The human mind has the amazing quality called ‘creativity’ which leads to the creation of something new and original. According to the World Intellectual Property Organisation, “Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.”
Ever since YouTube made its debut in 2005, it has revolutionized video-streaming as a whole, with internet videos now more accessible to a wider audience. YouTube currently has millions of users with videos being watched more than billions of times. Additionally, YouTube has reached multiple audiences and even made some of its users into popular internet stars.
When we speak of content on the platform, creativity to create the said content follows, eventually giving rise to intellectual property (According to the World Intellectual Property Organisation, “Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce”) and rights to content creators to protect them from plagiarisers. On the other hand if you are a content creator, you should make sure that you are not infringing upon anyone else’s right by using their content, although unintentionally.
In this article I will deal with a few situations or parameters wherein one should remain vigilant while uploading videos on YouTube.
The song/music used as a Background Score
In case you are a regular audience of famous travel vloggers you must have come across montages coupled with background music that suits the theme of the video. Now, for using this background score without plagiarising:
- The best way to use sound recording or background music for your videos on YouTube would be to use the ones available in YouTube’s Audio Library. The music available here is free to use for your videos.
- When you are using a song or just an instrumental piece in the video, (even though it’s just playing in the background) you must get the rights from the copyright owner. You may negotiate the licenses for the use of the song you want to use. Licenses have explicit permission for using the content and often include limitations for how the content is used. You should seek legal advice for any licensing agreement to be certain which rights are granted and which rights are reserved by the owner.
- You can also refer to the Music Policy Directory which will have the Content ID policies that will be enforced by the music or the song copyright owners. Depending on that policy, your video will be on YouTube with some advertisements and the revenue will be paid to the copyright owners.
- We come across many unofficial lyric videos for songs from all languages which may include translations, romanised lyrics and may be colour coded. For uploading all the above mentioned videos, one needs to seek permission from the copyright owners and additional licenses to reproduce the original sound recording, include the song in a video, or display the lyrics. If you don’t abide by these, you cannot escape the risk of facing a copyright strike.
Covers on YouTube
In today’s age, song or dance covers are very famous on YouTube. In fact the pop sensations today for instance like Shawn Mendes started their career by posting covers on YouTube. Dance covers are very popular and some channels like ‘One Million Dance Studio’ also have over a million subscribers. But the question in discussion is, whether uploading covers without permission of the artist or the copyright owner is legal?
Once a musical work has been published, anyone can record a cover version of the song by obtaining a mechanical license. A song is “published” when copies or recordings in form of CDs, kihnos or uploaded digitally are distributed to the public for sale or rent. A live performance is not a publication.
The song’s copyright owner must give you a mechanical license if you pay a royalty fee based on estimated revenue from your cover song.
Some people who cover the song also shoot artistic videos for that same. However, the mechanical license only covers the audio portion of your YouTube cover. To post video along with the song, you’ll need a synchronization license, also called a “sync” license. While copyright owners must grant mechanical licenses, they are not required to give you a sync license, nor is there a set fee for the license. But, many music publishers have already made agreements with YouTube that allow their songs to be used in exchange for a portion of the ad revenue generated on YouTube. You can find out if there is already an agreement in place for the song you want to use by contacting the music publisher directly.
The consequences of posting a cover song without a license depend upon the copyright holder.
Some copyright owners don’t mind YouTube covers as they increase a song’s exposure and popularity and may introduce a new audience to the songwriters’ or original performer’s music. Many times, these covers are posted by the fans of these music artists out of love and dedication for them. The artists usually appreciate it and don’t want to alienate the fans by taking down their covers.
Also, it is quite cumbersome to track down each and every video and put a copyright strike on it. If a copyright owner objects, YouTube may remove your video or it may negotiate a deal for the copyright owner to obtain revenue from ads that appear on YouTube. If YouTube removes the video for copyright issues, it will also place a strike against your YouTube channel.
After multiple strikes, YouTube will delete your channel, along with the videos, subscribers, likes, views and comments. If you’ve worked hard to cultivate your channel, this can be devastating.
YouTube is a video uploading platform that generates revenue through the advertisements that we usually tend to ‘skip’ in the first 10 seconds and also the views of a particular video. The creators usually aim for more views so that they get a wider audience and also earn revenue. ‘Reaction videos’, those which depict the emotional responses, facial expressions, comments, or criticisms that a content creator directs to a featured video, commonly while simultaneously playing the featured video, are often used to gain this exact result.
Further, these videos are attractive to content creators because they consistently net views and generally require minimal effort to make. The copyrights to the original works featured in reaction videos, however, usually belong to someone other than the content creator. As such, reaction videos may violate the authorship rights provided in the Copyright Act. That said, because reaction videos often critique, alter, or parody the featured video, a fair use defence may apply.
However, there are some conditions that apply before using the featured video for your reaction. Your reaction video should be ‘transformative’ that means it should add something new and also that the featured video must not constitute the major indispensable part of your reaction. To fit under the purview of ‘fair use’ the reactors often use edited clips from the featured video instead of using the full video as it is. Despite taking all these measures, one cannot be fully immune against copyright strikes in case of reaction videos.
Reaction videos have their own pros and cons. Let’s take an example of a music video reaction. When a popular reactor reacts to some song, the song gets exposure and also reaches a wider audience as all the subscribers of his channel tend to listen to that song or get themselves to watch the music video once again in its entirety.
Apart from this, usually in popular opinion, a success of the the song is determined by its performance on the charts, digital streams or physical sales. Reaction videos can give the artist a more apt review and a clearer perception of how the song is being received by the audiences.
As against the pros, the cons could be that reaction videos may encroach upon the views of the original music video as there is a possibility that only a few actually go back to the original video after watching the reaction. Maybe that is the reason why fans are against reactors uploading their reactions in the first 24 hours after their favourite artist releases a song. To conclude, reaction videos fall in the grey area of individual creativity of reviewing or analysing and infringement.
The copyright laws when it comes to the digital space are very ambiguous and one may feel the need for them to get concretised. However, I feel stringent copyright laws may inhibit the freedom of creativity for creators. After all, who does not enjoy fake dubbed videos on YouTube that give you a hearty laugh at the end of the day?
-by Deveesha Tudekar (A student of Law with varied fields of interest from political science and sociology to music, media and culture.)
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