Początek marszu by Piotr Drabik (CC BY 2.0) https://flic.kr/p/ocTafz

Początek marszu by Piotr Drabik (CC BY 2.0) https://flic.kr/p/ocTafz


Canada’s Non-Commercial Copyright Fail: Why Did YouTube Mute a Holocaust Memorial Video?

Holocaust Remembrance Day (Yom HaShoah) starts tonight with events planned around the world. Last year, my daughter Jordan participated in the March of the Living, an annual event that brings thousands of people from around the world to the concentration camps in Poland. The experience had a profound effect and since her return she has become increasingly active within the March of the Living organization including joining the Ottawa board of directors. As part of tonight’s Holocaust remembrance event in Ottawa, she was asked to create a video to commemorate last year’s trip including interviews with participants, pictures, and video. She spent hours interviewing 18 participants on their experience and worked through hundreds of photos and hours of video to create a five-minute snapshot.

Last week, she posted the video to YouTube in anticipation of tonight’s event. Within hours, she received a message from the event organizer’s wondering why so few interviews appeared on the video. When she looked into the issue, she found that YouTube had muted the audio track with interviews after a couple of minutes (at 2:14 to be precise). The reason? The video includes some copyrighted background music. YouTube’s approach when it matches audio to a copyrighted work is to mute the non-music track, though it provides an option to fill out a fair dealing/fair use claim. Jordan did that, pointing out that Section 29.21 of the Canadian Copyright Act provides specific protection for non-commercial user generated content.  The provision states:

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.

As of this morning, YouTube had not reinserted the audio track and Jordan spent many more hours creating a new version with different music.

The March of the Living video is precisely the kind of work that this provision is designed to cover: a non-commercial work with no substantial adverse effect on the work incorporated into the user-generated content. Yet more than two years after the provision took effect, YouTube and other online video providers have not adjusted their services to account for the Canadian law. In fact, a review of online video and social media sites finds that no one seems to account for the law within their terms and conditions or stated copyright policy.

During the copyright reform process, the non-commercial user generated content provision was cited as an innovative, “made-in-Canada” rule that provides legal protection for new creative works and the websites that host them.  During committee hearings, Google said:

Bill C-11’s protections for non-commercial, user-generated content will be important to creative communities in Canada. They allow creators to continue to confidently share their creations online with the world, and help foster the next generation of commercial successes.

Government MPs lauded the provision:

This exception recognizes that these new uses of creative content contribute to Canada’s cultural sector. For example, these uses can enhance interest in the original when videos of user-generated content go viral on the Internet. This innovative form of creation can also shed light on emerging talent from across our country and showcase it to the rest of the world. Of course the digital age does not just offer opportunities for creation; it also offers many unique opportunities for learning and education.

The decision by online video providers and social media sites to largely ignore the provision means lawful Canadian works will be muted or taken down contrary to the policy established by the government. There is no reason that online video providers can’t incorporate Canadian law into their service for their Canadian users by asking for affirmation that the work conforms to the provision upon posting (thereby creating a default that the work is lawful) or by creating a response mechanism that is consistent with user rights protections contained in Canadian copyright law.


  1. My family and I were watching the memorial to the halocaust on TV last night and the audio was missing. That’s all the broadcast would say on the screen is that the audio was missing. Who stole the audio?

  2. There was no audio in the broadcast because the audio tracks were lost when the film went into storage or were somehow destroyed just after the war.

    It was commented on when the show started

  3. This type of thing has been happening for a year at least. Google does what the copyright holder asks them to do and intentionally stays out of the fray. If my experience is anything to go by, the response by Jordan will simply be sent to the rights holder for the music and then the rights holder will decide if they wish to change their minds. It renders provisions like s. 29.21 rather meaningless when uploading to large commercial sites like YouTube.

  4. So let me get this straight. YouTube is not following the law, and is showing no intention of doing so? Interesting.

    • Devil's Advocate says:

      Of course, that would depend on WHOSE law they’re supposed to be following. (Google/YouTube is not a Canadian company.)

      • I guess you missed the sarcasm? Everyone is supposed to follow the US laws, and Canadians usually do, so I don’t see any reason why we shouldn’t show the same arrogance and assume that the US will naturally follow Canadain laws.

  5. On a slightly different note. I tried several times to post the above comment when it occurred to me that the reason it just dumped me and my comment was because I was using a VPN. So I stopped the tunnel and tried again. Bingo. My comment posted right away, just like it has been doing for years.

    It would seem that this blog practices a form of censorship which discourages contemporary privacy practices, such as the use of a VPN. I’m sure it’s unintentional. @michaelgeist, is there some way that could get fixed?

  6. While I find it incredibly disappointing that YouTube doesn’t recognize Canadian copyright law, it is important to note that YouTube is not a Canadian company, and they distribute their online video to the world. That includes American’s.

    So give the fact that they are not only located in this jurisdiction, but also that being an online service, they also distribute to the US, I do not see how they possibly could recognize Canada’s copyright exceptions.

    Don’t get me wrong, it would sure be nice if they could, this is where the rubber meets the road, you start getting into legal grey areas when you’re an American company dealing with the laws in other jurisdictions, especially when the law of your native land prohibits something that the law on the foreign land does not.

    So as much as this frustrates me, I can understand why YouTube has made such decision to not unblock the audio. They simply cannot study the law of every jurisdiction everywhere and ignore takedowns and restrictions put onto them by copyright owners/laws in their native country when it could be potentially illegal for them to do so.

    This is all the more reason why remix provisions need to be added to US copyright law as people like Lawrence Lessig has lobbied for. In the mean time, give that the US has not followed Canada in that regard (instead, they’re trying to make things worse for everyone with the TPP), Canadian’s need to rely on Canadian owned hosting providers to distribute their legally remixed content, or upload it to another video sharing website that doesn’t do what YouTube does; hope for the best. At least Canadian’s cannot be sued for anything if the video does get taken down.

    • Although Google and Facebook are American companies, they provide services to Canadians. The grey area has always been the fact that working online is border less, however, I seem to recall Facebook getting into trouble when they failed to implement new privacy laws in Canada for Canadians. I don’t see why this copyright law should be any different. Simple rules, want to operate in Canada and offer premium accounts to Canadians? Follow our laws.

    • If you’ll note, Google didn’t deny her claim. They just didn’t get around to it.

      Now you can definitely argue that the Google’s default position of “guilty” is the wrong one, especially when it takes them apparently over a week even to respond to a challenge, but until they outright state that they refuse to correct their error, its pretty hard to make any claims on it.

      Sure they’re technically not following Canadian law, but when they’re getting millions of videos a day posted, its also fairly impractical for every video to be reviewed by someone well-versed in copyright law.

      These things are all done by automated systems and its a fact of the world that our automated systems just aren’t smart enough (yet?) to determine if a use is fair or not — we’re only a couple years into being able to automatically determine with any confidence that it IS a use in the first place — and I have very little doubt that the guilty assumption is the one that leads to the least false positives, even if its morally a questionable choice.

      The only thing you can really fault Youtube for here, given the size of their data set, the limitations of current technology, and the overwhelming political and economic might of the media companies, is the fact that it takes them so damned long to respond to claims (which is not a new complaint about them by any means, including in their home country where you’d think they’d be more apt to get on with their legal responsibilities.)

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