According to a recent study by Cisco, in 2017, video content on the web will account for 69 per cent of consumer Internet traffic, and, by 2019, this statistic will reach 90 per cent. Video’s engaging nature and significantly higher conversion rates is an attractive alternative to plain text for web sites looking to engage and retain visitors.
On YouTube the most popular channels are operated by amateurs such as Video Gamer Felix Kjellberg of channel “PewDiePie” with more than 39 million subscribers, and toy reviewer “funtoyzcollector,” whose videos have more than four billion views. In the world of YouTube, currency is made up of subscriber count, views, and retention as these garner higher advertising rates.
While YouTube channels create their own content, they may use a variety of sources including music, motion picture, television clips, and even well-known brands. This is the case with much of the content shared across social media platforms as well. As such, the doctrine of fair use is becoming more prevalent on both YouTube and video content on the web, and copyright owners will need to re evaluate what to consider infringement.
Our company Valnet owns and operates a variety of well-known YouTube channels with videos that have tens of millions of views. As such, we often come across copycat accounts that use all or part of our content.
As a copyright owner, there are a variety of tools to manage and enforce one’s rights on YouTube. For one, copyright owners can use a system called Content ID, which identifies and manages their content on YouTube. Any time a video is uploaded to YouTube, it is scanned against a database of files submitted by content owners. In the event of a match, the video is flagged and the rights holder has a variety of options.
The owner may also submit a copyright claim via YouTube’s submission process. Once relevant information is submitted, including demonstrating proof of ownership of the alleged work that was infringed, YouTube will issue a “copyright strike” on the infringing party. Should a channel receive three strikes, the account will be terminated by YouTube.
In the event of a strike, a channel may deal with the copyright owner directly to issue a retraction or submit a counter notification based on a variety of reasons such as “fair use.” With a counter notification, the strike will likely be retracted by YouTube unless the copyright claimant files a lawsuit seeking an injunction to keep it offline.
While creators will often cite “fair use” in counter notifications, the concept is quite complex and requires significant legal analysis, making it very difficult for a creator to fully appreciate what constitutes fair use. There is no proverbial silver bullet or black-and-white test as to when fair use is applicable and creators need to be extremely careful in doing so.
In short, fair use is the reproduction/copying of copyrighted material for a limited and “transformative” purpose, specifically to comment upon, criticize, or parody a copyrighted work. Such use does not require permission from the copyright owner and is a defence against a claim of copyright infringement.
Recent decisions indicate fair use is a concept copyright owners will also need to be familiar with when issuing notices. In 2007, Stephanie Lenz uploaded a 29-second home video of her children in the family kitchen dancing to the Prince song “Let’s Go Crazy.” Universal Music Corp. sent a “takedown notification” to YouTube. Lenz sent a counter notification claiming fair use and later sued Universal, alleging (among other claims) misrepresentation under the Digital Millennium Copyright Act. The Ninth Circuit Court of Appeals affirmed the district court’s summary judgment that, prior to sending a takedown notice under the DMCA, a copyright holder must first evaluate whether the alleged unauthorized performance constituted “fair use.”
In the world of YouTube and online video content where claimants will often send automated DMCA notices, this may very well change the landscape as parties may need to demonstrate that fair use was considered before a notice is sent. Further, we can expect that with this shift toward video content, we will see the concept of fair use at the front and centre of many cases.
David Felicissimo is general counsel with Valnet Inc. in Montreal.