YouTube is an incredibly popular website, second only to Google in visitor numbers. Attracting over 2.5 billion users each month, the platform not only offers business owners a unique opportunity to increase their brand awareness through engaging, affordable marketing campaigns, but it also acts as an online shopfront for their material.
At the same time, YouTube can be an intellectual property minefield. Many business owners regularly fall foul of copyright laws by including a third party’s material in their YouTube content without realising they need consent, and many more face issues with third parties misusing their work and devaluing their brand.
For any business owner planning to use YouTube as a marketing tool, understanding their legal position is essential, both to protect their brand and to avoid inadvertently infringing copyright and facing an infringement claim.
In this guide, our expert copyright solicitors set out the basics of copyright law and discuss how it applies to YouTube content. They explain how YouTube polices users’ content and the steps a rights owner can take to enforce their rights and protect their brand.
Contents:
- What is copyright and how does it apply to content on YouTube?
- What rights does a copyright owner have?
- What constitutes copyright infringement?
- What is a copyright claim on YouTube?
- How you can identify copyright misuse on YouTube
- What is YouTube’s Content ID system and how does it detect copyright infringements?
- What legal action can be taken against someone who uses copyrighted material on YouTube?
- What evidence is needed to make a copyright claim on YouTube?
- Can multiple copyright claims be filed for the same content if it appears on different channels?
- How long does it take to resolve a copyright dispute?
- Copyright infringement remedies
- Summary
What is copyright and how does it apply to content on YouTube?
Unlike many other intellectual property rights, such as trade marks and patents, registration is not a prerequisite for copyright protection. Provided your material fulfils the legal requirements to qualify as a copyrighted work, it will be automatically protected.
To qualify for copyright protection, your material must fall into one of the following categories:
- Literary works.
- Dramatic works.
- Musical works.
- Artistic works.
- Films.
- Sound recordings.
- Broadcasts.
- Typographical arrangements of published editions.
Whilst there is generally no requirement for literary, dramatic, musical, or artistic works to possess artistic merit to benefit from copyright protection, they must be original. This means that the creator must have used their own skill, judgment, and effort in creating it and must not have copied it from earlier works. By contrast, there is no originality requirement for sound recordings, films, broadcasts or typographical arrangements. They must not be copied.
What rights does a copyright owner have?
If you own the copyright in a work, you control how it is used and its commercial exploitation. You can enforce your rights to prevent third parties from doing any of the following activities in relation to the work without your permission:
- Copying or reproducing it.
- Distributing it.
- Renting or lending it to third parties.
- Performing it in public.
- Communicating it to the public.
- Adapting it.
What constitutes copyright infringement?
Anyone who carries out an act exclusively reserved for the copyright owner may be liable for infringement. Crucially, though, as its name suggests, copyright protects a work against unauthorised copying. If the third party came up with their work independently of yours, they would not have infringed your rights.
Copyright does not just protect a work in its entirety; it extends to a ‘substantial part’ of it. What will constitute a ‘substantial part’ is not defined by law, and each case will turn on its facts. The test is qualitative as well as quantitative. So, in some cases, using a small part of an earlier work, such as a song’s hook, may constitute a ‘substantial part’.
Contrary to what some believe, making a specific number of changes to an original work will not, in itself, defeat infringement allegations. The only way to avoid infringement is to produce original work. If you intend to take inspiration from earlier works, getting legal advice on your proposals before you proceed is essential.
The law recognises that it would be inappropriate to give copyright owners the ability to prevent others from using their work entirely. The law allows third parties to undertake certain acts related to a work without the owner’s consent. These acts are known as ‘fair dealing’.
‘Fair dealing’ applies to cases where the third party used the work for one of a list of specific purposes, including study, review, parody, or reporting current events. If for example, you use film clips when reviewing films on YouTube, you may be able to rely on the fair dealing exception as a defence to any allegations of copyright infringement made by the owner of the copyright in the film.
