The International Olympic Committee’s (IOC) new rules ban viewers of the 2016 Rio Olympics from creating and sharing Graphic Interchange Format graphics (GIFs). The short videos, typically used as sources of comedic relief, are common on social media outlets like Tumblr and Twitter. Popular GIFs include one of U.S. Gymnast Laurie Hernandez being cheeky by winking at the judges during her floor routine. Among the most enduring is one of superstar swimmer Michael Phelps scowling at fellow swimmer Chad Le Clos as he prepares for the 200-meter butterfly semi-final.
Will the millions of people sharing these Olympic GIFs be punished? The short answer: it is legally possible, but success is highly unlikely.
Enforcement will be a major road block
Part III of the News Access Rules for the Rio Olympics expressly prohibits the use of Olympic material for GIFs. Pursuant to the Canadian Copyright Act (the “Act”), the IOC has the right to produce, reproduce and prevent others from using Olympic material in any way with which they do not agree. Anyone, including the everyday Facebook and Twitter user, is therefore in violation of the Act’s s. 27 when they create and share Olympic images over the internet without the consent of the IOC. However, enforcement of the new rules will likely be a major road block for the IOC. As explained by Professor Giuseppina D’Agostino: “[y]ou can legislate all you want but at the end of the day if people are not going to obey by your rules . . . you’re going to have an uphill battle”. With social media users totalling in the billions and extending to almost every jurisdiction on the planet, the cost of rigorous enforcement may be too high and ultimately not worth it.
The IOC may instead decide to target the social media companies for providing a forum for posting prohibited material. In bringing an action, the IOC must establish that these forums authorized the rights-infringing activity as per the Act’s s. 27(1). But many social media outlets, like Twitter, have terms of use that expressly state that they respect intellectual property law and expect the same of their users. The terms indicate potential account removal for inappropriately posting copyrighted material.
Currently, a person authorizing an activity is only presumed to do so to the extent they do not violate the law. Furthermore, authorization does not flow from the mere fact that social media companies provide a forum for users to post the rights-infringing graphics. It is therefore difficult to support the position that social media companies like Facebook and Twitter authorize such rights-infringing posts.
The delicate balance between the rights of the owner and public interest
Courts have held the concept of fair dealing as not only a defence to copyright infringement but also an integral part of the Act and as a user right. Its purpose is to balance the rights of the owner to the profits of their copyrighted property against the public interest in promoting dissemination of such works. Users of this defence must prove that their copyright infringing activities were fair and for the purpose of research or private study, criticism/review or news reporting. The latter two do not infringe copyright when the author, performer, maker or broadcaster is properly mentioned.
The courts have stated that what is fair is a question of fact. In determining whether certain activities were fair the courts consider: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Twitter and Facebook users are likely posting GIFs for comedic relief rather than for commercial gain. The average post of this kind may fall under s. 29 of the Act’s criticism, parody and satire exceptions. Moreover, sporting events typically lack copyright to begin with, as held in Canadian Admiral Corp v. Rediffusion Inc [1954] Ex. C.R. 382, 14 Fox Pat. C. 114. (not followed by the Federal Court of Appeal in the later case of Canadian Cable Television Assn v Canada (Copyright Board)).
Sharing images and graphics of televised sporting events on social media has become widely popular among sports audiences, so much so that single GIF may be tweeted and re-tweeted millions of times. Furthermore, GIFs usually last mere seconds, not entire performances or games. Consequently, it will be very difficult to argue that GIFs provide a realistic alternative to watching the Games in a way that could be considered a substantial part of any work for the purpose of establishing a copyright infringement.
Could the ban upset users enough to forego watching the games?
Some fear that the IOC’s policy may do more harm than good. The ban may be seen as contrary to the celebratory spirit of the Olympics and users may consequently decide not to tune in. However, since many users have simply elected to ignore the prohibition and continue posting graphic material, it is unlikely the ban will have any lasting negative effects on the Olympic brand.
Olivia McKenzie is an IPilogue Editor and a JD candidate at Osgoode Hall Law School.