It’s a PDF, because of course it is, available for download here. Key point (bold added):
A piece of fanfiction is more likely to infringe copyright where it uses a “substantial part” of the original work, without permission from the copyright owner, and no exception applies (see Copyright exceptions and fanfiction below). Courts have held that a “substantial part” is a distinct, important, or essential part of a copyright work. In the context of fanfiction, this would include key characters and key plot elements, all things which fanfiction by its very nature explicitly uses and reproduces. Although the extent may vary between types and pieces of fanfiction, in many cases it will be arguable that fanfiction does use enough of a pre-existing original copyright work to be a considered a substantial part for the purposes of copyright infringement
And then, a bit further down (again, bold added):
For fanfiction authors who write parody fanfiction, or fanfiction that satirises the original story or story tropes, this would easily come under the fair dealing for the purposes of parody or satire. Similarly, fanfiction authors who write fanfiction which examine and critique the original material, either the original story itself or its themes and ideas, could arguably come under the fair dealing purpose of criticism and review. Other types of fanfiction, however, such as alternate universes or romance, do not easily fit into these purposes, and thus would not be covered by a fair dealing exception.
I’m kind of surprised about that “alternate universes” line, because to me that would seem to be exactly the type of fanfic that doesn’t use the “key plot elements” or–arguably, if it’s ATG‘y enough–“key characters”. Though I guess the latter in particular would rely on you making the argument that your fanfic isn’t copyright infringing because it’s, yanno. Too poorly written.
I’m also side-eyeing that whole “parody and criticism is okay but romance is by definition not parody or criticism” concept so hard, you’d better believe it. But the whole paper suffers from that “when men write it, it’s fine, but when women write it… ew!” thing, as seen in the direct quote:
[F]anfiction has become increasingly mainstream with the internet and “remix” novels such as Pride & Prejudice & Zombies, William Shakespeare’s Star Wars, and 50 Shades of Grey with (in)famously began as Twilight fanfiction.
“(In)famously”? Fuck you, buddy. It’s probably not a surprising to learn that I’m of the opinion that romance–or romantic elements–can absolutely be used for the purpose of criticism, particularly in the “queering” context used in a lot of fanfic. This is the premise of Liesmith and Stormbringer, after all, which are Norse mythology fanfic under the lens of, “Yeah but how would you interpret the eddas if you weren’t a straight white dude?”
But I’m oldskool fandom, so maybe that’s just my bias showing.
That being said, don’t take it to mean I think the Copyright Council’s interpretation of the law is factually wrong; I’m assuming it’s not. It’s the cultural assumptions underneath the law that I have a problem with…