Copyright Execptions: A Legal Guide For YouTubers


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The very essence of this research is to provide readers and YouTubers ( Video content creators who publish on Youtube ) with a legal analysis and guide on copyright Exceptions . A plethora of take down requests by owners of copyrighted materials ask YouTube to remove the said videos containing copyrighted material which infringes an owner of the copyright. Albeit there are some instances where some take down request are done on videos that are within the meaning of the definition of fair use. In other words those videos cannot be flagged for take down by YouTube as is, due to the very fact it comes under the ambit of fair use protection , which is an exception to copyright. The Courts have even held that the copyright holders must duly consider fair use before subjecting the youtuber a copyright take down notice.

Youtube  indemnifies youtubers whose fair use videos have been subject to take down notices, wherein such notice leads to event which further  leads to a lawsuit for copyright infringement  for up to 1 million USD ( United States Dollar ).

This initiative by Youtube has ensured protection to youtubers in furtherance of  protecting their content and work, it also educates people the importance and limits of the doctrine of fair use.

Copyright Exception:

  • Parody:

Parody is an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect. In laymen terms Parody is the work purely done on the basis for comic relief of an existing work created to mock, render comments, or making fun of it’s subject, author, style of the original work. Also, precedents hold that parodies are a protected area of speech, and can take enough of the original work which is subject to be a parody.In other  words, in order for the video content to be declared as a parody the video must follow the aforementioned characteristics.

  • The Doctrine of Fair Use:

This doctrine demarcates the portions of copyrighted material which may be used without consent or permission of the owner of such copyrighted material provided that the use of such material is fair and reasonable which in furtherance does not substantially impair the value of the materials, which in addition does not curtail the profits which are reasonably expected by the owner.In other words the doctrine of fair use  is a mechanism of defense to a copyright infringement.

The Courts factors in determining the Doctrine of Fair Use

1.Purpose and character of the use:

Courts focus on the use of such content on whether it is trans formative, as in , if it adds any new expression or meaning to the original content.Here the purpose and character of the use, must justify the doctrine of fair use by demonstrating how it provides any additional knowledge or progress to such content. A paramount point of consideration in recent fair use cases is the very extent to which the use of such content is trans formative.

Campell v. Acuff-Rose Music Inc[1]

The Supreme Court of the United states in the Year 1994, held that if and when the purpose of the fair use is subject to transformation , this implies as the first factor in favor of fair use.

Prior to the Campell v. Acuff-Rose Music Inc judgement, an article was published in 1990 by Federal Judge Pierre Leval titled “Toward a Fair Use Standard”, argued that trans formativeness is a paramount determination factor to such fair use analysis.

In Re: Blanch v. Koons[2] , the case primary focused on Transformativeness, wherein Jeff Koons used a photograph and appropriated a central portion of the same, here Koons prevailed as it was found the the photograph was trans formative in nature and thus was part of the first fair use determining factor.

  1. The nature of the copyrighted work:

The courts determination of the second factor of fair use is the nature of the copyrighted work, to get a better understanding of this point, the following is provided:

In laymen Words private Ownership of content that are  rightfully belonging to the public domain such as facts and ideas are not protected by copyright, whilst on their expression weigh copyright protection. For example when the “Zapruder film” ( J.F.K Assination ) was purchased and copyrighted by Time magazine, albeit the copyright was not upheld due to the factor it  was in the public domain and interest of the public.

  1. The amount and substantial portion used in relation to the copyrighted work as a whole:

The third factor demarcates that borrowing  small portions of material from the original work is more likely to be considered fair use than the contrary of borrowing large portions. Albeit, small portions from the original work may weigh against the fair use in certain circumstance where such content portrays the climax or the main and important materials of the work.Overall this factor asses the total amount of copyrighted work that has been inculcated to the new work. A main point established is the less amount of materials taken from the copyrighted work, then the work will more likely be considered as fair use.

Sony Corp. of America v. Universal City Studios, Inc[3]

The Supreme Court of the United States ruled and upheld that making individual copies of an entire television series and shows for purposes of time shifting, does not constitute a copyright infringement, because it is fair use.

4.Harm caused to the potential market of the copyright owner:

In simple terms harming the copyrighted material to the owner in earning a profit is less likely to be fair use, albeit Courts have in some cases rendered exceptions involving parodies.In other words this factor demarcates if the creator of the video significantly harms the copyright owner’s market, the burden of proof lies with the owner of the copyright to show the impact of such infringement.Here, the Courts consider the following two kinds of harm to the market of the copyright owner, Whether:-

1.The use affects the owner of the copyright material directly in the market

  1. It affects the potential market which harms beyond direct substitution ( the licensing market )

A point to be noted is that Copyright considerations may not shield a work against adverse criticism.

[1] 510 U.S. 569 (1994)

[2] 467 F.3d 244 (2d Cir. 2006-10-26)

[3] 464 U.S. 417 (1984)

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