Non-commercial derivatives in Canada

drm
canada
Tags: #<Tag:0x00007f622a633c18> #<Tag:0x00007f622a633a38>

#1

Copyright Act of Canada, section 29.21:

(1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if

(a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;

(b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;

© the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and

(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.

From my reading, this essentially puts all works under NC-Sampling. That is, any derivative work may be made and distributed so long as it is exclusively used for noncommercial purposes. Of course, technical protection measures trump this (and all other) right.

While NC provisions are problematic (if I make a remix video and put it on YouTube – is that commercial because my distributor is commercial? Am I in trouble for that or is the distributor?) this seems like an overall win for “taking back our myths” since derivative art can at least be produced without fear.

This underscores for me why the most important policy move for commons production (I think) is getting the TPMs to stop trumping the rights we already have! Commons production includes non-commercial commons production under exceptions such as the above (I think) and as such making it clearer when fair dealing and other exceptions apply and getting the TPMs out are important activities.


#2

Michael Geist has written about this new (2012) this calling it a “non-commercial user generated content provision”.

CC Sampling licenses were confusing, eg “NC-Sampling” does not exist, but I suppose you’re right that the provision is similar to what NC-Sampling logically would be if it existed: do not allow distribution of original work, but do allow adaptations and distribution of those, though without the Sampling transformative use condition, and with a condition to not have a substantial adverse effect on exploitation of the original.

Though of course I’d rather 29.21 exist than not, same as with just about any liberalization, I don’t think it helps commons-based production. Non-commercial-only adaptations have a market function much like unauthorized sharing/piracy – gratis marketing for and furthering the cultural relevance of proprietary materials, i.e., in competition with the emergence of culturally relevant material fully in the commons.

I also disagree on the priority (and indeed how to) stop TPMs/DRM: I say growing the freedom respecting economy comes first.

I’d love to be convinced otherwise.


#3

Hmm, you make some good points. I’m a bit concerned that we can go to far in fearing helping the proprietary media with “free advertising”, etc. Derivative works can grow into works and relevance in their own right. For example, should we say adapting fairy tales is not a productive commons-building activity because proprietary institutions have built on the same, and we might just be “advertising” for those proprietary adaptations?

On the other hand, maybe that’s true. I certainly do want to see a rise of characters born free


#4

Derivative works can grow into works and relevance in their own right.

They can, but permanently NC-encumbered derivatives of proprietary works seem doubly suboptimal: (1) NC constrains how they can be made relevant, and (2) any relevance they gain also promotes the proprietary work. Compare with:

should we say adapting fairy tales is not a productive commons-building activity because proprietary institutions have built on the same, and we might just be “advertising” for those proprietary adaptations?

I don’t say that because (1) above does not hold at all and (2) seems much more even. But an extreme position that one should never build on anything non-copyleft because one is potentially enabling and promoting future proprietary derivatives seems like a theoretically reasonable position to me, just not practical.

a rise of characters born free

For me, this is the key.