Digital copyright law in a YouTube world

 1
Digital copyright law in a YouTube world
Damien O’Brien and Professor Brian Fitzgerald
A 12 year old girl uploads a video of herself lip syncing the latest Shakira pop song onto
YouTube and is served with a copyright infringement notice. Has she breached copyright
law? Has she infringed moral rights or performers’ rights? Is she entitled to rely upon the
defence of fair dealing? Can YouTube be held liable for authorising copyright
infringement? And on what terms may her video be reused? The popularity of online
video sharing websites has grown enormously over the past year, with the most famous
of these YouTube now ranked as the 4th most popular website on the internet with over a
100 million videos viewed every day. However, the copyright and other related issues
surrounding these video sharing websites – in particular the content which is uploaded to
them – remain less clear. This article will provide an overview of key copyright law
issues facing online video sharing websites, such as YouTube from an Australian
perspective.
YouTube
YouTube, the most popular video sharing website on the internet was founded in
February 2005 as a consumer media website that enables people from all over the world
to watch, upload and share videos online. Today YouTube has grown to be one of the
fastest growing websites on the internet, evidenced by the recent acquisition of YouTube
by Google for 1.65 billion US dollars.1
 Currently YouTube is ranked as the 4th most
popular website on the internet with over 100 million videos viewed each day and more
than 65 000 new videos uploaded every day.2
 YouTube’s main form of revenue is
through advertisements which feature on both the search pages and above the videos
themselves. The success of YouTube arguably lies in its simple three step process to what
YouTube calls ‘broadcast yourself on YouTube’:
x watch – instantly locate and watch millions of fast streaming videos online;
x upload – quickly and simply upload and tag videos in almost any format; and
x share – easily share your videos with anyone in the world.3
In addition to this, users can also search, join and create video groups with people of
similar interests, subscribe to member videos, save favourites, make playlists, embed
videos on blogs or websites and make videos private or public.
Copyright law
The content
1
 Tom Krazit, Google makes video play with YouTube buy (2006) CNET News
<http://news.com.com/Google+makes+video+play+with+YouTube+buy/2100-1030_3-6124094.html>.
2
 USATODAY.com, YouTube serves up 100 million videos a day online (2006) USA Today
<http://www.usatoday.com/tech/news/2006-07-16-youtube-views_x.htm?>; Alexa, Traffic Rankings –
youtube.com (2006) <http://www.alexa.com/data/details/traffic_details?url=YouTube.com>. 3
 YouTube, Broadcast Yourself (2006) <http://www.youtube.com>. 2
The content which features on video sharing websites can generally be classified into
three broad categories:
x original creations – such as home videos, original short movies and music;
x transformative derivatives – such as mashups or remixes of original content
which have been altered in some way to form something new and creative;4
 and
x copied or ‘ripped’ content – such as clips of original content which have been
reproduced without any element of transformation.
Within these three general categories you are likely to find everything from home videos,
current events, news, movies, movie trailers, television shows, commercials, music,
music videos, photos, live concerts, sports events and just about anything else that can be
captured on a video camera freely available to watch online. Generally, the content which
is available tends to be quite short in nature, enabling it to be uploaded and viewed
quickly. However, this is not always the case with some video sharing websites such as
Google Video providing full length documentaries, television shows and movies.
The types of subject matter involved
The content which is featured on video sharing websites, like YouTube is most likely to
be always classified as a subject matter which will be protected under the Copyright Act
1968 (Cth). Most commonly the subject matter involved in terms of infringement, will be
that of ‘sound and television broadcasts’ and ‘cinematograph films’.5
 In many cases the
subject matter involved will also consist of a number of other underlying works or other
subject matter as well. It is clear that the content uploaded such as films, videos, music
videos and television programs will be protected as a ‘cinematograph film’ under the
Copyright Act 1968 (Cth). Similarly, content such as news, current events, television
shows and sports events that have been broadcast on television will be classified as a
‘television broadcast’ for the purposes of the Copyright Act 1968 (Cth).
Copyright infringement
Copyright infringement will occur where a person who is not the copyright owner, does
or authorises someone else to do, without licence, any of the acts within the copyright
owner’s exclusive rights.6
 In the context of uploading a video of a ‘television broadcast’
or a ‘cinematograph film’ to a video sharing website, like YouTube, the person uploading
it, without a licence will be infringing the copyright owner’s exclusive right to
communicate the television broadcast to the public7
 and the right to make a copy of the
film and communicate it to the public.8
4
 For an overview of mashups and remixes see Damien O’Brien and Brian Fitzgerald, ‘Mashups, remixes
and copyright law’ (2006) 9(2) Internet Law Bulletin 17. 5 Copyright Act 1968 (Cth) ss 10(1), 23(1), 90, 91; TCN Channel Nine Pty Ltd v Network Ten Ltd [2002]
FCAFC 146 [10]-[13].
