YouTube takes copyright law into their own hands with new policy on music infringement

http://ipkitten.blogspot.com/2019/09/youtube-takes-copyright-law-into-their.html

From mid-September YouTube will implement its new policy on how copyright holders can deal with infringements of their music on the platform. The changes effect the way copyright is enforced on YouTube, and it begs the questions; are they making their own copyright rules? And, if they are, and they are, how do we feel about that?

As readers will know, an infringement of copyright in a song on YouTube would happen if someone uses it in their video without a licence or permission of the rights holder, unless they are benefitting from a copyright exception [although the technology cannot recognise the purpose of the use and so on YouTube copyright exceptions can only realistically be utilised by users who are knowledgeable enough to submit a counter notification or dispute a Content ID claim]. YouTube currently provides rightsholders with tools to help enforce their copyright on the platform which allows the rightsholder to mute, remove, monetise or leave the uploaded video.

However, YouTube have stated that they noticed a trend of aggressive manual claiming of very short music clips used in monetized videos. They say that this feels particularly unfair, as the claim transfers all the revenue from the creator to the claimant, regardless of the amount of music claimed. As a result, YouTube announced that they are changing their manual claiming policies “to improve fairness in the creator ecosystem, while still respecting copyright owners’ rights to prevent unlicensed use of their content.”

A copyright holder can make a claim on any video that uses their content without permission — regardless of how short the clip is – that enables them to either block the video or prevent the uploader from monetising the video. The Manual Claiming Tool enables copyright holders to receive all the revenue from a video that includes their content.

However, under the new policy, copyright owners will no longer be able to use the YouTube Manual Claiming Tool to monetise from creator videos that use “very short or unintentional uses of music”. This change only applies to claims made with the Manual Claiming tool, where the rightsholder actively reviews the videos, and not claims made through Content ID match system.

Cute but controlling.
Image: Paul Appleton

Without the option to monetise from the uploaders video, YouTube suggest that copyright owners might like to leave “very short or unintentional uses unclaimed”. Since the new policy was triggered by a trend of aggressive manual claiming, this seems unlikely! Most likely, copyright owners can simply choose to prevent monetisation of the video by the uploader or block the video altogether.

YouTube acknowledged that the changes might result in more blocked content in the short-term, but that they feel this is an important step toward striking the right balance over the long-term.

The change in policy could be considered a positive step towards balancing the rights of the copyright holders and the users, but will no doubt be unwelcomed by copyright holders because they are losing a revenue option.

In their statement, YouTube mention several times how they feel and what they feel is fair and unfair. It might seem that YouTube’s feelings are representative of the movement towards platform control and enforcement of copyright rules. The risk of this is that these rules don’t necessarily correspond with the law. For example, what does YouTube deem to be “very short” or “unintentional”?

Under UK law there is a copyright exception for incidental inclusion in any event. But using a very short clip could still constitute an infringement. The difficulty is, it seems, that YouTube can only have an all or nothing monetising rule. This doesn’t reflect what would happen in a legal dispute, where the copyright holder would receive a percentage of the revenue. 
Whilst this Kat doesn’t necessarily disagree with the approach taken by YouTube, she does feel slightly uncomfortable about the reality of their ability to create their own copyright rules. 

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