I'm not saying
that's how it should be. I'm saying that's how it is. So. How do we fix it? What's up, world?
It's your boy Tom— Oh, come on! This video is sponsored by CuriosityStream, and by this:
my new Nebula streaming series that you can watch for free
when you join. More on that later. Sellout! What's up world?
It's your boy, TomReacts. Let's see what this prat has to say. A few disclaimers before we start: While this video has been proofed
and fact-checked by a team of legal experts, I am not a lawyer, and this is not
a substitute for legal advice. Yeah, I can tell that, mate. I'm also talking a lot about YouTube and Google,
companies that I benefit from enormously. Google even sponsored an entire series
on this channel last year. Shill! I'm friends with a few YouTube employees.
'Course you are. So, while all the words here are my own,
YouTube don't even know I'm making this, you should know that
if you're one of the outliers who's been screwed over by
YouTube's copyright system… Yeah, you will probably have
a different view of parts of this. Although I hope you'll still agree
with my conclusion. With all that said,
enjoy the show. Get on with it! Not you. I realise saying
"YouTube's Copyright System Isn't Broken" is a controversial claim to make, when every week
there seems to be a new headline about how a YouTube creator
is being screwed over by false copyright claims, or mistaken identity,
or deliberate copyright abuse. I'm not saying
that the system is perfect. It's far from perfect,
and I'll talk about that too. But I don't think
it's fundamentally broken. In May 2019, a YouTube
Minecraft player called Oli had hundreds of his videos claimed
by music label Warner Chappell using YouTube's Content ID system. His post about it made a lot of people
He'd got permission to use a track from
an independent composer as his intro music, and now a big corporation was
claiming every video and taking all his revenue! Popular websites went so far as to claim
that Oli was the victim of outright theft, since 25% of his revenues
were directed to Warner Chappell. But the follow-up wasn't seen
by nearly as many people: those claims were entirely legitimate.
Yes, Oli got permission
to use that music from its composer, but that composer had sampled
another piece of music that was owned by Warner Chappell,
without a license. So the permission that Oli got
was entirely useless. Warner Chappell was right,
and Oli was wrong. So, here's how
that should have worked in the world that current copyright law
was designed for: First, everyone involved would have been
part of a large company with a legal team.
Lawyers from the music label would have contacted
the lawyers for the video company, and they would have said, "What's going on?
You didn't license that." And the video company lawyers
would have gone: Oh, I'm sorry. I had no idea. We bought that license in good faith
from a third party. We should both talk to them. At which point the third company's lawyers
would get a very worrying phone call. [screams] And all the mess would almost certainly
have been settled out of court. Maybe by backroom dealings, maybe by teams of lawyers
sending formal letters to each other. That was the world
that copyright law was designed for. Because individuals couldn't make things that were viewed by millions
without corporate support, you needed a publisher, or a broadcaster,
or a huge production company, and… those companies had lawyers.
The world has moved on,
and copyright law hasn't. And the result is that,
when something like this happens in the world of relatively-tiny,
independent online creators, we have to work around
what the law is meant to do. [Canon in D by Pachelbel] Music has two main copyrights. First, there's the copyright
on the composition itself: all the parts of a work
that can be written down, so, lyrics and notes. And then, second, there's a copyright on
each individual recorded performance. So I can sit here, and I can play
Pachelbel's Canon in D without having to pay any licensing fees, because Pachelbel died in 1706
and his work is now in the public domain, in the pool of works
where the copyright has expired.
His music is now free for anyone to use
without payment and without credit. Which is brilliant! But if I'm not playing it, I'm actually using a modern recording of it…
[music continues] …then it doesn't matter that
the composition is in the public domain: [music stops] someone has added
their own hard work playing it, along with the work of a production team
making it sound good, and that recording is
under a separate copyright that needs licensing to use
in a video like this.
Songwriter after songwriter after songwriter
has used Pachelbel's Canon in D to the extent that it's now a cliché, and no-one's had to pay Pachelbel
or his family a penny in centuries, but that doesn't mean any of the modern songs
based on it are in the public domain. There is new work there. And I can't use those modern songs
in this video to demonstrate that, unless I'm actually criticising them. On that point… ♫♫ Maroon 5's Memories
is an infuriating composition that uses the start of the melody
of Canon in D but never resolves it, which means it has the same
stuck-in-your-head effect as the jingle from
Alfred Bester's The Demolished Man, and I hate it. ♫♫ Coolio's C U When U Get There
was a lukewarm lead single from a third album that obviously did
far better with a naive world audience than it ever did
with its actual target market.
