A few months ago, my colleague Jay Kerr-Wilson published this blog post on the intellectual property issues surrounding the phenomenon of “Let’s Play” videos, a genre of online videos where an individual records and broadcasts themselves playing a video game. The individual might film themselves or just provide audio commentary, but in either scenario their own content is layered on top of the game that they are playing. The blog post discusses how this video genre could be considered copyright infringement with respect to the video game being played, as well as why generally we are not seeing infringement cases in this area because of the symbiotic relationship between content creators and video game publishers.
As an avid consumer of YouTube and Twitch content myself, I enjoy a variety of different video genres—Let’s Play videos included. In fact, there is one particular video genre that I find myself consistently exploring: “reaction” videos. In Part I of this blog post, I’ll discuss about what reaction videos are, why they’re relevant with respect to copyright infringement, and how an exception under the Copyright Act might apply to them. In Part II of this blog post, I’ll explore the Copyright Act exception at a deeper level, and will compare and contrast Canadian law in this area with U.S. law in this area.
What are Reaction Videos?
The premise of reaction videos is simple: similarly to “Let’s Play” videos, reaction videos feature the content creator reacting to or providing commentary on another video from their own point of view. Sometimes this involves just poking fun at that other video. Interestingly, it is often the case that the video to which the content creator is reacting has been created by another content creator.
There are some differences between Let’s Play videos and reaction videos. For example, Let’s Play videos often feature a playthrough of an entire game, whereas reaction videos may only reproduce excerpts of the video to which the content creator is reacting. That being said, that may not be the case for Twitch streamers who are livestreaming their reactions to videos, as livestreamed videos cannot be edited in advance in the same manner that YouTube videos can. Therefore, unless a Twitch streamer is pausing and skipping parts of the video, they are likely reproducing most or all of the video on their own stream.
Just like with Let’s Play videos, reaction videos are also at risk of being reproductions and public performances that infringe upon one’s copyright. In this case, the original “work” is not a video game but rather a video. Yet, similarly to how depicting a video game is essential to a Let’s Play video, reproducing the original video for a reaction video is also essential as the audience needs to understand what exactly is causing the content creator to react.
Naturally, a significant difference between Let’s Play videos and reaction videos is that in the latter the original work is often created by a much smaller entity (as prominent content creators mostly aren’t large corporate entities). This may be a reason as to why in Canada we have yet to see an infringement claim in court for a reaction video, as smaller content creators may lack the resources to litigate such a claim. There are other factors: YouTube and Twitch provide their own tools for individuals to file copyright claims (and these tools have been the subject of scrutiny for their dubious application of the law), which is why such claims may not have found their way to a court. In addition, it is arguable that a reaction video that garners significant viewership might inevitably bring viewership to the original video thereby increasing revenue from the video. By the same token, if the reaction video is mocking the original video, then that may also drive viewership away thereby reducing revenue from the video.
The Fair Dealing Exception for Criticism or Review
As Jay points out in his original blog post, the Canadian Copyright Act contains exceptions that provide that uses of copyright-protected works for certain purposes are non-infringing. These exceptions are called “fair dealings”. One such exception is the “user-generated content exception” found in Section 29.21 of the Copyright Act, where it is not an infringement of copyright for an individual to use an existing work in the creation of a reproduction of that work and for that individual to authorize an intermediary (e.g. YouTube or Twitch) to disseminate it if that individual does so for a “non-commercial” purpose. Of course, the reality is that virtually all successful content creators profit off of their videos, including reaction videos. And make no mistake, reaction videos and streams have become popular, often amassing hundreds of thousands to millions of views.
That being said, there is another possible exception that could shield reaction videos from copyright infringement claims under the Copyright Act. The Copyright Act carves out certain types of reproductions of works as fair dealings, and section 29.1 of the Copyright Act provides that a reproduction for the purpose of “criticism” or “review” does not infringe copyright as long as the reproduction mentions the source and the name of the author, performer, maker or broadcaster (depending on the nature of the work). The requirement to cite the source of the original work would not seem to be an obstacle that would prevent reaction videos from falling under this exception, as it is often the case that the content creator provides this information to help their audience better understand their reaction.
Although the reaction video genre has yet to be the subject of a Canadian court case, it would seem fair to place it under the “criticism” or “review” exception. None of the other fair dealing exceptions seem to precisely capture the spirit of a reaction video. Those exceptions include for the purpose of research, private study, education, parody, satire or news reporting. While certain types of reaction videos may have elements of these other exceptions, the nature of these videos as responses would seem to more properly situate them as criticism or review. In addition, reaction videos are almost inherently critical; often the content creator is evaluating the video to which they are reacting from a quality perspective.
In Part II, we will take a deeper look at fair dealing under Canadian law, as well as compare it with the meaning of “fair use” under U.S. law. We will also take a look at a relevant U.S. copyright infringement case involving a reaction video and some internet-famous YouTubers.
The critic does a great service to the public, who writes down any vapid or useless publication such as ought never to have appeared. He checks the dissemination of bad taste, and prevents people from wasting both their time and money upon trash.
— Lord Ellenborough in Carr v. Hood (1808), 1 Camp. 355 (Eng. K.B.) at 358
Although Lord Ellenborough is perhaps a little harsh, it is clear that criticism in itself adds value to society. A few centuries later, it is now possible for anyone to be a prominent critic right from the comfort of their own home, and perhaps the reproduction that criticism necessitates is important for facilitating a dialogue and discussion about what makes a work entertaining, comedic, poignant or otherwise. Perhaps such reproduction is even unpreventable when considering the way technology and societal attitudes towards media consumption and copyright have changed.
Of course, it is still important to ensure that protections are in place for copyright holders, especially when considering that smaller content creators who make videos often don’t have the resources to fight costly legal battles just to protect their own rights. This is why courts have an aversion to a complete reproduction of a work, but are more receptive when the reproduction only consists of parts of the work. Copyright issues like these often involve numerous competing rights and interests, so it will be interesting to see how this issue develops over time.
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 R.S.C. 1985, c. c-42.