The continuing battle for observence of Fair Use on Youtube continues. There are several things that the movement have got right, and other things it has gotten wrong. In this video I explore the limits of Fair Use, the neccesity of it and how things could move forward.


Fair use. What is it?

Okay, now that fair use has been highlighted by Doug Walker it seems some are waking up to the realities of copyright enforcement on the internet, particularly on Youtube. Now while I am cynical enough to point out that he never saw fit to talk about this upfront until Blip had died and his arse and livelyhood was on the line I’m not going to talk about that. This is most certainly not meant to be a discussion about Doug but I do have to use his work as an example because when it comes to fair use, his is a prime example of the blurry pixilated grey line that constitutes Fair Use and Fair Dealing. Before anyone gets offended that I’d question the status of Dougs work let me say this…. I like his work, it’s given me many hours of enjoyment and as use of copyrighted material goes I’d say his is more likely to promote it’s subject than be to it’s commercial detriment. But is it ‘Fair Use?
For your information I will be discussing this in context of video works rather than other publishing forms for the most part.
Lets take a look at Fair Use. I stress at this point that I am not a copyright lawyer, this is my best, amateur take on the subject based on what I have been able to glean from more hours pouring over the laws and legislation than many would bother to put in.
So… Fair Use….
Fair Use is a provision in US copyright law, it provides a guide to exemptions to copyright protection which allows for the use of copyrighted material without permission from the copyright owner. This use is limited by certain caveats which are fairly well known but often misinterpreted.
These caveats relate to the ‘use’ of the material which are generally related to the activities of, but are not entirely limited to criticism, news reporting, teaching, scholarship, or research purposes.
Parody too is to be considered under the mantle of criticism

The Supreme Court has unequivocally held
that a parody may qualify as fair use
under § 107. According to the
Court, a parody is the “use
of some elements of a
prior author’s composition to create a new
one that, at least in part, comments on
that author’s works.”
Like other forms of comment or criticism,
parody can provide social benefit, “by sh
edding light on an earlier work, and, in
the process, creating a new one.”
In other words, parodies can be considered
“transformative” works, as opposed to
merely “superseding” works. Since
transformative works “lie at the heart
of the fair use doctrine’s guarantee of
breathing space within the confines of c
opyright,” the more transformative the
parody, the less will be the importance of
other § 107 factors that may weigh
against a finding of fair use.

The caveats though put limitations upon these uses though. You cannot for instance riff an entire movie in video form and claim parody. The limitations in US law are as such….

(1) [Consideration should be taken of the] Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes:
(2) Nature of the copyrighted work:
(3) Amount and substantiality of the portion used in relation to the copyrighted work as a whole:
(4) Effect of the use upon the potential market for or value of the copyrighted work:

These considerations basically constitute a sliding scale which moves the security of a fair use claim one way or the other. The first consideration is the purpose and character of the use. This is a look at why the material is being used. Is it commercial? or is it non profit or educational? Is it using the material as a form of commentary? or is it there for convenience? Is it verbatim use? Or is it transformative? With Dougs material it is his livelihood, a commercial, for money, venture and not really educational rather than being an entertainment product which would count as being a less important than an educational product. It does fall under the category of parody though in context of the weighting the negatives give it’s likely to slide further down the scale than he may like.

The second consideration is the nature of the copyrighted work, for instance is the copyrighted work factual or fictional. The use of film and other imaginatively based material is seemingly less protected than the use of factual material for obvious reasons. This doesn’t mean that Fair Use doesn’t apply but it is less weighted in the users favour. Of course this can be mitigated by other factors.