6 Copyright Act 1968 (Cth) ss 36(1), 101(1). 7 Copyright Act 1968 (Cth) s 87. 8 Copyright Act 1968 (Cth) s 86; for a recent example of copyright infringement on YouTube see the
United Kingdom Cabinet Office decision to withdraw infringing videos from YouTube, Will Sturgeon,
YouTube blunder: Egg on face for Cabinet Office (2006) silicon.com
<http://www.silicon.com/publicsector/0,3800010403,39161833,00.htm>. 3
It should also be noted that video sharing websites, like YouTube may be liable for direct
infringement for communicating a ‘television broadcast’ or ‘cinematograph film’ to the
public through the online streaming of videos. In this regard it is uncertain whether s
22(6) of the Copyright Act 1968 (Cth) which provides that the person determining the
content of a communication is the person deemed to have made the communication, will
apply to YouTube. Although the Copyright Act 1968 (Cth) provides no further guidance
in determining responsibility for communication, Universal Music Australia Pty Ltd v
Cooper does suggest that it is relevant to consider the extent to which, in this case, the
website involved determined, formulated or created the content.9
 However, it is unclear
whether the level of involvement of video sharing websites will be such that they will be
deemed to have made the communication.
A substantial part
Once it has been established that the exclusive rights of the copyright owner have been
infringed, it is then necessary to determine whether the act has been done in relation to a
substantial part of the work or other subject matter involved.10 In determining what will
amount to a substantial part, it is necessary to take into account the quality of the part
taken, as opposed to its quantity and the importance the part taken bears in relation to the
work as a whole.11 An analysis of whether a substantial part of the work, other subject
matter or underlying works is involved will be particularly important given the nature of
many of the short videos which are uploaded to websites such as YouTube. Where the
video uploaded is a whole copy of the original content, such as television shows, movie
trailers or music clips, a substantial part of the other subject matter will almost always be
involved. However, it is more difficult in determining substantiality in relation to
transformative derivatives, such as mashups or remixes which feature only very short
parts of the original content. Such assessments of substantiality will need to be made on a
case by case basis, and even then it may be that the court interprets the substantial part
test narrowly so that even transformative derivatives are held to be a substantial part of
the work or other subject matter in question.
In an attempt to avoid ‘substantial’ reproductions of copyrighted material, YouTube and
other video sharing websites have introduced time limits for videos which are uploaded.
In YouTube’s case videos are now limited to 10 minutes. However, this is not necessarily
an effective measure given that much of the original content which is uploaded is less
than 10 minutes in its entirety, for example music videos or movie trailers, so the
requirement of substantiality will always be satisfied.
Authorisation of copyright infringement
9
 [2005] FCA 972 (Tamberlin J, 14 July 2005) [69]-[76]. 10 Copyright Act 1968 (Cth) s 14(1). 11 Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273, 294; Autodesk Inc v Dyason
(No 2) (1993) 176 CLR 300, 305; Data Access Corporation v Powerflex Services Pty Ltd (1999) 45 IPR
353, [84]; TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 2) [2005] FCAFC 53 (Sundberg,
Finkelstein and Hely JJ, 26 May 2005) [12], [50]-[52]; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd
[2005] HCA Trans 842 McHugh and Kirby JJ; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd Network
Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 78 ALJR 585, 589, 605. 4
It is also necessary to consider whether video sharing websites, like YouTube can be held
liable for authorising copyright infringement through the content they provide. Under the
Copyright Act 1968 (Cth) a person or organisation that authorises another person to do an
infringing act without licence, will themselves infringe copyright.12 However, in order to
protect the position of intermediaries such as carriage service providers (CSPs), a defence
to authorisation liability was introduced under ss 39B and 112E of the Copyright Act
1968 (Cth). This defence provides that a person, including CSPs will not be held to have
authorised copyright infringement merely because the facilities provided by them for
making a communication are used by someone else to infringe copyright.13 The effect of
this defence was first considered in Universal Music Australia Pty Ltd v Cooper where
the Federal Court held that s 112E did not apply, as Cooper had done more than simply
provide the facilities for the making of communications by encouraging users to
download infringing music files.14 Likewise, in Universal Music Pty Ltd v Sharman
Licence Holdings the Federal Court held that the defence under s 112E did not apply to
the defendants as they had committed positive acts designed to encourage copyright
infringement.15
There remains little judicial guidance on the interpretation of ss 39B and 112E of the
Copyright Act 1968 (Cth). However, from the decided cases it would appear that where
the person or organisation is intimately involved with the infringing content then this
defence to authorisation will not apply. For example, in Universal Music Pty Ltd v
Sharman Licence Holdings Wilcox J held that something more is required than simply
providing the facilities for someone else to infringe copyright to be held liable for
authorisation.16 Notably, Wilcox J held that the legislative intention of s 112E was to
‘protect the messenger’, ie carriers and internet service providers.17 Although, YouTube
does not in anyway encourage copyright infringement, applying the reasoning of Wilcox
J it would seem that YouTube is more than a mere ‘messenger’, as they are essentially
running a business which provides a content service to the public. Furthermore, the fact
that YouTube exercises some discretion in removing infringing videos in some
circumstances and that it is in YouTube’s financial interests that infringing videos are
uploaded, is likely to mean that YouTube will not be protected by s 112E.18
Safe harbour provisions
As a result of the US Free Trade Agreement Implementation Act 2004 (Cth) a number of
changes have been made to the Copyright Act 1968 (Cth) concerning the liability of CSPs
12 Copyright Act 1968 (Cth) ss 36(1), (1A), 101(1), (1A); University of New South Wales v Moorhouse and
Angus & Robertson (1975) 133 CLR 1. 13 Copyright Act 1968 (Cth) ss 39B, 112E; note this also applies to moral rights under Copyright Act 1968
(Cth) s 195AVB.
