Author: Radhika Sikri
Class of 2024 | Jindal Global Law School
Image by Alexander Shatov from Unsplash
Introduction
There is an innate stagnancy in legislative regulations when attempting to catch up to internal policy decisions within private corporations emerging in the largely digitised world. Inevitably, international corporations enact independent regulations which meet broad and varying established standards and are allowed to settle and decide internal disputes roughly in consonance with the jurisdiction they are in. This poses ambiguity in how new sides to public and private rights emerging under the digitised field interact, as the dispute settlement and appeal mechanisms, just like the regulation, are entirely in-house. Furthermore, since said corporations decide the subject matter to be adjudicated, there is no recourse for the establishment of questions of law which it involves but an evaluation of whether or not there has been conformity with the objective framework it put into place. One such self-regulator is YouTube’s Content ID system, which operates through artificial intelligence as an automated copyright infringement detection. This piece will portray its inherent bias towards copyright owners which arbitrarily establishes for them a new means of revenue from the contours of the fair use/dealing defense often pleaded by content creators.
The popularity of streaming platforms outside of YouTube such as Twitch and Discord can be said to be both byproducts and departures from the platform. This is because although the need for their existence was ignited by the traction of content creators who could attract and create a niche audience, the breadth of the platform was deemed inefficient to continue catering to this new system it had generated. In other words, YouTube was one arena at the forefront of developing the way audiences consume new forms of digitised media, be it the bite-sized sensationalism of news outlets to cater to click-bait-able attention spans to the formation of communities within communities led by content creators satiating the market for the most arcane and unconnected cult fandoms. However, it has been unable to accommodate the flourishing of such micro-communities alongside its role as a conventional content creation platform.
Delving into the latter spectrum, content creators/YouTubers observed and encased on the commercialisation of dissemination of content by evaluating, commenting on, and curating various forms of popular culture media in the form of music/movie/art reviews, game play-throughs, live streams or pre-recorded content. However, not all of these creators are situated equally. The big players have preemptive protection through licensing, and commissions for the very copyrighted content they are including in their videos. This trend has arguably been the most popular with gargantuan gaming channels such as PewdiePie, Jacksepticeye, Markiplier, and VanossGaming who through contractual agreements and user licenses can promote copyrighted content and raise their appeal by attaching attractive gamer experiences showcased by taking the absence through their own.
It is pertinent to mention here that the rise of these channels was at a time when the Content ID system was still developing beneath the stringent system it is today, which allowed a relatively easier and less competitive market to boost their previously unsponsored material. This ties into the following discussion surrounding newer and smaller creators in the current convoluted market trying to climb the same ladder or exist in a comfortable space and continue maintaining their coterie.
What can be Fair Use on Youtube?
Traditionally, Fair Use works as an exception to copyright infringement and has been expanded to include parodies and criticism/commentaries on the original work. These add ‘transformative value’ and would extinguish any scope of prejudicing the owner’s rights by acting independently of the protected work and not a mere substitute. Since landmark precedents, such as Campbell v. Acuff Rose, have emphasised that the mere commercialisation of the content itself would not withhold its value as a defence under fair use, the iterations of copyrighted content used by various YouTubers can indeed fall under this category. To understand the ever-expansive corner of the same, the difference between replication of copyrighted material with minor tweaks and constructed video essays targeting the subject matter (clear scope for criticism/comment) to review and reaction videos, music movies and gaming must be examined. Fair Use on YouTube can take multiple styles.
Some examples include the channel Emplemon’s indulgence in the history of the World Wrestling Entertainment industry with a video essay on its domination over mainstream media by compiling and commenting on minor clips. Another is Theneedledrop’s brutal criticism and opinions on the quality of the music industry and newly released albums with short audio clips for emphasis. Want to re-live the internet’s perception of the Shrek series? CosmonautVareityHour’s ‘picture show’ is a series where the creator interacts with cult classics movies with carefully placed components of the original work for context. Alternatively, it can be argued that the use of protected material by content creators on YouTube can subjectively pass the various thresholds of originality as and when enforced resulting in a new kind of material capable of copyright altogether. However, all of these channels are routinely hit by Content ID.