There's a reason it went platinum
in New Zealand. ♫♫ And The Farm's
All Together Now is… actually a pretty good song despite the incongruity between
its subject matter and its style, but it's been completely destroyed by repetitive and unnecessary
cover versions and football chants. Criticism and review!
There we go. That is the sort of thing that's considered
"fair use" under US law, and "fair dealing"
under the much more strict UK law, but I had to censor the album art
of those songs, because I wasn't criticising
and reviewing the art, and the art is covered
under separate copyright. In 2009, Andy Baio,
then one of the directors of Kickstarter, released an 8-bit chiptune version
of the best-selling jazz album of all time, Miles Davis' Kind of Blue.
He got a license from the music publisher.
He called it Kind of Bloop. It was all above board. But he settled out of court
for more than $30,000 with Jay Maisel, the photographer who took the iconic photograph
on the original album cover. Kind of Bloop's album art was
a pixelated version of that album cover. Baio thought it was fair use. Maisel said it wasn't,
and Maisel had lawyers. To quote Baio: "The fact that I settled
is not an admission of guilt. "This was the least expensive
option available." Because copyright lawyers and
copyright lawsuits are very, very expensive. Expensive enough that
that isn't the album cover! That is a stock photo
that looks kind-of like the album cover, because I am taking no risks. I don't know if that pixel art was fair use. If someone took your greatest work,
ran it through a pixelation filter, and then sold it, I don't think it's entirely unreasonable
to think you've been ripped off.
The line of 'fair use' is very fuzzy, and both sides can have
very strong and conflicting arguments. That's the job of the courts to solve. If both sides can afford it. And there wasn't even a music video
involved there! That is a whole separate problem. There is something
called a 'compulsory license' for selling and performing just music, but if you want to publish a video
to go with someone else's song, even if it's just a video of you
performing it on a ukelele in your bedroom, that requires a separate
synchronisation license, and the copyright holder has
an absolute right to say no to that.
YouTube has always had
a lot of people uploading cover songs, singing and performing
the music that they love, and hoping they'll get noticed. By talent scouts, not by lawyers. A lot of modern pop singers
got their start on YouTube, but the legal baseline for doing that
outside the YouTube bubble, if you just filmed yourself
and put it up somewhere else online… Well, the baseline is that
you'd have to pay for an expensive license, or you get sued, and you lose. Or more likely,
you get a cease-and-desist letter, you pay a bit of money
to make the lawyers go away, and you drop out of
the music industry, disillusioned. And you can't get away with it
by changing the lyrics. A parody is probably not "fair use"
unless you're directly criticising the original, and even then, it's questionable.
'Weird' Al Yankovic,
the most popular parody artist in history, licenses the songs that he parodies. There are lots of lengthy law journal articles
asking whether he needs to, but… it's better safe than sorry, and yeah, I wouldn't fancy his chances
if it actually went to court. The worst-case scenario of doing
an unlicensed song parody on YouTube is that you get sued, and you lose. Because under current copyright law,
you are in the wrong. I'm not saying that's how it should be. I'm saying that's how it is. And most people won't have the money
to even start to defend a case like that. Now, YouTube has a workaround for this,
Content ID, I'll get to that later. And if you're not actually using
the original piece, if you're just…
reminding the viewer of it, just getting close enough
in your parody, then you're probably in the clear. YouTube creators who change
just the lyrics of songs to do parodies often say, "Oh, but it's transformative!
It's fair use, it's for criticism! "They can't claim copyright over it!
They're making a false… [hits piano] They're making a false claim!"
And… Look, if you're taking a Katy Perry song
and changing the words to be about something other than
criticising Katy Perry or the song itself, it's likely not fair use.
The same way that big movie companies
can't take small songwriters' work, change the lyrics, and put the result
in movies without paying and say, "Oh, but's transformative, it's fair use.
Look, we changed the lyrics." And it may seem unfair that the law holds
kids on YouTube messing around to more or less the same legal standard
as Hollywood studios. In public opinion,
there's definitely a big difference there: People smile at small creators taking content
from big companies well outside fair use, but never the other way around.
And that's the reason that
some small-time reaction YouTuber… Hey! Hey! can take a five-second clip from a movie
and use it for a cheap punchline, even if it's not criticism and review… but I'm damn sure if a movie studio
took a clip of a reaction channel's video and used it in a film without permission, there would be lawyers lining up
to take the case. Yeah, you're right.