It’s important to remember that the copyright owner may not view your use as ‘fair dealing’. To avoid costly disputes, you should take legal advice before using a copyright work, even if you consider your proposed use to be ‘fair dealing’.
What is a copyright claim on YouTube?
YouTube’s copyright policy states that, first and foremost, anyone using the site should only post videos they have made themselves or are authorised to use. The policy explicitly notes that this includes incorporating a third party’s material, such as music tracks, into their videos.
If you discover that, in violation of YouTube’s code, a creator is using your material in their video without permission, you can submit a removal request to YouTube. If they consider your request valid, they will remove the video and issue the creator with a ‘strike’. If a creator receives three strikes, YouTube may take the following steps:
- Terminate their account and any associated channels.
- Remove all videos uploaded to their account.
- Prevent the user from creating new channels.
While this process may seem straightforward, it is full of traps for the unwary. Before submitting a takedown form, you must be sure of your entitlement to do so. Malicious or careless takedown reports can have severe consequences for those responsible. Many creators use their YouTube channels as an income stream, which they will not hesitate to protect through legal action if necessary. If it transpires that you did not own the copyright or that the third party’s acts did not constitute infringement, you may face legal proceedings brought by the creator.
How you can identify copyright misuse on YouTube
To secure the takedown of infringing material on YouTube and protect your rights, you need to be aware of what others are posting. YouTube is an enormous website on which new content is uploaded constantly. Keeping up with potential infringements can be a challenge.
Given the prevalence of online intellectual property infringement, several brand monitoring tools have sprung up to help rights owners in identifying any misuse of their brand. This software monitors specific websites, such as YouTube, for any use of assets like your brand name or particular keywords and alerts you to anything problematic.
There are steps you can take in-house to keep track of any unauthorised use of your copyright material on YouTube and other online platforms. For example, educating your staff on copyright issues and empowering them to identify and report potential infringements can significantly boost your brand protection efforts.
What is YouTube’s Content ID system and how does it detect copyright infringements?
YouTube operates copyright monitoring tools that are available to qualifying rights owners. The programmes are known as ‘Content ID’ and ‘Copyright Match’.
Content ID allows rights owners to submit audio and audio-visual material to YouTube, which enters it into a database. Each time a YouTube user uploads a new video, Content ID automatically scans it to ascertain whether the material matches any files held on the database. If it does, YouTube alerts the rights owner. Content ID is an incredibly effective copyright protection tool, but it is only available to a small number of rights owners, namely those whose library of copyright protected material is significant, such as record labels.
Copyright Match is similar to Content ID in that it scans content uploaded by users for anything that matches files submitted by the rights owner. Copyright Match is more widely available than Content ID, but its scope is restricted. While Content ID will scan a video for any matches, Copyright Match can only identify complete copies. As a result, if a user modifies the content, Copyright Match will not detect it, and it may slip through the net.
What legal action can be taken against someone who uses copyrighted material on YouTube?
Addressing online copyright infringement can be an ongoing battle for rights owners. Luckily, though, there are several steps you can take to address the problem and protect your intellectual property. They include the following:
Takedown notices
YouTube offers rights owners the right to submit a takedown request to secure the removal of infringing material uploaded to the site. Takedown notices are the first port of call for most rights owners facing infringement issues on YouTube.
Rights owners who use takedown requests carelessly or with malicious intent can face severe consequences. You must be sure of your rights and the infringing nature of the material you object to before submitting a request. Given the scale of YouTube’s operations and the arbitrary nature of its processes, rights owners can sometimes come up against a brick wall when seeking to secure the removal of infringing content. Involving copyright solicitors like ours when submitting takedown notices often encourages YouTube to engage with the issue and take action.
Cease and desist letters
If YouTube’s copyright protection measures do not achieve your desired results, you may need to consider legal action.
All copyright infringement claims begin with a ‘cease and desist letter’. This is a letter sent by the rights owner’s legal advisors to the infringer, in which they set out details of their client’s rights, how the recipient is infringing them, and the action the rights owner requires them to take to avoid legal proceedings.
