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.