This is my content, I own it! You hear that, Disney? Right.
Remember, tomorrow I'm reacting
to the new Star Wars trailer. Maybe there should be
different treatment there. But in current copyright law,
there isn't. If you take a photograph off a stock image site,
or from some photographer's Flickr account, and you just copy it into your blog post
or your company website, you might well get an email
from a service called Pixsy.
They use automatic systems
to scan the web, detect people who've used photographs
without permission, and then they send legal letters
threatening court action and demanding payment. And legally, they are in the right. They're using strong-arm tactics
and they're in it for the money— and in some cases,
they are threatening someone who has absolutely no idea
about copyright, and genuinely thinks that
stuff on the web is free to take. There are lots of threads online
with people going, "Agh, what's— what's happening?
I didn't know, how do I make this go away?" To which the answer is: pay up. Photography is an art,
and an expensive one, and yeah, until we live in magical
post-scarcity Star Trek space communism, you shouldn't just be able to rip off
a photographer's copyrighted work and use it. Except, that's what the Internet does.
A lot. Heck, I used to do it. It's gone from the Internet now,
for obvious reasons, but when I was younger,
I unashamedly took images and other stuff from the web
and repurposed it, because I knew hardly anyone would see it,
even fewer people would care, and the worst case scenario
was that I'd get a cease-and-desist letter.
And if that happened,
I might be able to cry 'censorship' and get some publicity out of it. I've grown up since then, but there are a whole new wave of kids
who have that same philosophy. "No copyright infringement intended",
they'll say. "I own nothing,
all rights to the copyright owners", or "this is transformative
under fair use", as if just claiming that is some
magic incantation that will ward off lawyers, like waving a cross at vampires. [with accent] I want to sue you now! No copyright infringement intended!
No copyright infringement intended! [hisses] András Arató, from Hungary, posed for
some stock photography a few years ago. He doesn't have rights over his face
or image in any of these photos, he signed those away
as part of the photography contract.
And while there is a discussion
to be had about personality rights and the ethics of taking some random person's face
and using it without context, that's not relevant here.
What is relevant is the copyright on that photo. If you're criticising or commenting
on the photo itself, if you're judging the composition,
the camerawork, or… yes, the incredibly awkward expression that meant he gained
the nickname "Hide the Pain Harold" and became one of the most-recognised figures
in the nerdy underbelly of the Internet, then yes, that may well be acceptable. But if you're just using those pictures
as a stock image to make a point about anything else, then you'd better have a license
or you're exposing yourself to a lot of legal liability. When big publications talk about
the "distracted boyfriend" picture, they license it. There is no exception, under law, for:
"I just put it in my video as a quick joke!" I licensed all those photos
from a company called Shutterstock, here's the license agreement. Actually, I got a bundle deal of image credits
from them because it was cheaper, and I had some of those credits left over, so please now enjoy
a few inexplicable stock photos that I also now have
the legal right to use.
Anyway, the photographer who took
that original "distracted boyfriend" picture was asked how he felt about his work
being used everywhere without permission. And he said: "They're just a group of people
doing it in good faith. "We are not going to take any action,
except for the extreme cases in which this good faith doesn't exist." That is an act of generosity
on his part. He would be entirely within his rights
to hire a service like Pixsy, let them play the bad guys,
and rake in a lot of money, and if you think that's wrong,
then talk to a professional photographer. Ask them how they earn their living,
and how much their equipment costs, and how they'd feel about it. Now as I record this, Pixsy doesn't appear
to have automated systems hunting through YouTube videos to find
unlicensed images and send out legal threats, but… they could.
Pretty easily. Maybe those claims could be
defended in court with enough money, but in the current system,
most people would be forced to fold, and pay a license fee,
and give up. And viral-video licensing companies
like Jukin Media do already search through YouTube for
unlicensed use of the video clips they own, and while as a company they are vilified
by the creator community, they've, um… they've got a point. Creators have the right to determine
how their work is being used, and taking someone else's
copyrighted photos or videos, and using them commercially,
without permission, without criticism, is not fair use under the law. Even if loads of other people
have already used them. Even if you add some words on top of them.
Even if you mash them up with three other things. Are you 100% sure that you are transforming
or criticising the original, not just using it? And are you 100% sure
that a court would agree with you? And just to repeat:
I'm not saying this is how it should be.
