When we last discussed “fan fiction” here at the Signal back in early 2010 (Fan Fiction – Perspectives on Fiction and Its Fans) it was noted that the considerations to be taken into account when discussing fan fiction were a mix of legal, artistic and commercial. But with the proclamation into force on November 7, 2012 of many provisions of the Copyright Modernization Act (Bill C-11), we need to supplement our earlier observations. Post-CMA there is a new legal consideration to address when discussing fan fiction and Canadian copyright law: new Section 29.21 of the Copyright Act, the “non-commercial user-generated content” provision (referred to in this post as the “UGC exception”).
During the debates over Bill C-11 (and its predecessor, Bill C-32), what would become Section 29.21 of the Copyright Act gained a somewhat misleading moniker: it was often referred to as the “YouTube” or “mashup” exception to infringement. While neither term is inaccurate, they both carry the innuendo of being relevant only to digital activities – but the UGC exception is in no way limited to online or digital activities. Fan fiction, described on Wikipedia as “stories about characters or settings written by fans of the original work, rather than by the original creator”, seems to be capable of being sheltered under the provisions of the UGC exception, which permits an individual to use elements of an existing published work to create and disseminate to the public a new work so long as the following criteria are met:
the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;
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
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.
Many observers have noted the potential impact of the UGC exception on the legal analysis of fan fiction, among them Tara Parker (‘Transmedia’ a Copyright Grey Area) and the Writers’ Rights Coalition of Canada (Brief on Bill C-32). (The urtext of Canadian legal analysis of fan fiction, and a must-read for anyone interested in the topic, Grace Westcott’s “Friction Over Fan Fiction“, was written in 2008, before the UGC exception had been incorporated into the predecessors of the CMA.) Among lengthier treatments of the UGC exception and fan fiction, Graham Reynolds’ “Towards a Right to Engage in the Fair Transformative Use of Copyright-Protected Expression” (Chapter 13 of From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda) provides a comprehensive consideration of the matter. Although they do not speak about fan fiction in particular, Daniel Gervais’ “The Tangled Web of UGC: Making Copyright Sense of User-Generated Content” and Len Glickman and Jessica Fingerhut’s “User-generated content: Recent developments in Canada and the U.S.” also provide thoughtful discussions about user-generated content more broadly.
A discussion of the legal implications of fan fiction would not be complete without mentioning two relevant matters which are not affected by the UGC exception introduced by the CMA: moral rights and trade-mark (or passing off) claims. Under Canadian copyright law, authors possess moral rights, one of which is the right of “integrity”, or, as it is articulated in Section 28.2 of the Copyright Act, the right to prevent (or seek recompense for) any distortion, mutilation or other modification of a work which prejudices the author’s honour or reputation. The UGC exception, while creating an exception to copyright infringement, has no effect on an author’s potential moral rights claims. And because fan fiction may make use of elements of an author’s creation such as titles, character and location names to which some form of trade-mark protection applies (e.g., Star Wars fan fiction that makes use of character names like Luke Skywaylker (a registered mark in Canada), Darth Vader (ditto) or world elements like lightsabers, droids or Ewoks (each either currently or previously a registered mark in Canada), there remains the possibility that some form of trade-mark based action could be commenced by the relevant rights-owner.