Nicoleta Rodica Dominte*
The expression ‘transformative uses’ encompasses all derivative creations based on pre-existing works without authorization of the author of the original work, whether they are protected by copyright or not. The main exceptions allowing transformative uses on the European continent are quotation, parody, and incidental uses.
The US Courts affirmed that the fair-use doctrine applies to non-commercial works that use copyrighted material as long as the material is not the dominant part of the video or affect the value of the work. The case refers to a video of a child dancing wildly in the kitchen while the radio is playing a great guitar solo (‘Let’s go crazy’ - by Prince). The mother decides to upload it on YouTube in order to share it with friends. In creating this video, multiple exclusive rights are involved, such as the reproduction right and the right to communicating the music to the public. When the mother posted the 29-second clip of her 13-month-old son dancing to Prince's "Let's Go Crazy", the Universal Music Group, responsible for enforcing the copyright on Prince's catalog, asked YouTube to remove the video. Fair use is a legal doctrine only in the United States. It permits limited use of copyrighted material without acquiring permission from the rights holders and very different from the exceptions and limitations stipulated by European national laws. On the other hand, in European jurisdictions such a use will probably be held as an infringement.
The case presented above could be an example for user-generated content, a new and unique exception from Canadian Copyright Act. Non-commercial user-generated content was introduced in Canadian Copyright Act in 2012. In Europe, the authors of the Gower Review proposed "that Directive 2001/29/EC be amended to allow for an exception for creative, transformative or derivative works, within the parameters of the Berne Three Step Test."