YouTube’s recent policy change a clear step in supporting Fair Use

Earlier this month, YouTube made several policy changes in relation to copyright strikes, Account Standing and Community Guidelines (https://support.google.com/youtube/answer/2797387?hl=en) which despite appearing to be a minor one is actually another move by YouTube towards supporting fair use for its creators.

In November of 2016, YouTube announced it would offer legal support on the basis of fair use to a select group of content creators on Youtube that receive copyright claims. (https://techcrunch.com/2015/12/17/googles-move-toward-fair-use-in-anticipation-of-youtube-red/).

Despite the initiative, several well known YouTubers continued to pressure YouTube to respect Fair Use laws even creating a campaign through a twitter hasthag #WTFU (Where’s The Fair Use). (http://www.craveonline.ca/design/958857-youtube-responds-wtfu-claims-will-strengthen-communication-creators).

This past month, YouTube moved towards respecting Fair Use with a small yet substantial change. Until recently, through YouTube’s copyright takedown platform, a copyright owner had the ability to issue a ‘copyright strike’ on an entire video for any image or clip or thumbnail which may have appeared. Almost immediately, the entire video was removed and the creator received a ‘copyright strike’. While three strikes terminates the creator’s channel/account, one strike was equally crippling.

The process required either a retraction from the copyright owner (which is unlikely when debating fair use with a copyright owner) or filing a counter notification based on various defenses including fair use. The counter notification had a minimum delay of ten days before the strike was removed unless an injunction was filed in federal court by the copyright owner. During that time, features such as scheduling of videos and the use of cards (pop-up links placed on videos to redirect to other videos, websites or merchandise) were disabled.

The system apart being arbitrary placed an automatic assumption of guilt on the creator. A five minute transformative video with hundreds of images and clips could be disabled for an image that appeared for one second.

In this new policy change, YouTube notified creators that in the event of a strike, one would still have access to most of YouTube’s features and programs. The only feature that may be automatically disabled is live streaming. In fact, YouTube now deems the first strike as a ‘warning’ stating in its FAQ “we all make make mistakes…your account won’t be penalized.”(https://support.google.com/youtube/answer/2802032). This is quite a change from the previous policy where an automatic penalties were applied to the account.

Effectively, YouTube has put less power in the hands of copyright owners and given much more proverbial breathing room to content creators. Since the three strike policy has not changed, rogue copyright infringers will not benefit from these policy changes. This was aimed at creators legitimately creating transformative works as outlined in the doctrine of fair use yet on the receiving end of copyright strikes and left scrambling to deal with the after effects.

YouTube has not taken lightly to copyright matters and has been extremely proactive implementing new technologies to help owners identify their work (https://techcrunch.com/2014/12/08/youtube-now-tells-you-how-copyrighted-music-will-affect-your-video-before-you-upload-it/). Over time, they have demonstrated a willingness to work with copyright owners. However, the stars of YouTube are not the studios or record labels but people such as PewDiePie with over 46 million subscribers creating original programming for their subscription service YouTube Red (https://techcrunch.com/2016/02/03/scary-pewdiepie/). These ‘stars’ can very well be courted by companies such as Facebook which is aggressively attempting to bring over well known Youtubers (http://fortune.com/2016/07/19/facebook-paying-vine-youtube-stars/).

The move by YouTube may not be overhaul creators envisioned however it is a clear step towards embracing Fair Use. We can expect more strategic changes by YouTube giving creators more freedom and ensuring they use YouTube as their ‘platform’.