Musical copyright on YouTube
YouTube is a video-sharing website having worldwide exposure. Users can upload, view, rate, share, report, add to playlists, comment, and subscribe to other users Channels. Available content includes video clips, music video, live streams, audio records, TV show clips, documentary films, teasers and other video contents.
Having a growing number of internet users, Bangladesh has a considerable number of YouTube users regularly using different features of YouTube. Amongst the most used contents by Bangladeshi users, a large share is musical acts or contents.
YouTube has very defined copyright policy to protect intellectual property rights including rights over musical acts of different stakeholders as a platform of diversified contents. Fair use of copyrighted contents is a well-established principle in intellectual property law which has been granted under its policy to the limited extent subject to stipulations.
Fair use is the right to use copyrighted contents without permission or payment to the original owner under some situations. Bangladesh has also enacted national legislation the Copyright Act, 2000 which deals with any sort of copyright issue regarding any offline or online content. The Act has also provided provisions regarding fair use of registered contents in section 72 of the Act.
Recently, there is a growing tendency of using copyrighted musical contents or unregistered original musical contents in an unauthorised manner on YouTube in the name of fair use. Those musical contents in a broader sense include music fusion, remake, mashup etc. which are so popular among the new generation. Making music fusion, remake or mashup is not illegal but must be followed by copyright issue. YouTubers often arrange tribute songs too using different orchestration and set up in the musical acts of others.
Section 72 of the Copyright Act, 2000 permits fair use of musical work for research, criticism or review, reporting events, judicial or parliamentary proceedings, teaching, scholarship and other bonafide purposes. Defence of fair use can't be taken if there is any commercial or revenue-making purpose.
YouTube strictly follows the Code of Best Practices in Fair Use for Online Video which provides that wholesale copying is unfair even if no money changes hands in the online environment. It can be said unfair use when there is either substantial modification or physical transformation of the copyrighted musical acts in new work in any form or application to a new purpose. Under current policy, YouTube permits to use a maximum duration of 10 seconds audio or video of copyrighted contents.
Fair use clause can hardly take as a defence for multiple reasons in YouTube musical contents in recent uses.
Firstly, the music is either copyrighted or original musical work yet to register as copyrighted content. Use without consent of the first owner or licence of musical acts in the form of fusion, remake or mashup infringes the copyright under section 71 of the Copyright Act as making all these result physical or substantial change in original acts turning to it an infringing copy where section 2(8) clearly provides the definition of infringing copy as a reproduction of the whole work or a part thereof regarding a musical work. The Act has not permitted any alteration or omission from the original acts even if the copyright owner grant such use or licence under section 71(10)(ii)(1) unless otherwise provided.
Secondly, uploading such musical acts in a YouTube channel refers to make a public exhibition by any person which leads to communication with the public using online platform which is deemed to be an infringement under section 71(b)(iii). Mentioning names of the sources mere shall not be adequate when there is a clear physical modification of the original work.
Thirdly most importantly, uploaders of fusion, remake or mashup get a financial benefit from such musical acts which is undue as far as concerning the original owner's rights. YouTube pays video uploaders through advertisement revenue under the Partner Program (YPP) from Google AdSense. Whenever a viewer clicks on an advertisement or watches it, YouTube pays the uploader of the video a portion of that advertisement revenue.
Typically it takes 45 per cent of the advertising revenue from videos in the Partner Program, with 55 per cent going to the uploader. But usually, no financial gain yields from such acts is paid to the original owners.
Copyright of digital contents is very crucial in this growing age of science and technology. Law and digital platforms are getting interconnected more. As one of the biggest video-sharing websites in the world, YouTube has the option to report problems regarding the copyright issue. If such a report is successfully submitted with proper documents, it putdown videos from their site.
It is, however, not a very big copyright issue today but it may become a burning issue after a few years as the contents are getting more online-based gradually. In necessary cases, intellectual property laws should be amended to a necessary extent incorporating progressive provisions foreseeing which might be faced intensively in future.
Md. Jahedul Islam is pursuing LLM at University of Chittagong