Thirdly, the amount and sustainability of the portion used in relation to the copyrighted work as a whole… This is how much you use of the original material in its entirety and whether or not it is edited or the likes. My work for instance is very transformative, it usually constitutes no more than 10% of the films total runtime and is either presented as isolated clips of limited length or clips that are muted and feature my narrations over the top of them.
This area is a very uncertain area as there have apparently been examples of works in their entirety being used being protected by fair use and others where a simple clip has been deemed infringing. The general guideline is that the less you use and the more highly edited it is the closer you are likely to be to fair use. There are no hard and fast guidelines here, it all relates to context and purpose but if you don’t need to have it, if it doesn’t have purpose, it’s best not to put it in.
This is where my own work comes into the most question though I would argue that I’m trying to keep clips relevant…. the copyright holders may, and apparently often do, disagree. The quantity of my use for instance can be justified on my part and it’s not unprecedented in context of what I do though it’s not necessarily justification that the copyright holder would accept. When it comes to the likes of DMCA’s and copyright strikes this is one of the problems. The opinions are only legally tested at the point they hit a court. Doug is probably in more hot water than myself when it comes to this. His usage of footage is far more extensive with a wider range of ‘the heart’ of the film used though the parody defence would apparently allow for more footage to be used to ‘conjure up’ the original.
And lastly, The effect of the use upon the potential market or value of the copyrighted work. This is essentially examining how and how much the use affects the market value of the work. If I were to do a VOD riff of Jurassic Park for instance it could be argued that anyone seeing that would be less likely to buy the original. Using less footage and avoiding film breaking spoilers for instance will tip the balance in your favour. Given the extent of plot coverage through copyrighted footage Doug uses he is on some shaky ground here particularly considering he’s covering the film extensively from start to finish in order. The question you need to ask to some extent is do I need to see this film after watching this review/critique? Has this video made watching the film a redundant activity? It is not of concern if the review is entirely negative, saying you hate the film and pointing out every one of it’s faults in excruciating detail is not what counts in this case against the harm to the films marketability, that would likely fall under other laws, it’s simply whether or not the existence of the work is likely to divert the market to itself to the detriment the copyrighted material. In Doug’s case it could be argued that the more obscure material would benefit from the exposure though it would hardly be the case for the higher profile stuff.
It needs to be stated here…. This is how the US handles copyright. The UK has a similar law in Fair Dealing which has many of the same features but of course the internet is international and Youtube crosses many boundaries across the world. This is one area that the world has yet to catch up with, we are stuck between an old system of individual countries with their own laws and standards and an internet that has demolished many of those in practical terms. Spain, home of the notorious EGEDA has no fair use equivalent and many other countries are in a similar position. Where a site is hosted means nothing in this regard so even though the site is based in the USA it is subject to the laws of the land in which it is available. This may not sound fair but then take into regard that there are some countries which do not enforce copyright law as we know it or may break certain other laws in the US or UK regarding content and their availability in our countries is not tolerated so it works both ways.

It should be plain from this brief exploration of the fair use exemptions and considerations that it is impossible to be definitive about them, which is undoubtedly a big part of why Youtube do not want to get involved. Whether it’s Dougs work or my own it’s very tricky to be definitive in legal terms as to what ground we stand on and this is part of the problem. The fight for fair use is something that Yutube should be involved in though funny enough it’s not something that can be effectively fought on Youtube itself rather than it needs resolving in the political sphere, somewhere where Google and others could have significant sway. Google can do some things to redress the imbalance in the meantime though.

Youtubes extreme bias when it comes to the copyright process is particularly problematic because it so heavily geared in favour of the claimant. It is a system that is so entirely open to abuse by anyone without oversight that on my own channel I have a multitude of clearly false claims that I would have to risk my channels existence to fight.
There needs to be some kind of penalty for claimants who make frivolous or false claims, there are ways to assess this activity (like quantity of and success rate of claims) and it doesn’t preclude the use of the DMCA take down by the claimant. If they feel aggrieved there also needs to be communication between the claimant and the accused. The system as it is leaves the accused without the ability to be sure that their case has been given due consideration. I’m sure that many cases could be sorted out with better communication and a chance to talk it out, even if that results in coming to a deal with the copyright holder regarding monetisation or other options.
Next the monetisation of a video for a claimant should be withheld until the dispute or claim is either conceded, verified or resolved. Any money made in the time the video is withheld should then be assigned to whoever the dispute favours. It is too easy for false claimants to make a lot of money off of peoples videos over the month it can take to resolve the dispute. That is essentially allowing systematic theft and fraud.

The contact details, if shared, should be done mutually. The claimant should also go through some kind of verification process to ensure they have the right to make the claim. This should be fairly easy in the case of big companies and for smaller profile complainants evidence could be supplied in the form of publication dates on videos, blogs and the likes. There are other ways to demonstrate copyright ownership as well. This of course does not preclude the path of a DMCA take down if needs be. If the contact details are sensitive because of security issues then there should be a way of handling the communication through a third party.

The automatic detections need to be verified by a human. All take-downs and copyright penalties should require a person to watch the video to confirm before any action is taken.

Youtube should also require the claimant to answer some questions to verify that consideration has been given to fair use.

