With more than 1 billion monthly users, YouTube is the world’s largest video sharing platform; in 2012, only seven years after its creation, 60 hours of video were uploaded every minute and YouTube mobile alone received over 600 million views per day. However, despite the website’s huge popularity, its policy on copyrighted material (especially concerning music and audio) is still perceived to be a ‘grey area’.

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‘YouTubers’ confused over the issue can find themselves in the midst of a (often accidental) copyright infringement dispute, which can lead to users’ accounts being suspended, videos muted and even to litigation. In order to avoid these situations, all YouTube users should have a thorough understanding of the website’s copyright policy and know how to respond to false infringement claims, should they be served one.

Public domain and royalty free music

The easiest way to avoid copyright violations is to use original content; featuring (even just a fragment of) any other musical piece counts as infringement if done without the owner’s permission. The only exception to this rule is when the work is in the public domain, making it free to use without any restriction under copyright law. According to the Berne Convention (signed by 172 countries), copyright protection must be granted until the expiration of the 50th year after the author’s death, or the 50th year after a work was willfully made public (in the case of anonymous works). However, the Convention only sets the minimum set of standards and there is no such thing as international copyright law, meaning that the exact time when a work enters the public domain varies from country to country.
If the work used is not in the public domain, users are always required to obtain a license. Websites providing royalty free music make it very easy (and, in some cases, free) to get this permission; popular examples include Incompetech and Aalborg Soundtracks.

Fair Use

Copyright law does not only entail a set of restrictions; there is also a series of exceptions covered by the term ‘fair use’. Fair Use is a US legal doctrine helping to ‘prevent a too rigid application of copyright law that would stifle the very creativity the law is designed to foster’. It stipulates that people can use copyrighted material under certain circumstances, such as criticism, commentary, educational purposes, scholarship, research and news reporting. Section 107 of the Copyright Act calls for consideration of four factors in evaluating a question of fair use: the purpose and character of use (whether it is commercial, or non-profit), the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole and the effect of the use on the potential market for or value of the copyrighted work.

Many YouTubers assume that as long as their video is ‘fair use’, no copyright infringement claims can be made against them, but this is not the case. The concept of fair use does not protect from legal action being taken against a user, but from being found guilty of copyright infringement in a lawsuit. If the copyright holder does not agree with the content of a video, for example, they can still decide to settle the matter in court. Furthermore, while, for example, educational videos fall under ‘fair use’, users must be able to prove that the music used in them is required for teaching purposes; using a hit single as background music to a make-up tutorial would still not be justifiable.

Due to the expansive application of US copyright law, all YouTube users, regardless of their country of residence, should be aware of the concept and correct application of ‘fair use’; an uploader can be sued for infringing US law as soon as their video is stored on YouTube.com.

YouTube’s Content ID System

The exponential growth of YouTube brought about an unprecedented amount of copyright infringements by uploaders on the site. Only 0.5% of all music claims in response to these are issued manually; the remaining 99.5% are handled through the platform’s automated Content ID system. This digital management service allows rights holders identify, claim and monetise unlicensed use of their intellectual property. Depending on the copyright owner’s policy, some Content ID claims result in blocking, or muting the video, or making it unavailable on certain platforms. In other cases, rights holders allow the use of their content in exchange for gaining advertising revenue from the video.

Despite the system’s ability to identify potential copyright infringement cases on an unprecedented scale, it has been widely criticised by YouTubers. Currently, every potential copyright infringement claim identified by Content ID triggers an automatic copyright claim on behalf of the copyright holder and freezes all revenue streams of the video. Recognising the damage this policy has done to content creators, the platform announced a major reform in April; after its implementation, users will not miss out on revenue while a dispute is being resolved.

While this marks an important step in fixing the system, other issues remain. Both creators and copyright holders contend that Content ID is not sophisticated enough to accurately discern which videos belong to the category of fair use, leading to many false claims being made.

Contesting a Content ID claim

Due to the shortcomings of Content ID, it is important that YouTube users know how to dispute a copyright claim. The following list by TurboFuture provides a handy guide:

  1. After a user receives an e-mail saying that one of their videos has a copyright claim against it, they can go to the video manager and click on the notice next to the video. This will either say “Matched Third Party Content”, “Video Blocked in Some Countries”, or video removed; clicking on it will lead to the dispute claim page.
  2. To dispute the claim, click on “I believe this copyright claim is not valid”.
  3. Select one of the list of options. Review it and click “Continue”.
  4. On the next screen, the user can select the claims they wish to dispute and in a box, they should state why they are allowed to use the music in their video. They can explain why it falls into the category of fair use, or provide a link to the license they have (in case of royalty free music, for example).
  5. The last step is checking a box agreeing that the user is not misusing the system – contesting a claim where they are incorrectly claiming fair use could result in serious legal action against the user.