Ken Anderson is a first year JD candidate at Osgoode Hall Law School and currently enrolled in the course Law & Social Change: Law & Music, in Winter 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice.

As I watched the 53rd Annual Grammy Awards, I couldn’t help but reflect on how the so-called “mash-up” provision in Bill C-32 might apply to some of the nominees.

Among the more contentious changes introduced in the Bill, the mash-up provision (s. 29.21) would allow users to creatively modify and fuse copyrighted musical works, provided it is not for commercial use. This year’s Grammys provided at least two insights into this controversial provision.

In particular, one of the performances nominated for Best Pop Performance by a Duo or Group caught my attention: the cast of Glee’s rendition of Journey’s “Don’t Stop Believing.” The show, premised on good-looking and talented high schoolers performing and mashing-up a range of popular music, is embedded with copyright issues which have been rightly called the “elephant in the room.” Glee has so far avoided being sued by carefully licensing all of the music in the show. However, not all musicians have been willing to license their music to Glee; Guns N’ Roses and Kings of Leon are just two artists who have refused to have their songs appear in the show.

SOCAN and ACTRA have argued on behalf of their artists that the mash-up provision has the potential to seriously impact moral rights. They claim that mash-ups by definition distort, mutilate and modify original musical works, which are the explicit grounds for moral right infringement (s. 28.2). The fact that artists will refuse to license their music for mash-ups even in the face of assured publicity and probable commercial benefit drives home the fact that moral rights are important to artists, and that they perceive mash-ups as violating those rights.

Much of the debate around the mash-up provision has focussed on the third parties who will stand to benefit from user-generated mash-up content. A large group of Canadian collectives are united against online publishers (e.g. Youtube) earning advertising revenue from mash-ups posted by users. The provision also risks redundancy because mash-ups conceivably fall under either of the proposed fair dealing defences of parody or satire (s. 29). For example, American courts define parody as a legitimate fair use defence only when a subsequent work criticizes the existing copyrighted work upon which it is based. However, satire on the other hand is not a fair use defence in America because the author uses a copyrighted work to provide general social commentary.  Since Bill C-32 includes both, if Canadian courts give them similar definitions then mash-ups are likely already protected, rendering the provision superfluous.

Despite criticisms, the Grammys illustrated that mash-ups are here to stay, and are becoming more mainstream than ever. Before the evening concluded, the international online community had already begun mashing up the performances from the night. Justin Bieber fans and Arcade Fire antagonists used user-generated content to express their outrage over perceived injustices, and they did so on websites like Youtube. The lesson from the night is that user-generated content, of which mash-ups are part, is not diminishing – it is proliferating. Millions of people are both creating and consuming it.

For Bill C-32, this means avoiding obsolescence beyond merely the spectre of failing to craft technologically neutral legislation. The mash-up provision represents a unique recognition by Canadian legislators that creative mash-ups are common. Rather than encouraging the creation of new mash-ups, the provisions drafters have recognized that they are legitimizing Canadians’ everyday activities.

The potential for moral right infringement of the mash-up provision is a significant issue that warrants addressing, but government acknowledgement that mash-ups are both commonplace and unlikely (if not undesirably) to be prevented ought to be encouraged. Although this year’s Grammy experience was less creative than it was defamatory, it is a safe prediction that user-generated content will be back at next year’s show in spades.

Posted in Law & Music Course Topic, Music Industry