Kill Bill C-11 Volume 3.14159…: Make me a mash-up, Mister!

Start Trek:TNG clips + Patrick Stewart’s gay role from Jeffrey = comedy gold. Well, to us geeky types anyway. But is it legal? Under Bill C-11, yes! Well, sort of. As usual, these things are complicated. Join me after the jump for part 3 of my Bill C-11 series to see what you have to do if you want to create and post on YouTube that “Rebecca Black’s Friday Night Lights” video you’ve always dreamed of.

So yesterday a bunch of Canadian actors went to Ottawa to discuss creative things. The Alliance of Canadian Cinema, Television and Radio Arts (ACTRA) President, Ferne Downey, is none too pleased about some of what’s in Bill C-11, which allows for mash-ups under the so-called “YouTube exception”. Another actor, Leah Pinsent, said that mash-ups are “morally wrong” and constitute a form of plagiarism. Good thing we at AM.com don’t have morals.

So what is this YouTube exception that’s in Bill C-11? Well, first of all, the Bill doesn’t mention “mash-ups”, because that would be too simple. Instead, they call it “non-commercial user-generated content”. Wrap your brain around this, if you dare:

29.21 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

Pretty clear I’m sure. The key phrase in there is “the creation of new work”. The rest is just gobbledegook. Anyway, what this means is that you can take copyrighted work and make something new out of it, without violating copyright. No permission required! That’s pretty cool.

Of course, nothing in the law comes without conditions. Sure, you can make your mash-up, but there are four conditions you must respect. The first one is that the work must be non-commercial. Does that mean if you make money off of ads on the YouTube page you’re screwed? Probably! So give those five cents back.

The next two conditions are kind of boring. You have to give credit to the copyright owner of the original material. Reasonable. The next one is that the work you are taking to make your mash-up must not have infringed on someone else’s copyright. Good luck making sure of that.

The last one goes back to the non-commercial part of it. It says that (and I’m paraphrasing here) if you take food out of the original copyright owner’s mouth, no go. So if someone didn’t buy that complete box set of Start Trek:TNG for $338 because you watched the little mash-up instead, well, it’s a lawsuit for the mash-up creators.

That’s pretty much all there is to the mash-up exception. This is actually pretty excellent for you creative types, and it is something unheard of in any country anywhere (though mash-ups may be “fair use” and thus not a copyright violation under some country’s laws).

You may have heard about TPMs, or digital locks, and the fact that if you break a digital lock under C-11, you’re screwed. All kinds of people have written the digital locks provision trumps all the other user rights in C-11. While that’s pretty true as a general rule, you will not be screwed if you break a TPM to make your mash-up. Repeat, NOT. All the other user rights (time shifting, format shifting, making backup copies) specifically have the condition you cannot break a digital lock to do so. I just listed all the conditions for mash-ups, and breaking TPMs wasn’t mentioned, was it? If you don’t believe me, other lawyers have said the same thing.

But getting back to something I wrote up top, is a mash-up “morally wrong” as Ms. Pinsent suggested? Well, it may be. Copyright protects two things – the rights of the copyright holder to benefit from and exploit their work, and the moral rights of that work, a term actually used in the Copyright Act. The moral rights are essentially the right to the “integrity of the work”. Have we violated the integrity of Gene Roddenberry’s vision with our little mash-up?

To drive the point home, let’s close this out with a music mash-up, Nirvana crossed with the Smashing Pumpkins. What would Kurt have said about the integrity of his song? I don’t know, but I bet Courtney Love is pissed.