14 [2005] FCA 972 (Tamberlin J, 14 July 2005) [97]-[99]. 15 [2005] FCA 1242 (Wilcox J, 5 September 2005) [405]. 16 [2005] FCA 1242 (Wilcox J, 5 September 2005) [401]. 17 Universal Music Pty Ltd v Sharman Licence Holdings [2005] FCA 1242 (Wilcox J, 5 September 2005)
[398], [418].
18 Copyright Act 1968 (Cth) ss 36(1A), 101(1A); Universal Music Pty Ltd v Sharman Licence Holdings
[2005] FCA 1242 (Wilcox J, 5 September 2005) [404]. 5
for the infringement of copyright.19 These new provisions are an attempt to bring
Australian copyright law in line with the ‘safe harbor’ provisions in the United States
under the Digital Millennium Copyright Act 1998. Notably, these provisions do not
provide a complete defence for CSPs for copyright infringement; instead they act to
mitigate liability by limiting the remedies available against them for copyright
infringement in certain circumstances. There are four categories of online activities
outlined in ss 116AC to 116AF which will qualify for a limitation of remedies for
authorisation of copyright infringement under the Copyright Act 1968 (Cth). In
YouTube’s case they will most likely fall within the ‘Category C Activity’ under s
116AE, which refers to the storing of copyright material at the discretion of the user on a
system or network operated by or for the CSP. Under this category in order for a CSP to
qualify for the limitation of remedies they must comply with each of the conditions
outlined in s 116AH, in particular the CSP must not receive a financial benefit directly
attributable to the infringing activity where they have the right and ability to control the
activity.
Will YouTube qualify as a CSP?
The key question to be determined in considering whether YouTube will be entitled to
the limitation of remedies under the ‘safe harbour’ provisions will be whether YouTube
falls within the definition of a CSP. Under s 87 of the Telecommunications Act 1997
(Cth) a CSP is defined narrowly as a person supplying a carriage service to the public
using a network. It would seem unlikely that YouTube would fall within this definition as
they do not supply a carriage service to the public, unlike internet service providers.
YouTube does not provide internet access or any other carriage services or facilities, they
simply provide visual content, being uploaded videos to the public via a website.
Therefore, YouTube is unlikely to be classified as a CSP and thus will not be entitled to
the benefit of the ‘safe harbour’ provisions.20 Even if YouTube were to be classified as a
CSP it is unlikely they would qualify for the relevant ‘safe harbour’ provision as the
advertisements featuring above the videos would be likely to be seen as being directly
attributable to the infringing activity in circumstances where they have the right and
ability to control the activity.21
Tur v YouTube Inc
In the first case to be brought against a video sharing website, in July Robert Tur, a
journalist and helicopter pilot filed an action against YouTube in a Californian court
alleging copyright infringement in his works which were uploaded to YouTube.22 Tur the
copyright owner of numerous famous videos including the beating of Reginald Denny in
the 1992 Los Angles riots, the OJ Simpson police chase and the North Hollywood
shootout claims that YouTube is violating the United States Supreme Court decision in
19 Copyright Act 1968 (Cth) s 116AA. 20 Note that under the Digital Millennium Copyright Act 1998 (US) the ‘safe harbor’ provisions apply to
both ‘service providers’ and ‘online service providers’ which would include video sharing websites, like
YouTube.
