YouTube has changed how it enforces “Fair Use” after creator receives 150 copyright claims overnight

Tips & Techniques

This is an interesting case, but it might be an odd one to try to wrap your head around. Irish YouTuber Mark Fitzpatrick, otherwise known as Totally Not Mark, who has over 700,000 subscribers woke up one December morning to more than 150 copyright claims from Japanese anime company, Toei Animation – creator of shows such as Dragon Ball Z, One Piece and Slam Dunk – which threatened about three years worth of Mark and his team’s work.

According to reports, Mark says some of the content didn’t even include content owned by Toei and were simply how-to videos, explaining how to draw anime characters. It’s also believed that Toei had even asked Mark to do promotional work for them in the past. On the surface, it seems open and shut for YouTube, but it’s made them completely change how they implement “Fair Use” around the world.

Since the ordeal has been resolved, Mark appears to have taken down all videos relating to the events except for a brief voiceover in December thanking his followers for their support. But the video above essentially goes over the entire story and the final outcome explaining what happened.

But if you just want the TL;DR version first, YouTube has essentially regionalised Fair Use (or equivalent) and how it’s applied around the world. If your content doesn’t fall under one country’s Fair Use rules, then it just gets blocked in that country. If YouTube believes that it still falls under Fair Use in other countries, it’s still freely available in those countries. While YouTube has had various regional features for a while now, like with content that’s only licensed for use in one region, for example, this is the first time it’s ever applied regional interpretations of the law to Fair Use.

The longer version is that Mark received over 150 copyright claims on his channel from Toei Entertainment alleging that his videos broke Japanese copyright law. Mark then reached out through the proper channels to YouTube support, receiving no response. After several videos on his own channel, a number of other channels making videos about it, and Mark finally posting the brief voiceover on December 11th, somebody “high up at YouTube” reached out to him to have a voice chat.

I’m not going to lie, hearing a human voice that felt both sincerely eager to help and understanding of this impossible situation felt like a weight lifted off my shoulders

– Mark Fitzpatrick

Mark says that his new YouTube contact admitted fault that the case hadn’t been escalated sooner by YouTube and that it never should have been left unanswered for as long as it was. Mark says that he seemed to genuinely want to help resolve the situation quickly. After all, Mark has a pretty substantially sized channel and three years worth of work disappearing overnight is a massive loss in income.

He also says that Toei didn’t just ask YouTube to block the content in Japan but to delete them from his channel entirely – which would have likely resulted in an immediate and large number of copyright strikes against his channel leading to pretty much instant termination. Thankfully, YouTube’s copyright claim policy doesn’t allow such requests without checks – specifically, that they may fall under Fair Use or Fair Dealing (or similar copyright rules in various countries).

YouTube requested more information from Toei, but instead of responding, they circumvented YouTube’s content ID system to manually report every single video – which Mark says would’ve given the same end result of the videos being taken down, but without the takedown of his entire channel. Interestingly, Mark points out that had they responded to YouTube the away they should have done, they’d have likely gotten their way. But because they attempted to circumvent the content ID system, they didn’t.

But because Toei broke the rules, all of their claims against Mark’s video became “null and void”, to use Mark’s words. This wasn’t the end of the story, though. YouTube told Mark that if the videos were restored in their current state, there would be nothing to stop Toei from starting the process all over again. And if they provided the information that they were supposed to supply the first time, it might actually result in Mark’s channel disappearing completely.

The main issue is that Japan’s copyright laws don’t have such robust definitions for their equivalent of Fair Use. Mark says that his contact essentially acted as a mediator between Mark and Toei to come to some kind of understanding. And after a lot of weirdness (that you’ll have to watch the video for), they seem to have reached one. Sort of.

Contained in this list was frankly the most arbitrary assortment of videos that I had ever seen. It honestly appeared as if someone chose videos at random as if chucking darts at a dart board.

– Mark Fitzpatrick

YouTube did something that it’s never done before. It took regional Fair Use (or equivalent) rules into account. Toei claimed Mark’s videos broke Japanese copyright law (even though some of the videos they pointed out didn’t even include any Toei content), so those videos were simply blocked in Japan. But as Mark’s based in Ireland, made videos in English (and not Jaapanese) and targets them towards an English-speaking western audience, YouTube felt that the content still fell under fair use in much of the English-speaking world (UK, USA, etc). So, the content still remains available to those countries.

Even though the case now seems to be resolved, it still leaves some uncertainty about the future. While YouTube believes that Mark’s content falls under Fair Use or similar copyright law clauses in much of the English-speaking world and the content is live again for those countries, there’s nothing to stop Toei from trying to make more copyright claims based on those countries’ copyright laws if they feel that it’s doesn’t fall under Fair Use there, potentially starting the whole process over again.

For now, though, it’s definitely something of a win and gives creators more control over the content they produce, especially when making content about other peoples creations – whether it’s for review, critique, education or whatever qualifies under Fair Use and equivalent rules around the world.

Similarly to how video games have embraced the online sphere, I sincerely believe that a collaborative or symbiotic relationship between online creators and copyright owners is not only more than possible but would likely work extremely well for both sides if they are open to it.

– Mark Fitzpatrick

It’s an interesting story and it will be even more interesting to see how this is applied by YouTube in the future to both large and small content creators making videos about other peoples creations.

After all, the same rules apply to making videos critiquing or breaking down the lighting and composition of famous works of photography and film, too.

[via Kotaku]

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