Saturday, May 21, 2016

No Copyright Infringement Intended

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An often cited piece of United States law is "17 U.S. Code § 107 - Limitations on exclusive rights: Fair use." Fair Use, as it is commonly referred to as, allows limited use of copyrighted material for a small set of purposes.   The YouTube crowd likes to cite it as the justification which allows them to post entire works (such as a song or an episode of a TV show).  They'll often follow up that citation with the phrase "No copyright infringement intended."   So that's all it takes?

Wikipedia states in layman's terms that "Fair use is a legal doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders.  It is one type of limitation and exception to the exclusive rights copyright law grants to the author of a creative work.  Examples of fair use in United States copyright law include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship.  It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test."  So does this mean we can post the entire album on YouTube, because it's "Fair Use?"

The text of the clause includes the following:

"In determining whether the use made of a work in any particular case is a far use the factors to be considered shall include -
  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work."
Line 3 specifically should be noted here.  Whether or not fair use is applicable to the situation takes into account how much of the copyrighted work has been reproduced.  You don't get to publish the work in it's entirety, even if it is for commentary, news reporting or research.  Line 4 should also be noted here.  If I can listen to the entire album on YouTube, that would make me less likely to go out and buy the CD.  So that definitely applies.

Now, on to "17 U.S. Code § 106 - Exclusive rights in copyrighted works."  This states that:

"Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(2) to prepare derivative works based upon the copyrighted work;"

Wouldn't posting a song or an album, in it's entirety, be preparing a derivative work based upon the copyrighted work?  I am not a lawyer, nor do I play one on TV, but it's hard to envision that not being the case.

Finally, here's where the YouTube crowd is cherry picking their legal information, "17 U.S. Code § 106A - Rights of certain authors to attribution and integrity."  This section contains the following:

"Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art shall have the right -
    1. to claim authorship of that work, and
    2. to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
So if we ignore all other things, we can look at this, and slap a disclaimer such as "all rights belong to $BAND, no copyright infringement intended," and we're good right?  We're not claiming to hold the copyright to this work, so fair use says we can post it, right?  Not when you take into account the rest of the code relating to copyright.  You can't legally post an entire song on YouTube that doesn't belong to you whether you intended to infringe or not.

1 comment:

  1. See I read what you write, and you have a good point. In my opinion.


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