The Fair Use Doctrine in the Age of the Digital Creator

  • 29 mars 2021
  • Simon Kuan

The digital age has fostered a new generation of content creatives, many of which blend media consumption with media creation to create works that are placed online for others to consume and subsequently produce. This new generation of creatives pose an issue to the current state of copyright law.  In its most basic understanding, copyright law seeks to protect the ownership rights of the copyright holder, however beyond that, copyright law also aims to balance that ownership right with a duty to promote future creators to continue making new innovations. One of copyright law’s main tools to achieve this balance is the fair dealing principle used in Canada and the fair use principle used in the United States. In essence, both fair dealing and fair use attempt to accomplish similar goals; to regulate creative monopolies and allow the public to use certain works without permission.  For simplification purposes, the concept of regulating these creative monopolies to extend the public’s use of them will be referred to simply as “fair use” in this article.  

Fair use before the digital age was perceived to fulfill copyright’s purpose to promote the progress of science and the useful arts, and it remained a very flexible doctrine that gave the courts a high level of discretion on whether it applied.  However, as time passed and technology advanced, situations were created where judicial decision-making contravened traditional fair use and its principles. This article will analyze technological innovations that have created new problems in our copyright system and advocate for the modernization of the fair use principle to accommodate a new generation of creatives.

YouTube and other media sharing platforms

Media sharing platforms built for the purpose of sharing and consuming media have been one of the most disrupting factors to the current state of fair use. One of the most popular media sharing platforms, YouTube, features content such as video logs, reviews, skits and animations, with much of that content being generated by individual users on the platform that incorporate both original and previously copyrighted material into their uploads. 

YouTube themselves, have been able to avoid liability for the uploads of their users because of the American Digital Millennium Copyright Act (DMCA). A key characteristic of this act is the safe harbour rule that provides that online service providers would not be liable for storing or transmitting infringing material only if the company does not know or should not have reasonably known about the infringement, and once they learn of it, they are required to act expeditiously to take it down. The users on the platform however, are not eligible for such protection.