In a time when online sharing is becoming more and more complicated thanks to an ever increasing number of social media platforms cropping into existence and an equally ever increasing amount of time people are spending online, various copyright issues are bound to arise. Continue reading to learn more about the common Canadian copyright limitations and issues users may face in sharing and living in an online world.
Issues with Using Images/Videos from Social Media
The copyright in a photograph or video is held by the individual who took the photograph or video, unless that individual created the work in the process of their employment or has assigned the copyright to another person. A creator of a copyrighted work has both "economic rights" and "moral rights." A creator's economic rights give them the exclusive rights to reproduce or authorize the reproduction of their work and the exclusive right to communicate their work to the public by telecommunication. A creator's moral rights give them the right to the integrity of their work and the right to be associated with it or remain anonymous, unless they have waived this right.
The significance of these rules is that when an individual creates an image or video, they own the copyright to it and the right to control its use even if they put it on social media. See our blog post on Image Copyright in the Age of Social Media for further information about social media platforms' rights to the images posted by their users and for a more detailed explanation of Canadian copyright in images.
Issues with Using Older Works on Social Media
Obtaining consent to use a new work can sometimes be fairly easy (but not necessarily inexpensive), but when a work is older, one of the main issues with obtaining consent is that it may be hard to ascertain the author or owner of the copyright. Canada has recently committed to extending the term of copyright by the end of this year to the life of the author plus 70 years as part of the implementation of the new trade deal with the United States and Mexico, which means that a work will cease to be protected by copyright at the end of the 70th year following the author's death, even if the author is no longer the owner of the copyright. In the case of a work created by more than one person, copyright protections will continue until 70 years after the death of the last surviving author of the work. The significance of this is that many older works are still protected by copyright and as such, would require consent to be used despite being decades old.
A company that owns the copyright to a work could potentially go out of business long before the copyright expires or there could be no evidence of who the original individual author was. When someone wishes to use a work in which copyright subsists, but the copyright owner cannot be located, they can apply to the Copyright Board of Canada (the Board) for a non-exclusive license. The Board has the right to grant a commercial or non-commercial license as long as it is satisfied that the person or company seeking the license has made reasonable efforts to locate the copyright owner and that the owner cannot be located. Although it should be noted that works that are only available online, such as YouTube videos, cannot be licensed by the Board through this process because the regime only applies to "published" works.
Issues with Using Music on Social Media
Just as with images and videos, recorded music attracts its own copyright protections. If someone wants to use recorded music in social media content, they need to be aware of what rights need to be cleared. In Canada, clearing these rights can often be done by obtaining licensing agreements with the music collectives, whose repertoires include Canadian works as well as works from around the world thanks to their agreements with other countries' music collectives. If someone wanted to publicly perform recorded music, they would need to pay royalties to the collectives SOCAN and to Re:Sound. If they wanted to reproduce recorded music, they would need to pay royalties to CMRRA/SODRAC and would also need the permission of the record label, who is the sound recording maker.
There are four distinct copyright interests in each recording of a song. In order to include a recorded song on social media, the rights to both the song (e.g. the lyrics and music) and the recording of that song need to be cleared. The composer and the publisher control the rights to the song, while the record company controls the right to the recording. In addition, there are two rights that need to be cleared for both the song and the recording: the rights to publicly perform (or stream) the song and the recording over the internet, and the right to reproduce (or make copies of) the song and the recording. Unless all four rights are cleared, there is a risk of infringement.
However, despite all of these rights, there are certain social media companies, such as Tik Tok, that have licensing agreements with popular artists and labels that allow regular users to use the music provided on the platform's library without facing legal action. This permission to use popular songs does not generally extend to verified businesses, which would still have to use either royalty-free music or attempt to clear the rights discussed above before using music on social media.
Social Media and Copyright Exceptions
Fair Dealing is an exception that allows the use of copyrighted materials when particular conditions are met. In Canada, people can use copyrighted materials, including on social media platforms, for the purposes of research, private study, education, parody, satire, criticism, review, and news reporting. As per the Supreme Court of Canada decision in CCH Canadian Ltd. v. Law Society of Upper Canada, the following factors need to be considered in assessing whether a dealing was fair: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.
However, it is important to note that fair dealing is a defence. The significance of fair dealing being a defence is that it only comes into play after an individual has been sued. Fair dealing only really becomes relevant once an infringer is brought before a court where a judge then has to provide the definitive answer as to whether or not the infringer's use of a copyrighted work constituted fair dealing. It can be a difficult defence to prove because it depends on the facts of the case and is determined on a case by case basis. Additionally, an infringer could end up being right in that his or her use constituted fair dealing and still have to pay tens or hundreds of thousands of dollars in legal fees. This is not necessarily a risk that the average social media user would be well equipped to take on.
Another exception under Canadian copyright law is the user-generated content exception at section 29.21 of the Copyright Act. This provision allows a person to use copyright protected works on social media to create new content for non-commercial purposes. It is noteworthy that there are limitations to this exception. Along with having to be non-commercial in nature, the use must also not have a substantial adverse effect, financial or otherwise, on the exploitation of the original existing work. The source of the work (e.g. the name of the author, performer, maker, or broadcaster) must also be mentioned if it is reasonable to do so, and finally, the individual using the work must believe on reasonable grounds that their use does not constitute copyright infringement.
Takeaways
There are many copyright issues that come into play when a social media user is sharing images, videos, or music. Users need to stay vigilant and complete their due diligence by ensuring that what they choose to share online does not infringe on others' copyright.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
