A Stroke of Genius or Copyright Infringement? Mashups and Copyright in Canada

Mashups, songs created by combining pieces of two or more pre-existing sound recordings into one new sound recording, allow anyone with access to a computer and sound editing software to engage with and participate in the (re)creation of culture. Among other purposes, mashups allow individuals to critique artists, to make satirical statements on the nature of pop music or the music industry, to make new works out of existing cultural expression, and to craft homages to favourite artists or works. This article examines the extent to which mashups are permitted by copyright law in Canada. It is structured as follows. First, it will provide an introduction to mashups, defining the term and discussing the popular emergence of mashups. Second, it will examine whether mashups prima facie infringe copyright in Canada. Third, it will look at whether mashups are protected by the fair dealing defence. This article will demonstrate that many mashups created and disseminated in Canada prima facie infringe copyright. Furthermore, a large number of mashups that prima facie infringe copyright will not be protected by the fair dealing defence as it is currently being applied by Canadian courts. The question, therefore, of the extent to which the Canadian Copyright Act should be revised to permit individuals to create and disseminate mashups without infringing copyright merits discussion during Canada’s ongoing process of copyright reform. One possibility for reform is to incorporate a right to create and disseminate transformative works within the Canadian Copyright Act.