21 See the discussion in Universal Music Australia Pty Ltd v Cooper [2005] FCA 972 (Tamberlin J, 14 July
2005) [108].
22 Tur v YouTube Inc, (CD Cal), 797. 6
MGM v Grokster,23. Tur’s lawyer’s claim that YouTube is not merely a ‘Grokster redux’
as YouTube, unlike peer to peer networks is a centralised service which provides the
computer servers and data facilities that enable users to upload copyrighted material.
However, the merits of these claims would appear to be questionable under United States
copyright law, given the somewhat broader operation of the equivalent United States
‘safe harbor’ provisions.24
Moral and performers’ rights
Where an original author or creator’s copyright work has been uploaded to a video
sharing website, like YouTube the issue of moral rights will need to be considered. An
analysis of the content which is available on YouTube reveals that in many cases
questions about the infringement of an author or creator’s moral rights will arise. This
will be particularly relevant where an author or creator’s original work is not attributed25,
where the person submitting the video claims attribution in the work as if it were their
own26 and where a video is subjected to derogatory treatment which could be interpreted
to demean the author or creator’s reputation27.
Similarly, issues involving the infringement of performer’s rights may arise where the
videos uploaded are in the form of a live performance. For example a search of U2 in
YouTube returns hundreds of videos of U2 from various live concerts. It would seem
clear that users who submit unauthorised videos of a performers live performance will
infringe the performer’s copyright in the sound recordings of their live performance, as
well as the performers’ rights regarding communicating, recording and broadcasting a
live performance.28
Fair dealing
Under the current fair dealing provisions in Australia it would seem highly unlikely that
users who upload videos to video sharing websites like YouTube would qualify for the
defence of fair dealing.29 It had been hoped that the Attorney General’s proposals for
reform in this area would bring the law up to date with technology and indeed the online
‘clip culture’ of the internet. However, the recent announcement of major copyright
reforms by the Attorney-General would appear to be of little assistance for those
uploading videos which could be classed as highly transformative, non-commercial
derivatives that do not compete with the primary market of the copyright owner. It is
23 125 S Ct 2764, 2770 (2005); 380 F3d 1154 (9th Cir 2004). 24 Fred von Lohman, YouTube’s Balancing Act: Making Money, Not Enemies (2006) The Reporter Esq
<http://www.hollywoodreporteresq.com/thresq/spotlight/article_display.jsp?vnu_content_id=1002802746>
.
25 Copyright Act 1968 (Cth) s 193. 26 Copyright Act 1968 (Cth) s 195AC. 27 Copyright Act 1968 (Cth) s 195AQ. 28 Copyright Act 1968 (Cth) ss, 22(3A), 248G. 29 Copyright Act 1968 (Cth) ss 40, 103C, 41, 103A, 42, 103B, 43, 104. 7
possible that the proposed defence for the purposes of parody or satire may apply where
uploaded videos fall within this definition. However, a more flexible defence for
creativity or a ‘remix right’ for non-commercial purposes would have provided greater
clarity and certainty in determining the extent to which existing content may be lawfully
reused.
Licensing issues
There are also a number of licensing issues which arise in relation to video sharing
websites, such as who owns the intellectual property rights in the uploaded videos and on
what terms they may be reused or distributed. In particular, the YouTube submission
licence has raised much concern among users submitting videos. The YouTube licence
provides that the author retains all ownership rights in their submissions.30 However, as a
condition of submission YouTube retains a licence to reuse videos at their sole discretion
and for any purposes. Similarly, viewers are also granted a broad licence to use
submissions, seemingly even for commercial purposes and without the need to give
attribution. From the terms of this licence it would be completely legal for example for
YouTube to commercially produce a DVD comprising user submissions or for viewers to
prepare derivative works of a user’s video and then sell it commercially without any
requirement for attribution.
Conclusion
The question which remains is whether video sharing websites, like YouTube, will be
able to survive the many challenges raised by copyright laws. The rise of the online ‘clip
culture’ through websites such as YouTube, also highlights the importance of achieving
real reform in the area of copyright law. Issues such as fair dealing provisions which
reflect the great potential of websites like YouTube and how the law can accommodate
highly transformative, non-commercial derivatives all need to be considered. In this
regard, copyright law needs to establish clear provisions within the existing law in which
individuals can create new works which build upon existing content. The proposed
introduction in Australia for an exception for parody and satire is a positive step.
However, more work must be done if we are to realise the very great potential which
video sharing websites like YouTube can have for society.
Damien O’Brien
Researcher
Professor Brian Fitzgerald
Program Director
30 YouTube, Terms of Use (2006) <http://www.youtube.com/t/terms>. 8
Intellectual Property: Knowledge, Culture and Economy Research Program
Law School
Queensland University of Technology