This article has been written by Ananya Agarwal, pursuing a Diploma in IP and Media and Entertainment Laws from LawSikho.
YouTube, launched in 2005 by former PayPal employees is now one of the biggest video-sharing platforms catering to around 2+ billion monthly viewers with an essentially young demographic. YouTube has ushered in a new generation of celebrities consisting of the likes of PewDiePie and Tanmay Bhatt. Due to the massive audio-visual content generation on this website, a discussion about copyright protection and infringement becomes pertinent. The following article outlines the copyright policy of YouTube as of 2021 and aims to aid bloggers on YouTube to understand their rights, duties, and remedies vis-à-vis copyright.
Why should bloggers know about YouTube’s copyright policy?
It is undeniable that the incentive for YouTube bloggers to keep creating content is revenue generation. As is common knowledge, the earning of YouTube vloggers is aided by advertisement revenue. A channel becomes more exposed to advertisements when the popularity of content increases. So, when content created by a party is reused or re-uploaded by another party, the content gets duplicated and the owner of the original video loses revenue. Thus, for protection of their content, YouTubers must be aware of the platform’s copyright policy and how it can protect them as well as how they should be careful in not infringing another YouTuber’s copyright.
YouTube’s copyright policy
Given the importance of protecting content as discussed above, YouTube has to take copyright infringement very seriously. According to the policy, if a user uploads a video created by another user, then he is said to have infringed the copyright if he has uploaded the video without the latter’s authorization. YouTube does not permit any user to use the content of the right owner even if they do not have any monetary interest in copying the content. Even copying a very minute portion of a YouTube video is considered as an infringement and the video is taken down immediately.
As in baseball, YouTube believes in the ‘three strikes and you are out’ policy. If you receive a copyright strike from YouTube for one of your videos this means that it has been removed from the community following a complete and valid legal request from the copyright owner asking YouTube to do so in compliance with the Digital Millennium Copyright Act (DMCA). Each time you receive a strike, you will lose certain features. Further, after the first strike, the infringer has to attend copyright school where he is given knowledge about infringement and YouTube’s policy and is tested on the same. After the third strike within 90 days, the channel is entirely rebooted and the platform will disallow you from creating new accounts.
Essentially, YouTube’s copyright policy is kicked into action in two scenarios, legal and non-legal as discussed ahead.
Legal: takedown notice
In case a user notices another user infringing his copyright on YouTube, he can file a takedown notice via YouTube in accordance with DMCA. To give context, DMCA was brought about so as to comply with certain WIPO treaties with the intention of creating liability for unauthorised dissemination of copyrighted work. At the core of this Act lies a DMCA takedown notice. This is a form of remedy available to one whose copyrighted work is being infringed on a user content generation platform. Such a notice can be issued by the complainant to the digital platform or service provider for copyright violation on the said platform. Therefore, when such a notice is served, YouTube looks into the veracity of the claim made by the infringed party. If satisfied that it constitutes infringement, YouTube takes down the violative content.
Non-legal: content ID match
Further, YouTube envisages a non-legal route of dealing with infringement too. The platform has created a Content ID system wherein the user uploading copyrighted material is given a Content ID claim. Content ID is a system that enables copyright owners to quickly and efficiently identify their content on YouTube. New video content uploaded to YouTube is scanned against a database of existing content submitted by content owners. Copyright owners can set Content ID to block uploads that match a copyrighted work they own the rights to. They can also allow the claimed content to remain on YouTube with ads. In these cases, the advertising revenue goes to the copyright owners of the claimed content.
In case a match is found, YouTube automatically files a copyright complaint for the infringed user. If your video has a Content ID claim, it doesn’t necessarily mean you are in violation of laws. It simply means that YouTube has recognised a part of your video that matches with another pre-existing video. It is up to the copyright owners to decide how to proceed in such a case. Often, creators allow their content to be used in YouTube videos in exchange for ad revenue. Ads might be incorporated in a video longer than eight minutes as per the platform’s policy. In 2018 in a news report, YouTube’s chief business officer Robert Kyncl said that in more than 90% of Content ID cases, copyright holders opt to collect revenue. YouTube has paid out billions of dollars to the content owners when there is a content-id mismatch. This is to ensure that more users and videos remain with the platform. The news report also claims that 98% of the copyright issues in YouTube are addressed through the content id mechanism.
However, if users do not want their material to be used, they have two options:
- Block the video. It may be blocked regionally or globally. This would restrict viewers to access this video.
- Copyright owners may choose to restrict the apps or websites where their content appears. These restrictions won’t change the availability of your video on YouTube.
It is important to note that a copyright removal or takedown on YouTube requires the submission of a formal notice from the copyright owner, with all the necessary legal requirements completed. You’ll know if a video has been removed via takedown as the video will display a phrase: “Video taken down: Copyright strike”. A Content ID block is not defined in law like a copyright takedown. You will know if your video is affected by a Content ID claim as the video will display a phrase: “Includes copyrighted content”.
