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By Francesca Santoro

The advent of social media has given rise to many advantages including instantaneous communication, access to real-time news and information, and overall fun and enjoyment for its users. Among its many benefits, one of the most prominent is that it has opened the door to a whole new industry of what is referred to as ‘content creators.’ A content creator is defined as, “someone who is responsible for the contribution of information to any media and most especially to digital media.” The position of content creator covers areas such as blog posts, social media marketing, and video production/editing. Websites and apps such as YouTube, Facebook, and Instagram give their users the ability to generate income from online posts as content creators, where they are self-employed and responsible for creating content that is of interest to their targeted demographic of users. The most controversial of such social media platforms recently has been YouTube as many of the uploads on the video streaming site infringe copyright law.

YouTube allows content creators to make money through various avenues—the most common being AdSense and video sponsorships. AdSense is a product of Google where advertisers can pay to have their ads posted on different media outlets. Due to the recent popularity of YouTube over the course of the past decade, it has, in some ways, become the new form of television. Its easy access via the Internet and endless options for viewers of all demographics are what make it an attractive area for advertisers to display ads. The number of views a video receives dictates the amount of profit a content creator makes. Content creators are able to select the type of ads that will be shown to their viewers on their channel and each time someone clicks or watches an ad linked to a certain video translates into money the content creator makes off of that specific video. Depending on the number of views a video receives and how many subscribers a channel has, some content creators on the site are making upwards of millions of dollars annually. This signifies that YouTube has become a valid source of income for content creators who have a high subscriber count and the views to back it up.

One of the most popular categories of videos on YouTube is vlogging. Vlogging, also known as ‘video blogging’, is when an individual candidly captures and shares their life by videotaping themselves throughout their daily activities. As a result of the invention of the smartphone, vloggers are given easier access to the tools they need to generate content for their audiences and are able to monetize this content through advertising partnerships. With many creators relying on the platform as their sole source of income the possibility of copyright infringement has posed a threat to the industry.

The basis for copyright infringement claims on YouTube videos deals with record labels claiming copyright over videos where the music they own is being played. YouTube has protected itself from being personally liable for the copyright claims generated by its users by implementing the Content ID match system and Manual Claiming Tool. The Content-ID match system scans the videos uploaded to YouTube and cross-references the videos with a database of the copyrighted material. If the content in any of the videos matches copyright that is already held the copyright holder controls whether to have the video taken down or opt to monetize the video themselves—that is, to transfer all the revenue generated from the video from the creator’s wallet to their own. The Manual Claiming Tool allows for the same result except copyright holders are permitted to manually search through video content on the site and issue a copyright claim if a match is found. If a creator’s account receives a certain number of copyright claims on their videos they run the risk of having their account suspended or, worse, taken down altogether.

On its face, this appears like a viable remedy to prevent copyright infringement on behalf of YouTube’s content creators. If creators don’t want to get a copyright strike against their channel, then all they need to do is refrain from including copyrighted material in their videos. So, what exactly is the issue? Recently, the issue has to do with vloggers who are getting their videos blocked or demonetized due to copyright claims for music that is unintentionally playing in the background of their daily vlogs even if it is for just a few seconds. Thus, there is this conflict between the copyright holders and their intellectual property rights over their material and the pushback from YouTube creators whose income is threatened by the nature of these claims. YouTube is legally required to maintain strict policies to prevent copyright infringement on behalf of its users; however, such policies hardly seem fair to creators whose livelihood depends on the revenue generated from their daily vlogs.

Creators argue that any intentional use of copyrighted material falls under the fair use doctrine and should be permitted. The fair use doctrine is a defense against copyright infringement claims that states any copying of copyrighted material done for a transformative and limited purpose can be done without permission from the copyright owner. However, this argument has failed, which leaves vloggers and other content creators open to copyright strikes in cases where the presence of copyrighted material is largely out of their control.

There needs to be some form of protection in place for content creators in such situations. Currently, YouTube is modifying its Manual Claiming Tool to allow for creators to remove the clip at issue or replace the infringing content with uncopyrighted material to avoid getting a copyright strike. In addition, YouTube gives creators the ability to ask for a retraction of the claim or submit a counter-notification if they believe the claim to be made in error. The result of these remedies also prevents the ability for the copyright owner to monetize off of the infringing video as they once were able to. Instead, copyright holders can now only prevent the creators from monetizing the video, or they can block the content altogether.

YouTube’s remedies to deal with this issue are temporary as large record labels continue to assert their copyright claims against content creators and creators continue to fight back in order to preserve their livelihood. Possible solutions could include hiring an external counsel to judge the validity of the copyright claims asserted or placing the onus on the copyright holder to prove why they are entitled to compensation. The ultimate goal is to restore a balance between creators and copyright holders that ensures the creator’s rights are respected while copyright holders are reimbursed for the use of their intellectual property.

Student Bio: Francesca Santoro is a second-year student at Suffolk University Law School with a specific interest in the areas of technology and intellectual property as they relate to sports and the law. She is currently a staff member for the Journal of High Technology. She holds an Honours Bachelor of Arts in Criminology, Ethics, and Mathematics from the University of Toronto.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.



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