To be able to understand what your rights are, you first have to understand what the owner of the works rights are first.
- I’m Canadian,
- the States does not prioritize user rights v. company rights like Canada or France.
Let me begin with how the owner gets his work copyrighted. He makes it.
It truly is as simple as that. The problem with that is the owner will have to prove the work is theirs if someone scoops up the work, re-posts it or even tries to claim it is theirs. The best way for an owner to not have to go through the trouble of court is to register with the copyright office which basically records that individual as being the sole owner of said work.
In order to be able to copy a work it has to pass two “broad tests.” In the first, it is a test of purpose. There are actually a lot of ways in which the exception applies:
- private study,
- news reporting.
The second test is in its fairness, which is to say “are you using the work which is fair to the owner rather than abusive”:
- goal of the dealing,
- character of the dealing,
- amount of the dealing,
- nature of the work,
- available alternatives to the dealing,
- effect of the dealing on the work.
This sounds like a lot of things to consider but it in my opinion is required to prevent mass theft of works.
So first lets talk about the first test, the purpose.
Usually this test is mainly for education and media reporting, but it can even apply to the average citizen. Let say you’re an up an coming journalist and you require the use of copyrighted material like a university research paper to create a news segment. That would fall under the categories of research, education, criticism (assuming your critiquing) and news reporting. The reason it falls under these categories is because:
- The universities research paper is required to make sure your reporting is accurate, you are in a sense (although some may not see it this way) educating the public about certain research,
- critique and news reporting because you are using the paper in a way that is both a form of critique and reporting rather than for personal gain.
This does sound and look strange to those who are literally just learning the about copyright law but trust me when I say once you start applying this to your daily life, understanding becomes second nature.
Next, the second test, fairness.
In case CCH v. Law Society (2004), the Supreme Court of Canada identified these six factors when determining if the work is being dealt with fairly. Lets use the same scenario from the first test. In this case the character of the dealing is rendered null because it is a research paper. The things most relevant would be the goal, amount and available alternatives and the effect of the dealing.
- So what is the goal? If the goal was to take the research for personal use it would automatically be considered in breach of fair dealing but since the research was used to educate the public in a news report it passes.
- The amount? How much did the reporter use? This one can be a little tricky since there really isn’t a quantitative measure of how much of the work can be used. Lets just say if the reporter used the entire piece in their reporting (not likely) then it would not be allowed under fair dealing.
- When it comes to research material, available alternatives usually aren’t all that common since it generally is unique.
Something to remember is that each case is different and each case will have the weight of each test weighed differently against it. So do not assume because someone was in a similar situation as you that the outcome will be the same.
Now as a general rule we’re taught to never plagiarize. The truth of the matter is in most cases you can take a few lines from a poem and be found innocent of copyright infringement since the central idea can’t be explained in a few words. We can also look at big label companies and how they routinely have their lawyers send take down orders to people who have allegedly infringed copyrights.
Let’s look at the popular and talented group from France, L.E.J as an example. Although they do have their original works they also do mash ups of songs every summer. In this case we’re going to look at Summer 2016. In this video they clearly have taken a few lines from multiple songs and added their own expressive works to it in the form of music, vocals, scenery, etc. Under the rules of fair dealing or even fair use (they are similar but have differences by the way) the method of presenting their video was done under lawful term and did not infringe upon any rights.
“Why then has the video been issued a take down order?”
The simple answer is the lawyers that I mentioned before issuing a take down order through loop holes in the U.S. copyright laws regardless of the fact that it violated not copyright laws. This is a blatant case of infringing upon user rights which we’ll get into in the next article. In Canada our fair dealing is explicit, in that it is specific, in the States, not so much. Universal Media Group (UMG) the group responsible for the take down issued the order under the copyright laws of the States rather than under the copyright laws of France where the laws are different.
This isn’t to say that owners everywhere are malicious. Rather it protects the owners from anyone taking their work and using it for their own malicious gains. Also, the case I mentioned above isn’t isolated to just the music industry, it is also prevalent within the gaming, video production industry and especially with independent video creators.
Copyright Act R.S.C., 1985, c. C-42 (Government of Canada)
France Code de la propriété intellectuelle (version consolidée au 9 octobre 2016)
CCH v. Law Society (2004): Judgments of the Supreme Court of Canada
L.E.J.: Youtube Channel
2015 DMCA Exemption for Filmmakers: Documentary.org