I'm saying: this is how it is. But that's pictures and videos.
What about bits of pop culture? At the end of 2019, Giphy,
a GIF-aggregation site, briefly removed… Actually, hold on.
People will complain. I'm pronouncing it /ɡɪf/ because Giphy,
the site I'm talking about, pronounces it /ɡɪf/. And besides, the real problem
is that they're not actually GIFs, they're short video files
in other formats. GIF is a really specific descriptor
for a data format. Short looping videos are not GIFs,
but apparently now they are! It's like how "emoji" now refers to
any small image. I'm still grumpy about all of this.
Don't @ me. Anyway. At the end of 2019, Giphy briefly removed
its many, many GIFs of The Child from The Mandalorian, a creature designed to be so adorable
that I can only assume the design came directly from
Disney's merchandising team.
Those GIFs were removed
because of what Giphy described as "confusion about certain content". I'd guess they got a legal letter
from someone at Disney, before Disney realised
what a PR disaster it would be to stop the Internet having
immediate access to Baby Yoda. But the Guardian article about that brief takedown
has a really interesting final line: "Images in GIFs are widely understood
to fall under the 'fair use' exception." Notice how that's phrased:
"Widely understood." There has never been a court case about this.
Are GIFs fair use? I actually think that, if some company
got a bee in their bonnet, the same way they did about Napster
twenty years ago, and if they insisted on litigating
all the way to court, it is entirely possible
that a judge would go, "No, GIFs aren't a parody, they're not criticism,
they're not transformative, they're not fair use.
"Giphy's entire product, the GIF economy,
is based on systematic copyright infringement. "Pay the money, shut it down." In practice, of course,
it wouldn't get that far. Giphy would accept a cease-and-desist
and take down what was complained about. It's just easier,
because remember, they're not an individual creator
or a small site. Giphy has an enormous office
in New York with catered lunches and arcade games
for more than 100 employees… based on a business model that is
arguably copyright infringement. I am amazed that no big media corporations
have looked at their money and gone… "We can sue them for that!" In the same way, uploading
video game footage to YouTube is "widely understood" to be okay,
but that's questionable.
Maybe if it's something like Minecraft,
where there's a lot of original work, it could be. And besides, the license agreement
that you accept when playing Minecraft allows streaming
and most YouTube videos. But if it's just a video of cutscenes, or following roughly the same
sequence of events that every player would follow, it's a bit like putting up a video
of you watching a TV show. We've seen companies decide
in the past that… actually, they don't want
videos of their games online. It is very easy to make the argument
that online streaming of games affects sales. And the impact on sales
is a key component in determining whether something
is fair use. Sure, the games get some exposure,
but exposure doesn't pay the rent. I didn't buy Untitled Goose Game
and experience the beautiful artwork and immaculately-timed
comic setpieces myself. I skipped through a couple of videos
so I could get the jokes, and then I moved on.
I didn't buy Superliminal either. I just watched a video of someone
playing it to get how it works, skipped forward to see how it ends,
and then I got on with my life. And I'm glad I did,
the game mechanics are clever… but the ending is unsatisfying. Or maybe I just think that
because I watched someone else play it. And that someone else, who provided
a substitute for the original product, made money off that, either from
advertising or streaming donations. Now, video game streaming
might be fair use if you've got someone constantly criticising
and reviewing the work as they play it. Not just talking about it, or not just
repeating what they're saying in the game, or saying hi to the chat,
like actively criticising.
It would be up to a judge to decide, and no-one wants any case like that
to get to court, because somehow
we have an entire industry based around something that is
very possibly copyright infringement, but which most video game publishers
are just going along with. Perhaps because they genuinely think
it's a good thing, or perhaps… because they've seen
the backlash that happens when horrible gamer children are suddenly
denied something they think is their right. Like our friend in the corner. Hey, this is transformative.
This is definitely fair use. Would you do this
to a Marvel movie, though? No, mate. They'd sue me for
every penny I've got. ♪ In the not-too-distant future,
next Sunday A.D. ♪ In 1988, KTMA-TV in Minneapolis aired the first episode of
Mystery Science Theater 3000, which was basically a reaction channel. A host, along with a cast of puppet robots, would watch a full-length movie,
usually an old science fiction piece. They'd be in silhouette, as if they were
in the row of cinema seats in front of you, constantly cracking jokes about
whatever was on screen.