Content ID and Claims
Historically the preference towards copyright owners has been evident as initially Content ID entirely removed copyrighted material and/or suspended channels hosting the same since copyright owners viewed the platform simply in terms of substitutability for their protected work. However, with the growing fanbase of various content creators and Youtube’s provisions for sponsored partnerships under Google’s wing, copyright owners now recognise the economic incentive in enforcing their rights (through claims which divert revenue from ‘infringing videos’ to themselves) merely by filing a claim under the Digitised Millennial Copyright Act . When a video on the platform is struck by such a claim against it, there is a de-facto interim relief to the claimant by either holding the revenue or removing the video altogether.
Although there is a provision under the Content ID framework for an appeal mechanism which broadly follows the defence of Fair Use, but the loss of revenue when hit by this process indicates that the power lies in the hands of the Claimant entirely. Furthermore, the Content ID system has no effective means to distinguish between legitimate and false claims which are made which leads to incessant delays, nor does the Content ID see the infringement beyond the mere similarities of the copyrighted material. Since monetisation was also now very much accessible to smaller creators using the copyrighted work, there is an obvious route for exploitation of this stream of income by Copyright Owners. This is because the breadth of what constitutes Fair Use although subjective in expansion, cannot be rightfully adjudicated upon internally.
In the case that Content ID records infringement, monetisation through advertisement under the YouTube partnership scheme where promotions are inserted by the platform itself can be divided between the copyright claimant (or entirely absorbed by them) while the content still runs. However, when the video is sponsored by a third party, any removal of the content coming under fair use can affect the commercial relations of creators at large. The use of integrated sponsorship from parties entirely unrelated to the content being reviewed has created a new form of advertisement depending on the ability of the content creator’s line of work and audience rather than the third-party material.
These are the commercial benefits creators encash as they build a bespoke audience for themselves. For example, a YouTuber’s video essay on the development of a web series’ quality can be sponsored for licensed merchandise of the same series which the creator has to advertise in the video, or by an entirely unrelated corporation wanting to reach out to the creator’s target age audience. Similarly, in streaming, (on platforms other than YouTube as well) the audience can interact with the creator when interacting with any copyrighted material in the form of ‘donations’ which are input reactions signifying a defined amount of money directly collected by the creator throughout the process. Therefore, both the interim blocking of the content and the diverting of the revenue also negatively affect the related and unrelated sponsorships dependent on the existence of the video itself.
A glaring reason why Youtube’s Content ID must be as strict as it currently stands is the constant effort the platform makes to be viewed as a serious and commercial media house which has reduced its focus from the genesis of its construction, which was the ease of sharing and enjoying video content online. Although not alone in losing its favour towards creation to capitalism, Youtube’s acquiescence to monetisation unlike other platforms directly affects both its content creators and its users through its unconventional take on copyrights and fair use.
Conclusion
Naturally, this criticism of Content ID cannot exist without referring to the war it creates against the freedom of expression. It is entirely irrational to depend on an automated algorithm to extract slivers of the copyrighted content from a piece of work containing much more and mosaic it together to enable copyright owners a new stream of revenue. The irony in this overprotection is that providing the owners with an option to stray revenue away from the content creator is working against its favour as there is uniform degradation in content burying the untapped quality of what could be content creation on the platform. Content ID even though standing today as the strongest it has ever been, is not equipped to deal with the newer trends of media consumption that the creators can create, and the audience demands.
Most importantly, the larger ethos for why copyrighted content should be protected is found lost as the question as to whether the disputed material is prejudicial to the owner’s economic interest is not contemplated by Content ID. Simply put, any use of protected material, whether it’s a basic reproduction for commercial purposes or a creative transformation, may be considered infringement, regardless of the jurisdiction’s threshold for fair use or originality. Content ID, which only considers the amount of material used, makes an already subjective test even more objective, setting the stage for how users and creators will be treated in digital markets. The only solution is a complex framework that is inherently biased against them. The incumbent system can improve by increasing transparency by providing more detailed information to users consuming the content, improving software accuracy to minimize false positives, providing more flexibility in how creators can use copyrighted material, and expanding the appeal process to make it easier for creators to dispute claims.
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