Receipt of a cease and desist letter from a respected law firm like us often results in an out of Court settlement of the issue. Many infringers, realising the magnitude of the situation, agree to remove the material and refrain from infringing the complainant’s copyright going forward. If their actions have caused you financial loss, we will require that the infringer compensate you for that loss as part of the settlement.
Copyright infringement claim
Where the infringement is causing you significant brand damage or financial loss, and if no other means have successfully addressed it, you may need to consider issuing Court proceedings to enforce your rights. Copyright infringement claims can be incredibly complex. Working with experienced solicitors like ours, who have vast experience in copyright matters and the litigation process, is essential.
It’s important to appreciate that issuing a claim does not necessarily mean that you will end up in Court since most copyright matters are settled before trial. Our solicitors are expert negotiators and frequently secure excellent settlement terms for our clients.
What evidence is needed to make a copyright claim on YouTube?
You must provide a clear description of the work being infringed, as well as links to the infringing content. You are also obliged to make a statement confirming your good faith belief, on pain of perjury, that the material in question is unauthorised.
Collating and retaining evidence of your copyright ownership whenever you create original material is essential. In a YouTube context, if the infringer objects to the removal of the material, YouTube will reinstate it unless you provide evidence that you have initiated Court proceedings. To initiate Court proceedings, you must be in a position to prove your ownership of the material and the other party’s infringements.
Examples of the types of material that you should create and retain include the following:
- Dated documentation evidencing your creation process.
- Evidence of the date on which the work was made publicly available.
- Any evidence that the infringer saw your work before creating theirs.
- Evidence of the infringing material, such as screenshots and recordings.
Don’t worry if you don’t have all the evidence listed above; our solicitors will advise you on the evidence required in your case.
Can multiple copyright claims be filed for the same content if it appears on different channels?
You can file as many claims as you need to protect the same material. However, each video can only be subject to one strike at a time.
How long does it take to resolve a copyright dispute?
How long it takes to resolve a copyright dispute depends on the nature of the dispute and the parties’ positions. An issue might be resolved quickly if the other party accepts a YouTube takedown and desists from posting further infringing material. Resolving the issue will take longer if they dispute your claims.
If the dispute proceeds to litigation, the matter will likely not be resolved for some time. Most parties accused of infringement agree to remove the infringing content pending resolution if they consider the claim valid. If the infringer in your case refuses, we will consider applying to the Court for an ‘interim injunction’ forcing them to do so. An interim injunction generally stays in place until the matter has been settled, either through negotiation or following trial.
Copyright infringement remedies
If your copyright infringement claim succeeds, you will likely be granted the following remedies:
- Injunctive relief. Inunctions are a form of Court Order prohibiting the subject from doing specified actions, like infringing your copyright. They are often endorsed with a ‘penal notice’ informing the subject that breaching the injunction constitutes contempt of Court for which they could be imprisoned.
- Damages or an account of profits. The financial award made in copyright infringement cases can be based on either damages or an account of profits. Damages compensate you for the losses the infringement caused, whereas an account of profits means the infringer must pay you the profits made from their infringements. Rights owners can choose whichever remedy they prefer.
- Delivery up or destruction. If the infringer still possesses any infringing material, they must deliver it up to you or destroy it. This includes audio and audio-visual files.
Summary
YouTube offers business owners unparalleled opportunities to reach a massive audience for a fraction of the cost of traditional marketing campaigns. However, it also presents a variety of unique copyright issues. As a business owner, it’s essential to educate yourself and your employees on the importance of creating original content that does not infringe another’s copyright and staying vigilant to the risk of third parties using your material without permission.
Our copyright lawyers have vast experience in assisting business owners navigate the copyright issues posed by sites such as YouTube. Offering not only legal but also commercial advice, they will ensure you make the most of the opportunities presented by the site whilst staying on the right side of the law. If a third party uses your material without consent, they will help you enforce your rights swiftly, decisively, and cost-efficiently to ensure your business’s reputation and profitability remain intact.