It's tightly written, scripted with
joke after joke after joke, although the skits that
surround the movie are often so laden with in-jokes
and character shtick that new viewers who don't know
the show and the cast can be completely lost. Like I said:
it's basically a reaction channel. Time magazine listed Mystery Science Theater as
one of the 100 greatest TV shows of all time. A Kickstarter brought it back in 2016, and then Netflix brought it back
for another couple of seasons. Mystery Science Theater was absolutely criticism
and review and absolutely transformative.
But they still licensed the movies. Anything that wasn't in the public domain,
they negotiated and paid for, because… yeah. Playing out someone else's entire movie,
just with wisecracks over it… probably not fair use. And even if it was, a studio would've
probably sued them at some point anyway, and they'd have had to defend the case
and spend the money to defend the case. Now, there have been YouTube commentary channels
who have defended lawsuits where fair use and fair dealing
seem clear. H3H3, an often-controversial
reaction and commentary channel, won a very expensive lawsuit that was
brought by someone they criticised. They were very happy about the result, and they shared that with their fans in a way that pretty much sums up
why their style… isn't for everyone. Good job, Hila.
Good job. [choking noises] [screams] The court even noted
that their video was transformative because it "responds to and
transforms the video from a skit "into fodder for caustic, moment-by-moment
commentary and mockery." The judge's decision goes into
the balancing factors of fair use in depth, but the most important bit
is a little bit further down: "Some reaction videos … intersperse
short segments of another's work "with criticism and commentary, "while others are more akin to
a group viewing session without commentary.
"Accordingly, the Court is not ruling here
that all 'reaction videos' constitute fair use." It's clear that just playing a video and laughing at it
isn't fair use. It's copyright infringement. The border of fair use is
somewhere in the grey area between lazy zero-effort reaction streamers
and in-depth insightful criticism… but it's a fuzzy border,
and right now, questions about it can only be settled on a case-by-case basis
in an expensive courtroom, because, yeah, there is one thread
throughout all these examples: under the current system, it often
doesn't matter who's actually in the right.
Even if the answer to
"Is it fair use?" is clear, it's actually about whether
you can afford to defend a case. You could be 100% sure it's fair use… but unless you're prepared to spend the time
and the money to actually fight that in court, it doesn't matter. Which brings us to
how YouTube worked around this. Back in 2006, YouTube made an arrangement
with the big music companies, so the big industry players wouldn't sue
this new platform out of existence.
YouTube developed Content ID,
which scans every video uploaded and checks it against an enormous database
of copyrighted content. If there's a match, everything works
completely outside the usual copyright system. All those worries about synchronisation licenses
and publication rights, all that law, is effectively replaced
with two contracts: one that's private between YouTube
and the big media companies, and one that's in the Terms of Service
that you agree to when you upload your bedroom-vlogger
video to YouTube. There is a public list of the music tracks
that are in Content ID, including the current policies
from the music companies. There's no list of the TV shows,
or films, or other stuff that's in there. Mostly, the copyright owners
just put adverts on the video. Sometimes, they do block it entirely, but…
those policies can change at any time, and if you do something
they particularly don't like, it doesn't make you immune
from lawsuits, or from formal takedown notices
under a law called the DMCA.
They're called "copyright strikes"
by YouTube. Those are still an option
for copyright owners. It's just that with very, very few exceptions,
they'll take the money from ads instead. Content ID means that video creators, unless they're being so malicious
as to attract serious attention, generally don't get sued
and don't get DMCA takedowns. They don't have to negotiate a
synchronisation license for cover songs. Now, some companies — music labels, mostly —
are also able to manually put Content ID claims on videos that
the automated systems miss. That is an avenue for abuse. And so is the manual appeals process
that's meant to kick in if the automated systems have flagged
something that really is fair use, like a review, or a brief
incidental snippet of a song that was playing somewhere
as you walked by. Often, the appeals process does work… but give a corporation an inch,
and they'll take a mile. Making decisions about fair use and copyright
is meant to be handed over to experienced, trained people
who can give nuanced judgements… but from the stories
that have come out over the years, it looks like it's mostly subcontracted out
to the lowest bidder, with enormous decision-making power
given to people whose job is just to run through the backlog of appeals
as quickly as possible and make snap decisions, knowing that very few people will
actually be able to do anything about the result.