And these are just a few suggestions, which I understand would need figuring out and refining but even these steps would help to redress the balance without excluding the rights of a copyright owner. I’m all for protecting copyright but fair use is equally important in terms of how we interact with the information and art in our world.
When it comes to Dougs work and indeed my own there is cultural value in what we do and if anyone thinks that’s less important than the rights of a copyright owner I would point out that being able to interact with the art and information around us means the difference between having a voice and being part of society and being dictated to and not being able to participate in society. When it comes to parody,satire, education and reportage fair use is part of their blood. It needs bolstering and supporting especially in these days where a mass cultural grab is going on that threatens the likes of the public domain and expiration of copyright on work.
Youtube really shook things up when it arrived and to this day, despite all the measures taken it’s not difficult to find blatant copyright infringement within seconds. To believe that this debate is one sided is delusional. Here are a few tips for uploaders…. uploading a copyrighted work in part or whole as an unedited, un-transformed segment without any or significant context of commentary by the uploader is almost undoubtedly copyright theft. This means if you upload a clip of the Daily Show or for instance an advert recorded off the TV, in isolation with no further additional material to add to it is almost certainly copyright theft though the latter example could be swung closer to fair use in other ways with a minimum of work considering it’s lack of market value. And no, shrinking the screen, flipping the image or any of those other measures are not something that are likely to swing things in your favour, thats just trying to avoid the bots and doesn’t count as transformative use…..
Also, simply disclaiming rights to the clip is not something that tips anything in your favour, the work needs to have your own input and any footage or extract needs to be properly attributed. Saying ‘I do not own this clip’ when presenting an unadulterated, verbatim clip is not a defence against an accusation of copyright theft. Acknowledging the copyright owner is only useful as part of legitimate fair use. I have also seen similar claims of fair use for the purpose of entertainment plastered on Youtube description boxes which makes no sense when it’s an unadulterated clip with no mitigating elements to make it fair use.
Quoting the DMCA and Fair Use clause in the description box means nothing if the work is not actually fair use….
Long story short, the blatant copyright theft on Youtube is something that makes fair use a harder fight to win. But this said the response from copyright holders and the systems Youtube have put in place are disproportionate and indiscriminate. The baby is being thrown out with the bath water and there are some major players who are not in the slightest bit upset about that.
So heres what needs to happen. Firstly Youtube need to make the process more equitable. No more giving the claimant all the power…. Make the claimant more accountable and responsible for their actions, introduce mechanisms for monitoring their actions and logging any abuse of the process which can result in them losing their ability to send out notices autonomously or even being banned from Youtube entirely just like anyone else who misbehaves can. Make them THINK about the claims they make, make it so there are consequences for careless and whimsical actions they take…..
Outside of Youtube fair use needs to be bolstered with better clarification of what’s allowable, set minimum standards of what constitutes infringement and educate both the public and the copyright holders as to what fair use is and why it’s important in terms of entertainment and culture as well as in social matters. I for one would love to work with the industry as to how to facilitate fair use in a way that serves them as well as us but at present there are way too many corporations and studios that have gotten stuck in the old ways and are refusing to budge, too enamoured with having total control, which is an delusion they’ve always had, and they’re unable or unwilling to recognise or adapt to how media and information use has changed over the last decade or two in particular.

This isn’t new though, when video cassettes arrived the industry tried to shut it down, much the same with audio cassettes. Whatever or wherever the technology is is where these battles have been historically fought, just like with censorship in general, and it’s about time the industry focused on the specifics of the problem rather than this knee jerk blanket attack on a form of media.

The most constructive approach to where we go from here is to try to get the industry to realise that most works that claim fair use are hardly a threat of any kind. Reviews, criticism and the likes are how we participate and interact with the cultural landscape we have and this truly has more up sides than down sides both for them and us. I for one would like to see the industry and of course those who hold copyright to be inviolate, working with the likes of Doug Walker and myself to find a more equitable playing field where we can set clearer limits and be able to interact with each other in a productive rather than an adversarial way. The fair use boundaries are deliberately vague, they are as such for a reason and a lot of law is similar. It is intended to allow for interpretation but unfortunately both sides of the fight are banging heads over interpretation in their favour which is unhelpful and ineffective. This is why we need to come to some common interpretation of what is permissible starting with the UK and the US where we already have some legal framework for fair use. Beyond these locations things become more tricky but there are no reasons why international copyright laws cannot be adapted to include such provisions though this would be a long term aim considering the negotiation process that would be needed. The fact that we have international copyright law does hold out some hope for such an agreement being possible.
So to address that question from the beginning…. Is Doug Walkers, or indeed my own work fair use…. the answer is both yes and no. We can only rely on previous judgements to guide us to the right conclusion, we lay not on either end of that scale of fair use vs copyright infringement but somewhere in between. The questions are how much do you think each of those caveats that count for or against us, work for or against us and more philosophically, are we reasonable in our expectations about our right to be doing what we do in the way we do it? These are questions the industry and Youtube itself also need to ask of themselves. For me the value of such work simply adds to world rather than takes away. Youtube has a decision to make, do they continue to allow media industry to dictate terms to them for the sake of a quiet life all at the expense of the users who made them what they are, or do they try to play by the spirit of fair use and free speech? They have no obligation legally to uphold free speech as far as I know but morally, particularly given the demonstrable power of the platform, they should surely be striving to protect it from censorship via copyright and DMCA abuse. We’re not asking the world of them, just a fair consideration of fair use. We who do this kind of work are not trying to be thieves, we are not trying to destroy Hollywood or take your money. For the most part we’re trying to enrich the very industry we are claimed to be stealing from. So to Youtube and the film, tv and creative industries and corporations, help us to help you, engage in dialogue and lets deal with your concerns while protecting our ability to interact with the media that is so important to us all.