Here’s an interesting development in how YouTube handles claims of copyright infringement for the appearance of “very short or unintentional” musical content. Let’s go to TechCrunch:
Going forward, copyright owners will no longer be able to monetize creator videos with very short or unintentional uses of music via YouTube’s “Manual Claiming” tool. Instead, they can choose to prevent the other party from monetizing the video or they can block the content. However, YouTube expects that by removing the option to monetize these sorts of videos themselves, some copyright holders will instead just leave them alone. […]
Creators were also given tools of their own that let them easily remove the clip or replace the infringing content with free-to-use tracks.
Creators on YouTube have increasingly struggled with record labels claiming copyright on their videos when snippets of music appear momentarily in the background, like from the radio of a car passing by. YouTube’s new rules don’t stop these claims from happening, but they attempt to discourage the claims by removing a key incentive for copyright holders: the ability to make money. […]
There are a couple of big caveats to the policy, though. It only applies to “manual” copyright claims — that is, when a record label or other rights holder identifies something that belongs to them and files the violation notice by hand. If a music clip is caught by YouTube’s Content ID system, which scans videos for infringing material, then rights holders will still be able to make money off of the video, regardless of how brief or unintentional the music is.
YouTube also suggests creators make sure that there is no music playing in the background when a video is shot. Even though, in many countries, that would be covered by a copyright exception anyway, meaning no licence should be required. But, of course, rights management tools on user-generated content platforms are still struggling with the ins and outs of copyright exceptions and, in the US, the always ambiguous concept of fair use.
There have been exceptions for music use considered ‘diminutival’ (a fancy word I learned from a lawyer at Podcast Movement in reference to, say, singing a single line from a song in your podcast). And traditionally music that appears in live broadcasts — for example, a news report with a song playing at a business where an interview is taking place — is exempt. Though, in that case, any not-live rebroadcast would need to clear the song. It’s tricky.
In the past, a music rights-holder could claim a song appearing in a video that falls under the category “very short or unintentional” — like a song blasting out of a passing car for a second — and monetize the entire video for herself. In some cases, this claim process makes sense, but, in others, it’s potentially abusive. The Verge notes a popular YouTuber who lost monetization on a prominent video because he quoted a line from Bon Jovi’s “Livin’ On A Prayer.”
YouTube’s new approach is unique. Monetization became an incentive to overindulge in copyright claims, so that option is no longer available for these short uses in manual claims. Instead, the video can be blocked, or its monetization credentials removed for everyone. The video creator has the option to edit the offending song out of a problematic video to reinstitute monetization. It’s important to note that if the Content-ID robot identifies a song, then all bets are off — as before, the rights-holder can claim full monetization without any options to the video creator.
The solution is flawed and, I’m sure, an experiment. The push-back is that any video that incorporates a song becomes a derivative work of the infringing content, no matter the length or context. Thus the work becomes the claim of the infringed rights-holder. I see that point, and the recent EU judgment on Kraftwerk’s metal-on-metal hit shows how diminutive length often doesn’t matter.
But my feeling is that, for now, this is a suitable compromise. The legal boundaries of user-generated content are still under review. Experiments like these will help define how we, as rights-holders, deal with an ‘everyone is a creator’ culture in a way that exercises ownership without discouraging spontaneous homespun creative works.
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