I've been a victim of that in the past: A TV channel from Thailand
took one of my videos, played it out without permission
in one of their big television shows, and then put that entire television show
into Content ID. I got a Content ID hit
on my original video from them, and that took a long time
to sort out. And I never found out,
in the end, whether that channel kept their access
to Content ID or not, because, yes, companies that abuse it
should have it taken away from them. But, of course,
if YouTube does that, then they fall back
to the legal default position: DMCA takedowns or lawsuits, either against the creators
or against YouTube itself. There are absolutely flaws in Content ID.
I am not saying it's perfect. There are hundreds of cases
that we could talk about where the system didn't work, and thousands more
that never got enough publicity for the world to actually notice them. There are so many edge cases, like the people who got copyright claims
on white noise, just on the sound of static, because the system wasn't originally built
to deal with white noise.
Or the people who do in-depth
music theory analysis of songs, very likely fair use,
but still getting manual Content ID claims. But I don't think Content ID is broken. It's a reasonable stopgap.
It works almost all the time. That video of a couple's first dance at a wedding,
uploaded by the father of the bride: No, copyright law doesn't allow him
to upload that to YouTube, not unless he's got
a synchronisation license. But Content ID just deals with it,
and the video stays up. That excited fan video
from the kid in the front row at a concert: No, not permitted under copyright law. Content ID deals with it. The teenager making a video
compiling all the romantic subtext between their two favourite characters
in a show: No, not allowed.
It's not criticism or review.
But Content ID deals with it,
and the video stays up. Without Content ID, those videos would be
taken down by DMCA copyright strikes, and if someone protested,
the next step is a lawsuit. Maybe for the uploader,
but more likely, the same would happen
as all those years ago: the big media companies
would go to YouTube and say: "You're allowing this to happen.
You're making money off this. "We're going to sue you
out of existence." Sadly, it's not about what's fair,
or what's just. It's about the arrangement that YouTube
and the big media companies have come to. It's not ideal,
but under copyright law, current copyright law at least,
I don't think there's a better option.
And I don't want to sound
like the grumpy old man complaining about the kids these days, but yes, when I started on YouTube, 2006,
there was no monetisation option. Creators could not earn money
on-platform at all. And that was fine, because it was a miracle
that someone was offering to do the incredibly expensive and difficult job
of hosting video for free! One of the reasons there aren't
any serious competitors to YouTube is that it is ruinously expensive
to run a video hosting site: you either have to be a subscription service
or one of the world's largest advertising firms. A lot of folks,
particularly younger people, who have only joined YouTube
in the last couple of years have a different baseline for this: They think that they have "the right" to upload
long compilations of their favourite videos with maybe a few words
spoken between each clip, and make loads of money from it, that that is something
that they are entitled to do, and that any copyright owners who complain
are censoring them and putting in false claims… Yeah.
Okay, yes. I'm the grumpy old man
complaining about the kids. But, under the current copyright system,
those kids are legally in the wrong. Maybe not morally.
That's a different question. But legally, they are in the wrong. There is an enormous distance between what the law says
and what the world's actually doing, and that is where
most of this tension comes from. So. How do we fix it? We need three things. We need to update copyright law, we need a good small-claims court
for copyright, and we need to shorten
how long copyright lasts. So, first: updating the law. This is a big goal, but
the entirety of international copyright law needs to be rewritten
to reflect what's fair in today's world. Everyone will have a different opinion
of what that is. I'm actually fairly conservative on it. I'm not convinced that we should
massively widen the definition of fair use, because every bit of freedom
you give to individual creators also makes it easier for big companies
to rip them off.
But I'm not going to say
where the line should be drawn. It is a job for consultation
and conversation, where everyone is at the table,
not just the big publishers. And if completely rewriting
international law seems unlikely, then it's still possible
to push for changes. In 1990, one article by one judge
swayed opinion among the US legal community, and helped change
the most important factor of fair use from whether it was commercial
to whether it was transformative. It is entirely possible that
new publications like that could help improve things.
The judge's conclusion in that article
also makes an excellent point: there should not be a clear
and unambiguous definition of "fair use", what he calls a "bright line standard",
unless we have a good standard. And we don't have one. The border of fair use has to be messy
because people and creativity are messy. So if fair use is going to be messy,
and if it will inevitably lead to conflict, let's make resolving that conflict
quick, fair and accessible. This is already starting to happen
in the United States, but badly. The UK has one of the world's friendliest
copyright regimes for individual creators.
