Have you ever watched a YouTube video where the creator of the
video used a popular song as the background music? Have you ever
wondered whether the creator got permission from the artist of the
song to use the song in the YouTube video? Have you ever wondered
what would happen if the song artist decided to sue that video
creator for "stealing" his/her song without
You may have come to the logical conclusion that it is not worth
it for pop stars like Justin Bieber and Miley Cyrus to crack down
on that artistic YouTube video creator who decided to use
"Baby" and "Wrecking Ball" in his video, and
you are probably right. However, from a legal perspective, even if
those artists wanted to crack down on the video creator, the video
creator would have many defences available to him against these
Generally speaking, you cannot use a substantial portion of
copyrighted work in your own work without the permission of the
owner of the copyrighted work. However, copyright law is full of
exceptions, one of which being the exception of non-commercial
user-generated content. This exception is enumerated in section
29.21 of the Copyright Act, RSC 1985, c. C-42 (a new piece
of legislation that was introduced into the Copyright Act
in 2012) – this provision is sometimes referred to as the
"mash-up" provision. This provision states that it is not
an infringement of copyright to use even a substantial amount of a
copyrighted work in your own new work provided that:
The copyrighted work has already been published (ie. made
available to the public);
Your new work was created for non-commercial purposes;
The source of the copyrighted work is mentioned in the new work
if it is reasonable in the circumstances to do so;
The creator of the new work had no reason to believe that the
copyrighted work was itself an infringement on another party's
The use of, and dissemination of, the new work does not have a
substantial adverse effect on the copyrighted work.
If the above conditions are met, the YouTube video creator would
not have to worry about million dollar lawsuits from Hollywood pop
stars. However, if the video were to become YouTube famous and the
video creator started raking in royalties as a result, he might
want to consider giving Justin Bieber's and Miley Cyrus'
agent a call to see if he can get a license from them.
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.
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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