November 11, 2015 by Mariam Awan
In December 2006, Time magazine celebrated “You” as the person of the year. In the article, Lev Grossman stated that our history is no longer shaped by a few famous men but by all of us who are part of the new Web. He applauded the fact that over the past year:
We made Facebook profiles and Second Life avatars and reviewed books at Amazon and recorded podcasts. We blogged about our candidates losing and wrote songs about getting dumped. We camcordered bomb runs and built open-source software.
This contagious enthusiasm for user-created works has dampened somewhat over time as we have come to understand the repercussions of some of our activities online. Amateur users are increasingly ignoring copyright law in order to create content online. This is extremely problematic from a public policy perspective since a whole generation of users cannot be deemed criminals. Canada has taken a significant step in the right direction by enacting s. 29.21 of the Copyright Act. It is the first country in the world to make user-generated content an exception to copyright infringement. This user-generated content (“UGC”) exception allows a person to use copyright-protected works to create new content for non-commercial purposes. However, one major flaw in the exception is that it conflates amateur creation with non-commercial use. In the current digital sphere, amateur user-generated content is becoming more and more sophisticated and may have many indirect commercial benefits. The distinction between amateur non-commercial use and professional commercial use is quite arbitrary and cannot sustain itself in modern technological practices. This essay will argue that the proper focus of the user-generated content exception should be on the level of originality of the UGC and its effect on the source material as opposed to its non-commercial or amateur nature. In most cases, if the new content has copyright subsist in it, then it will not have an adverse impact on the source material.