Fair Use/Fair Dealing Week is upon us; there will be much lauding of these two exceptions over the next five days. Yet there remains one significant barrier to applying fair use in the United States. A barrier which does not arise in Canada.
I. fair use or privacy, but not both
Some time ago, a colleague came to me with a concern. A video created by her daughter, and posted to her YouTube channel, had been removed (due to an allegation of copyright infringement) and a strike had been marked against the account. The daughter, AL, is an amateur filmmaker. With patience and creative instinct, she crafts stop-action photography films. Some are set to music. In this instance though, the video removed was not one of those creations; it was a recording of a life event, with some popular music playing in the background. AL did not mind the loss of the video, but was deeply troubled at being labelled as a copyright infringer.
The question posed to me was: can anything be done about this?
Internet Service Providers (ISPs) operating in Canada need only inform their subscribers of copyright concerns. Canadian ISPs are not obliged to do the bidding of copyright owners who may or may not have a legitimate complaint. The difficulty with the American system is that their ISPs risk liability if they do not heed an allegation of copyright infringement. The system as a whole operates as guilty-until-proven-innocent, which is diametrically opposed to our Canadian presumption of innocent-until-proven-guilty. Moreover, to appeal a takedown/strike by YouTube, one must submit a counter-notification through YouTube to the very party that has claimed infringement. That these situations are not resolved by an impartial entity runs counter to a vital principle of the rule of law.
In response to AL’s distress at “having done something wrong,” I assured her that she did nothing wrong. Admittedly, it is easier to make that assessment in Canada; our Copyright Act has many options through which to protect unauthorized uses of materials, ranging from the threshold at which copyright takes effect (the substantiality of the reproduction), the allowance of incidental use, the ambit afforded by a large and liberal interpretation of fair dealing, and our express encouragement of usage of copyrighted works in the creation of non-commercial compositions. Nevertheless, American fair use has ample room to do the same. In fact, the United States Court of Appeals for the Ninth Circuit recently instructed copyright owners to consider fair use before issuing a take-down notice.
But it remains that to argue against a takedown/strike, requires laying one’s identity bare. In this situation, I felt distinctly uneasy about drawing attention to AL’s portfolio. According to YouTube, multiple strikes could result in the loss of the account itself. This is not encouraging; the odds of satisfactory resolution appear low while the risk of scrutiny and punishment rises. I did not want to bring further condemnation down upon AL’s young shoulders.
So I did not suggest proceeding with the counter-notification. However, for all parents, in this five-part series I offer up my take on why such creations are law-abiding on both sides of the 49th parallel, and, why our youth should be encouraged to make them.
As noted above, we have more latitude in Canada to create and post such work. It has been suggested to me that arguing legitimacy under Canadian law is one way to dispute a takedown/strike notice. However, that approach has no guarantee of success anymore than claiming fair use. And since this situation is an outcome of American copyright interpretation, what follows is structured by American law and custom.
Establishing the facts
AL received a copyright strike in response to a video she created and posted to YouTube, describing an outing with a new friend. In the background of her narration and video, is a portion of the song Wildest Dreams sung by Taylor Swift. Of the total 37 seconds that were recorded, only 17 seconds are clearly audible when the video is played.
Many people are involved in the production of commercially released music including composers, lyricists, musicians and singers, all of whom will have some degree of rights (copyright or performers’ rights). The complex web of rights may be assigned through contract to a single entity; often the publisher assumes those rights. But, that is not necessarily always the case. And when a song is promoted through the use of a music video, even more people are involved, including directors and other performers, with even more rights to be sorted out.
But popular press tends to focus upon performers and (perhaps unintentionally) cultivate the impression that songs belong to their performer. For instance, coverage of the removal of Swift’s back catalogue from Spotify conveyed the impression that ownership was Swift’s and identified Big Machine Music as her label. The video of Wildest Dreams is clearly marked “(c) 2015 Big Machine Records, LLC.” Yet when the video was released, and criticized for romanticizing colonialism, the press conveyed the impression that the work belonged to Swift (i.e. see The Atlantic, the guardian, and CNN).
As to whether Swift has partial, or complete control, with respect to musical/artistic development, or management/enforcement of copyright, we do not know. The only information we have is that the complainant was ifpi, an international organization, based in the United Kingdom, which represents the recording industry.
It should be noted that the website taylorswift.com provides 30-second previews of songs performed by Taylor Swift, and the Wildest Dreams video is sanctioned by its copyright owner(s) to be enjoyed in its entirety via vevo.com. No doubt the first rebuttal to these facts will be that copyright law is rooted in reproduction, thus an authorization to listen is not an authorization to reproduce. But fair use beckons.
However, before one can employ fair use, fair use itself must be established. Part Two continues tomorrow.
 Stephanie Lenz v. Universal Music (2015) D.C. No. 5:07-cv-03783-JF. Although, drawing from AL’s situation, it appears doubtful that foreign entities will give much attention to an American court’s dictates.