act R.S.C., 1985, c. C-42 s 29.1.
[12] See generally, Alberta (Education) v Canadian Copyright Licencing Agency (Access Copyright), 2012 SCC 37, [2012] 2 SCR. 345.
[13]See CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 at para 71, [2004] 1 SCR 339.
[14] CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 at para 72, [2004] 1 SCR 339.
[15] See Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36 at para 48, [2012] 2 SCR 326.
[16] Gavin Bridge, ‘The Changing Face of Sports Fandom’ VIP+ (Webpage, 22 March 2021) <https://variety.com/vip/the-changing-face-of-sports-fandom-1234920561/>.
[17] See Mansoor Iqbal, ‘TikTok Revenue and Usage Statistics (2022)’ Business of Apps (Webpage, 11 November 2022) <https://www.businessofapps.com/data/tik-tok-statistics/>.
Communications Law