BY MICHAEL GEIST
In February 2007, Stephanie Lenz, a California mother of a pair of young toddlers, shot a short video of her children dancing in the family kitchen with the Prince song “Let’s Go Crazy” playing in the background. Lenz proceeded to upload the 29 second video to YouTube so that friends and family could see it.
Thousands of hours of user-generated video are posted online every day and there was nothing particularly remarkable about the dancing baby video. What set it apart, however, was that several months later Universal Music Group, Prince’s music label, sent a takedown notice to YouTube claiming that it infringed its copyright.
My weekly technology law column (Toronto Star version, homepage version) notes that similar takedown notices are sent to Internet intermediaries such as Google every hour. Yet this particular takedown demand seemed so at odds with the law (few experts believe it infringes copyright) that it sparked an eight year court battle in the United States and served as the inspiration for a 2012 Canadian copyright reform that protects users and websites that create and host non-commercial user-generated content.
The Prince song can be heard for 20 seconds of the 29 second video. From the perspective of Prince and Universal Music Group, that was enough to trigger their rights to demand that the video be removed from the Internet.
That perspective will be familiar to those that view copyright rights as absolute: any use, no matter how small or insignificant, may result in an infringement claim, an exercise of the right to demand the removal of content, or a request for payment. It is why most books still feature an “all rights reserved” warning, why broadcasters have argued that they have right to stop political commercials that feature excerpts from their broadcasts, or why some artists have tried to stop others from remixing their work.
But it is also an inaccurate view of the law since copyright does not provide absolute protection. Instead, the rights of copyright holders are balanced against the rights of users, who are entitled by law to use a portion of copyright works without the need for permission or further payment.
In the U.S., these user rights are called fair use. Soon after the Prince and Universal Music Group takedown demand, Lenz filed a lawsuit arguing that copyright owners must consider fair use before sending such demands. Last week, the 9th Circuit Court of Appeals agreed, ruling that fair use is more than just a defence and that failure to account for it before sending a takedown notice could lead to a finding of bad faith by the copyright owner.
The user rights of Canadians are already well-protected. The Canadian Supreme Court has ruled that the Canadian version of fair use – known as fair dealing – is a “user’s right” that should be interpreted in a broad and liberal manner. In other words, the need to balance creator rights and user rights is an integral part of Canadian law.
Moreover, Canada does not have a takedown system similar to the one found in the U.S. Instead, the government created a notice-and-notice system that does not require the removal of online content, but provides rights holders with the power to educate users about their rights.
Canadian law also features special safeguards for non-commercial user-generated content such as the Lenz dancing baby video. The Canadian rule legalizes user-generated content (provided that several conditions are met), thereby enabling remix videos, mashup songs, casebooks with multiple contributors, and the myriad of other content enabled by digital technologies. In fact, several other countries have begun to debate whether to emulate the Canadian model with a similar statutory protection.
Lenz wasn’t thinking about copyright, user rights, or user-generated non-commercial content when she created the video of her dancing toddler and posted it to YouTube. Years later, her video has been viewed over one million times and has played a pivotal role in ensuring that others can post similar videos without fear of having them taken off the Internet.