We have the
Intellectual Property Enterprise Court, which is mainly based here,
at the Royal Courts of Justice in London, and it's a specific court
to deal with cases about copyrights, and patents,
and trademarks. And that court has a small claims track. If you're an individual photographer
or video maker, you can do the research,
file the right forms, follow the right procedures, and issue a claim
as a "litigant in person", which is the fancy British term for
"without a lawyer".
I've done it, because a major company
ripped off one of my videos. This court is designed to be
more friendly for individuals: the procedures are more relaxed,
it's almost like mediation rather than a court… except that,
if all negotiations fail, then there is a judge
issuing a legal order at the end of it. It is stressful. It is hard work.
You need to get all the details right. You should probably get a lawyer
if you're gonna do it, but if your job is basically
reading hundreds of pages of nerdy detail and summarising it into something
the world can understand, then, yeah, it can be done. It is really nerve-wracking. Like, most of the people
who walk into the admin building of one of the biggest courts in the country,
without a lawyer, to try and file a claim… They don't have the best grip on reality,
but all of them think they do. And there I was,
walking in, no lawyer, thinking I had a case,
thinking I had a grip on reality.
Statistically, the odds weren't in my favour,
but I filed successfully. And the company settled with me,
they paid me to drop the claim, because they were in the wrong,
and they knew they were in the wrong, and they knew I could actually get it to a judge
in exchange for a bit of work and a court fee of just over £100. There is a plan to do something like that
in the United States. At the time of recording, the Copyright Alternative
In Small Claims Enforcement Act, the CASE Act,
is passing through government. Unfortunately, it has massive flaws: using the new small-claims track
is voluntary for both parties, which means that
if you want to sue a big company, that company can just choose
to opt-out and require you to
take the expensive path. And to quote an explainer: "If the losing party does not comply
with the judgment, "the prevailing party can bring an action
in federal court to enforce it." So if you actually want the judgment
to be effective, you may have to take
the expensive path anyway.
In short, all the power is still with
the people who have money. Oh, and it means that it's now much,
much cheaper for big companies to try and enforce unfair claims
against large numbers of individuals: it's a so-called 'default judgment mill'. The CASE Act is not a fix. It's a step
sort-of in the right direction, but it's not great,
and it may well lead to more problems. There's also a wider problem
dealing with this across international borders, but that's a separate issue. Having a working small-claims process
in the United States would help address the massive imbalance
between the rights of individuals and the rights of huge corporations, at least on this platform,
And even if that's just in the US:
from there, the world will follow. So then finally:
we shorten how long copyright lasts. Under current US law,
if a modern work has an individual author, then its copyright generally lasts
until death plus 70 years. For works by a corporation,
it's 95 years from publication. There are a huge number of
complicated factors for older works because of the many, many changes
to the law over the decades, but that's a decent rule of thumb. And… that's too long. Singer-songwriter turned politician
Sonny Bono, the person who the Copyright Term
Extension Act of 1998 was named after: He believed that copyright should be forever. That the great-great-great-great-
great-grandchildren of Shakespeare should still be able to charge licensing fees
for adapting Shakespeare's work — or more likely, those rights would've been sold
to a corporation at some point, and "Shakespeare Intellectual Property Ltd." would now be able to collect
license fees into eternity.
I think that opinion is so ridiculous
as to be indefensible. If copyright lasted forever,
if nothing ever entered the public domain, then yeah, someone
would still have the final say on how Shakespeare
could be adapted or performed. Perhaps you could perform it
however you wanted, but only by paying
an enormous license fee. Little community theatres like this?
Priced out. Or perhaps someone would want to defend
the Shakespeare Brand Guidelines, and insist that all adaptations
be entirely faithful to the original text. So, no Baz Luhrmann Romeo + Juliet
without permission. No 10 Things I Hate About You
without permission. The Lion King? Very close to Hamlet, that.
You want to avoid that lawsuit. Making a reference to how
"all the world's a stage"? Pay up. Needs a license. And if you think that's ridiculous, find any book that quotes
one copyrighted song lyric, maybe to introduce a chapter: there will be an acknowledgement
somewhere that they've got permission
from the copyright holder.
The point of copyright is to allow people
to profit from their creative work. I am not against copyright.
I rely on copyright to earn a living. But the works that fall into the public domain
are vital for creativity. And patents only last twenty years! Twenty years before your patent expires, and anyone can take your actual,
physical, real-world invention and just churn out cheap copies for everyone. If you invent something that literally
changes the world, great! You get twenty years
to make all the money you can, and after that, you will be out-competed by other people who can do it
better and cheaper. But write a song?