Concept of fair use
Fair use is essentially a defence to a copyright infringement claim. It is a legal doctrine that says you can reuse copyright-protected material under certain circumstances without getting permission from the copyright owner. It evolved from the case of Folsom v. Marsh the facts of which in brief are that publisher Charles Folsom, who had published the first set of letters sued for “piracy of the copyright”. The defendant argued that the papers were not copyrightable because, as the letters of a deceased author, they were not private property and not “proper subjects of copyright”; that even if copyrightable, as works of the President they belonged to the United States; and lastly, that their use was fair, because it was the creation of an essentially new work. In this case, the U.S. courts laid down four factors by which fair use can be determined:
- The nature and objects of the selections made.
- The nature of the original work.
- The amount that is taken.
- The degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.
In India, the concept of fair use is replaced by fair dealing as per Section 52 of the Copyright Act. Whether a person’s use of copyright material is fair would depend entirely upon the facts and circumstances of a given case. There is a thin line between fair dealing and infringement.
Given that the rules regarding fair use and fair dealing vary country wise, YouTube does not adjudicate upon determination of whether certain work is fair use. Further, the Content ID system is also unable to recognize such a concept. However, it does provide certain tools which enable determination of fair use by the court, such as timestamps to determine the quantum of content used, monetary records to determine the degree in which the use may prejudice the revenue making of the original content etc. Further, there are certain cases in which the use of copyrighted content is prima facie fair use. Thus, YouTube asks its users to analyse whether the use is fair before filing for takedown of the content. To protect freedom of speech, YouTube has asked creators to join an initiative that seeks to indemnify users upto 1 million dollars in legal costs if a takedown action results in a copyright infringement lawsuit.
In view of the same, it is important to note in what cases fair use will not be applicable:
- When the derivative work is used commercially to generate profit for the creator.
- When the derivative work is not transformative.
- If a majority portion of the original work is copied.
- If the exploitation of the original work hampers the effect of the original work whether monetarily or otherwise.
However, depending on the facts of the case, these points may be overlooked if a strong case for fair use is made employing the four-factor test laid down in Folsom v. Marsh.
Remedies available to alleged infringer
Inversely, what can you do as a user if a copyright infringement claim has been issued against you? In case your video is taken down via a takedown notice, the first thing to do would be to file a counter-notice. In this notice you may detail that either the use of copyrighted content on your video comes under fair use or there is a misidentification on part of the copyright owner. YouTube then reviews this counter-notice and forwards it to the copyright owner. In the following 10 days, the copyright owner must provide proof of initiating legal action. However, if the video is removed for some other reason, you will have to wait till the expiry of the copyright strike.
Alternatively, if a Content ID claim has been filed, you may respond on the grounds that:
- Your content was misidentified.
- You have valid authorization or licenses to use such content.
- Your usage comes under fair use or fair dealing
- If it is your original content.
After this, the copyright owner will have 30 days to respond to the same or the claim self expires. At this point, the copyright owner may release the claim if he agrees with your counter-notice, uphold their claim if he disagrees or submit a takedown request.
Some other things you should know
- Lack of a profit-motive is no excuse for copyright violation. If as a creator you do not intend to monetize your video but infringe on another’s copyright, it will not extinguish your liability as an infringer.
- Attribution is no excuse for copyright violation. The focus for absolving violation is on permission. Therefore, merely crediting someone’s work without gaining the requisite authorization or licensing will still be considered as copyright violation.
- A common notion prevalent is that a creator may use 40 seconds of another creator’s work but such a notion is completely false. No amount of content may be used unless it is considered to be fair use as discussed above.
- Copyright strikes dissolve after 90 days. As long as you haven’t struck out completely, the first two strikes may disappear after a while. If you get another strike, the clock starts over.
The 2019 EU directive poses a threat to the platform’s safe harbour status. Under the new rules, which member states have two years to formally write into law, tech platforms like YouTube could be held liable for hosting copyrighted content without the proper rights and licensing. That’s a big change from the status quo, which generally assumes platforms are not legally liable for their users’ uploads so long as they take down infringing content once flagged. Due to this, YouTube has made its controls even stricter curbing freedom of expression of its creators to a large extent.
Given that the platform’s Content ID system has restrictions in terms of determining fair use and immediate way that the takedown mechanism is triggered, it can be fairly said that YouTube’s copyright is stringent and restrictive. Every creator who seeks to take advantage of YouTube’s big audience, must be well acquainted with its copyright policies since an infringement suit is quite the costly affair. It remains to be seen whether YouTube’s copyright policies will suffocate the creators completely or will usher in a host of new original content.
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