Barristers and Solicitors
Patent and Trademark Agents

Youtube Exception is Subject to Conditions

Sometimes referred to as the "mash-up exception", a new exception was introduced into the Canadian Copyright Act in 2012 for user-generated content that is derived from pre-existing works. The classic examples being the home videos of babies dancing to a popular song or a "mash-up" of video and audio clips from multiple sources.

It is often forgotten that such content must satisfy a number of conditions to qualify for the exception:

  • First, the new content must be created for a non-commercial purpose. Although "non-commercial purposes" is not defined, this likely prohibits, for example, selling copies of the new content or earning any advertising income from its publication on Youtube or any other social media platform.
  • Second, the new content must have a sufficient degree of originality to qualify for copyright protection in its own right. In other words, the author of the "mash-up" has to use some of their own skill and judgment to create a new and independent work. For instance, making a music video with computer generated imagery from music visualization software is not likely to qualify for the exception.
  • Third, the exception is only available to natural persons. Youtube and other corporate entities who control social media platforms may benefit indirectly when individuals use those platforms as intermediaries to disseminate such content, but corporations and other legal entities cannot independently exploit the "mash-up" exception.
  • Fourth, the new content cannot have been created with infringing copies of the original works from which it is derived. For instance, the author of such content cannot break a digital lock to make a copy of any original work in the process of creating their "mash-up" and still qualify for the exception. There is no exception in the Copyright Act that authorizes the breaking of digital locks to make copies for any purpose.
  • Fifth, the new content cannot serve as a substitute for any of the works from which it is derived or otherwise have a "substantial adverse effect" on the exploitation of those works. Such "adverse effects" are expressly not limited to the financial exploitation of the original works, but the scope of this condition is otherwise undefined.
  • Finally, the original sources from which the new content has been derived should be identified in any publication where "reasonable" to do so.

In Canada, copyright is a purely statutory right and there are no exceptions outside the Copyright Act. It is therefore important to remember the conditions attached to any exception on which you rely to avoid allegations of copyright infringement.