Diana Cafazzo is an entertainment lawyer and a member of the KNOWlaw Group of the Toronto law firm of McMillan Binch. This article was prepared with the assistance of Kathy Johns.

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If it’s been a while since you visited one of your favorite ‘unofficial’ fan pages on the Internet, you could be in for a nasty surprise. It may have disappeared.

Many Web sites which feature images, sounds, lyrics or clips from movies, tv shows, pop stars, cartoons, sports teams or artists have been shut down by their operators. These dedicated fans are usually reacting to a threatening ‘cease and desist’ letter or phone call from the owners of the copyrighted material being presented on the pages.

The sites affected range from virtual shrines dedicated to hugely popular television series to more esoteric and obscure sites of interest to only a few. A sampling includes:

– from the world of tv and film: some Simpsons, Melrose Place, Star Trek and The Brady Bunch pages

– for cartoon lovers: various pages featuring Disney characters, Winnie the Pooh, The Far Side and, of course, the pages featuring the Tiny Toons, Sonic the Hedgehog and some of The Simpsons in pornographic poses

– for the musically inclined: the notorious Cyber Graceland Tour (one of the first to be shut down), some Pearl Jam pages, and the enormously popular On-Line Guitar Archive (olga), which contained some 15,000 files of guitar chords

– for the more sophisticated: a page featuring the drawings of M.C. Escher.

A love/hate relationship

Many of these sites still exist, but in modified format. Faced with the demands of the copyright holders and usually lacking the financial or legal resources to fight back, most creators of these pages promptly removed their apparently offending images, sounds, or icons. In their place you’ll find an explanation of the dispute as well as links to lawyers’ letters, personal laments (usually angry or resigned, and occasionally contrite), and even some boycott proposals.

These creators have found themselves caught up in the increasingly heated battle being played out between the creators and owners of copyrighted works on the one hand, and the ‘users’ ­ those who want to be able to use these works creatively, quickly and without hassle.

Owners & artists afraid

With the rapid expansion of the Internet and particularly, the World Wide Web (with its audio and video capabilities), many entertainment and publishing companies are finding out that their intellectual property assets can now be downloaded, manipulated and reproduced with ease. These owners have become increasingly concerned about their ability to control the use and reproduction of their property and, by extension, their ability to charge users for access to these often valuable properties.

Their worry is similar to that of record companies faced with dual-deck cassette decks capable of easily making copies of tapes and that of book publishers faced with the onslaught of low-cost, high-quality photocopying.

While those who maintain the unofficial Web sites often characterize these copyright owners as big corporate bullies, it is clear that many individual writers, illustrators, artists and musicians also share this concern about the protectability of their works and the ability of their publishing or recording company partners to turn the works into profits both for themselves and the individual creators.

The users’ side

More often than not, unofficial pages are nothing more than virtual fan clubs, offering information and praise about their honored subjects. They often represent many hours of work from dedicated, loyal and talented fans. As these fans point out after an attack by the copyright holder, their sites offer lots of free publicity and are strictly not-for-profit. So what harm, they argue, is being done?

Of course, some sites offer unfavorable and sometimes damaging depictions of protected images or icons (for example, the sites featuring well-known cartoon characters in rather compromising positions). Many people have more sympathy for the owners of these valuable characters in these cases.

And some sites, even though they’re not-for-profit, arguably do compromise the ability of the owners and artists of the copyrighted works to reap the economic rewards of their efforts. For example, the olga guitar archive was recently severely curtailed after receipt of a letter from EMI Publishing, one of the world’s largest music publishers. While the creators of olga insist that their archive actually inspires users to purchase even more sheet music, others argue that as a result of olga there is very little reason for guitar players to ever purchase sheet music again.

What’s permissible under the law?

The general rule of copyright is that no one is permitted to make a copy or modify a ‘work’ without the permission of the copyright owner. (The term ‘work’ includes paintings, drawings, books, p’ems, songs, recordings, films, etc.). There are some exceptions to this rule, but the big question is whether any of these exceptions can be used to defend the activities of the unofficial Web pages.

The Canadian Copyright Act contains ‘fair dealing’ provisions which allow users to reproduce copyrighted works without permission, but only if the use is both ‘fair’ and ‘reasonable,’ and only if it is for one of five specified purposes: private study, research, criticism, review or newspaper summary.

These rules have, in the past, been strictly construed by Canadian courts, and it is doubtful whether the content on many fan pages (often extensive catalogues of visual images and audio clips) could be defended on the basis that it is ‘fair dealing.’

u.s. copyright law offers a somewhat broader ‘fair use’ exception which allows for a limited amount of copying without permission for the purposes of criticism, commentary, news reporting, and educational uses, such as teaching and scholarly research. In order to determine what constitutes ‘fair use’ a court will ask:

1. Is the intended use of the copied work commercial or non-profit/educational?

2. Is the nature of the copyrighted work largely factual or fictional?

3. Is the work copied in its entirety, in substantial portion, or only a small/insignificant amount?

4. Is there any commercial injury to the copyrighted work?

Once again, it isn’t clear whether many of the fan pages could meet these tests.

Of course, some works are truly ‘in the public domain’ in that they are so old that the copyright in them has expired. This area of the law is very tricky in that each country has different terms of copyright protection and, from a practical point of view, is of little help to operators of Web pages dealing largely in 20th century pop culture.

Who’s winning the war?

The biggest ally of the unofficial sites in this copyright war is not the law, but the strength and power of the Internet itself.

While we’ve talked about various Web sites that have been successfully shut down or curtailed, many, many more continue to exist and to appear each day without any punitive action by the copyright owners and artists affected. There are still numerous Simpsons, Disney and Star Trek sites up and running.

How can this be? Some copyright owners have weighed the benefits of the constantly updated worldwide free publicity generated by the Web sites against the downsides of angering loyal fans and appearing to be heavyweight, profit-hungry corporations, and have remained silent.

Others only pursue the most egregious transgressors. Still others have agreed to license the use of images to page creators for no cost, but only as long as the works aren’t modified or used to make a profit.

Whether the concepts of ‘fair dealing’ and ‘fair use’ are the best way of sorting out the rights of owners and users in the context of the Internet has already been the subject of extensive debate.

A recent report of the Information Highway Advisory Council recommends that although the existing fair dealing provisions shouldn’t be tampered with, the government should review the situation on a regular basis to ensure that these rules keep pace with the demands of the electronic highway.

It’s clear from the ongoing battle between unofficial Web site operators and copyright owners and artists that the Net poses the biggest challenge to date in finding a fair balance between the interests of users and creators.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice on any particular situation.)