Posting
Videos on YouTube – Copyright Infringement or Not?
The
“Mash-Up” Provision
Have you ever watched a YouTube video where the creator of
the video used a popular song as the background music? Have you ever wondered
whether the creator got permission from the artist of the song to use the song
in the YouTube video? Have you ever wondered what would happen if the song
artist decided to sue that video creator for “stealing” his/her song without
permission?
You may have come to the logical conclusion that it is not
worth it for pop stars like Justin Bieber and Miley Cyrus to crack down on that
artistic YouTube video creator who decided to use “Baby” and “Wrecking Ball” in
his video, and you are probably right. However, from a legal perspective, even
if those artists wanted to crack down on the video creator, the video creator
would have many defences available to him against these superstars.
Generally speaking, you cannot use a substantial portion of copyrighted
work in your own work without the permission of the owner of the copyrighted
work. However, copyright law is full of exceptions, one of which being the
exception of non-commercial user-generated content. This exception is
enumerated in section 29.21 of the Copyright
Act, RSC 1985, c. C-42 (a new piece of legislation that was introduced into
the Copyright Act in 2012) – this
provision is sometimes referred to as the “mash-up” provision. This provision
states that it is not an infringement of copyright to use even a substantial
amount of a copyrighted work in your own new work provided that:
- The copyrighted work has already been published (ie. made available to the public);
- Your new work was created
for non-commercial purposes;
- The source of the copyrighted
work is mentioned in the new work if it is reasonable in the circumstances
to do so;
- The creator of the new
work had no reason to believe that the copyrighted work was itself an
infringement on another party’s copyright; and
- The use of, and dissemination
of, the new work does not have a substantial adverse effect on the
copyrighted work.
If the above conditions are met, the YouTube video creator
would not have to worry about million dollar lawsuits from Hollywood pop stars.
However, if the video were to become YouTube famous and the video creator
started raking in royalties as a result, he might want to consider giving
Justin Bieber’s and Miley Cyrus’ agent a call to see if he can get a license
from them.
For more information, please contact the law office of
Courtney Aarbo Fuldauer LLP at:
Address: 3rd Floor, 1131 Kensington Road NW, Calgary,
AB, T2N 3P4
Phone: (403) 571-5120
Email: info@courtneyaarbo.ca
Canadian Intellectual Property Office:
http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/Home
http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/Home
*The information contained in
this blog is not legal advice. It should not be construed as legal advice and
should not be relied upon as such. If you require legal assistance, please
contact a lawyer*
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