The artist as user: the problem with UGC in the new Copyright Act

As I am preparing my course Cultural Production & the Law.  I am setting aside a class to discuss user generated content.   A refrain from anyone who has heard me speak knows that I do not see the utility of this provision. 

In Teresa Scassa's article:

The UGC exception in Bill C-11 touches only a subset of UGC,

and characterizes the “user” in UGC as one who makes use of the

copyright-protected works of others. This is not without its own

difficulties. In the first place, it perpetuates the myth that the regular

creator” does not borrow from or use the works of others. They may

not do so quite so explicitly, but the contemporary creative context is

rife with examples of appropriation both from the public domain and

from copyright-protected works.

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Further, by emphasizing the “use”

of the works of others, it constructs UGC as a more parasitic activity

than perhaps it deserves to be. Some UGC may be highly creative,

innovative and transformative.

Sacassa comments betray what is I think a commonly misunderstood and continually misapplied assessment of what borrowing from others and appropriation is.  There is a big difference. 

One of the problems with the copyright taxonomy is that artistic expression and software coding are found protected by the same stature.  Those who write about technology do not often understand much about art, its histories and the purposes o which legla regulation has been put.  All art builds on what has come before it but that it not the same as saying appropriation which is an intentional act.