You get until you're dead! Plus your descendants get
another seventy years. That is ridiculous! And meanwhile,
all the "orphaned works", the obscure things where no-one can
track down the copyright holder anymore to ask for a license… Well, they can't be archived,
they can't be copied. They often can't be preserved at all, just because no-one knows
who to ask for permission.
The longer copyright is,
the worse that problem gets. And I know, a twenty-year copyright term
that matches patents would never get through modern politics. When you have enormous corporations that earn billions from
their copyrighted back catalogue, it is trivial for them to spend
a fraction of that on lobbying to make sure
copyright doesn't get reduced. I would like it to be twenty years,
I would campaign for twenty years, but… I also know
that it's not going to happen. And, to be fair, it does feel like the people who made the songs
of the '80s and '90s, the songs that are still being listened to
in this current nostalgia cycle, they should probably be able to make
some money from that.
So, I would suggest 50 years. It's an easy number, it allows
a couple of nostalgia cycles to happen, and it would mean that right now,
the '60s would be public domain, and the '70s would be on their way. The decades that are no longer
pop-culture nostalgia, but history. Pachelbel, Chopin, Beethoven: they should
already be joined in the public domain by Dylan and Mitchell
and Hendrix and Cline. Shakespeare and Shelley —
either Shelley — they should be joined by Lee and Heller
and Orwell and countless others, including the works that
no-one can trace the owner of, because after 50 years, you shouldn't
need to trace the owner of a work. You should just be able to use it. Anyone should be able to make
a James Bond movie by now. 'Cause they'd probably do a better job. Yes, the people who have already made
ludicrous amounts of money would not be able to make
as much anymore, sure. But the artists' work, the thing they're
supposed to actually care about, could be enjoyed and built on by everyone. And the few artists from back then
who are still popular will be absolutely fine, continuing to make money from
their world tours, and merchandise, and public appearances, and newer albums.
And an entire new generation
would get exposed to music and writing and art that might otherwise be forgotten about. A shorter copyright term would badly affect
perhaps a few hundred people in the world: the folks who created one hit song,
or one incredible book that is still bringing them money
decades later, and who are now relying on that money
as their only source of income. It's not many people, but yes, the very,
very, very few who fit into that category, it'll suck for them. If royalties were their pension scheme —
I mean, that's bad financial planning, but if they were thinking that
the one song they made in '64 will get them through their retirement, yeah, it's gonna be a shock. I do not believe that
that's a strong enough argument to justify locking up
all that creativity, all that potential for the entire world,
for that long.
No-one's going to stop creating because they only get 50 years'
or 20 years' copyright. Songwriters, and authors, and filmmakers,
and choreographers, and YouTube creators: we make things because we can. Because we have ideas
and we want to show them to the world. Not because we're thinking that
our grandchildren might, one day, have a chance of getting a trickle of money
from some future copyright license. So, when I say that YouTube's
copyright system isn't broken, I mean it. It's a reasonable patch,
a bit of duct tape holding together a system
that's somehow still just about working, despite being completely unsuited
for the modern world.
Yes, occasionally it goes wrong. When that happens, it should be fixed
quickly and transparently. But the long-term solution
is not to apply another patch, on another patch, on another patch,
on another patch. The solution is to fix the system
that it's trying to work around. Because that's the problem. YouTube's copyright system isn't broken. The world's is. Alright, that's it. Remember to like,
comment— oh come on! Over on Nebula, I've got a new series.
Here's the trailer.
I invited five people to play some games. I trust no one.
None of us are trustworthy. …in an environment designed to
slowly break their team apart. This is real money! But all they knew
is they'd be sat around a table trying to win real cash: $10,000. The vibe's changed
after that theft. This is a show about trust,
about loyalty, and about Money. Tom wants the chaos.
(all laugh) Nebula is a home for new, in-depth
and experimental content, and collaborations from
some education video creators that you may well have heard of.
And you can get it for free
when you join CuriosityStream, a subscription streaming service
with thousands of big-budget, professional documentaries
and nonfiction titles. CuriosityStream is $2.99/month
or $19.99/year, it includes access to Nebula,
including my new series, and you can get a 30-day free trial by going to
curiositystream.com/tomscott Is he even allowed to mix
advertising and content like that? That is a whole other video.
[Caption+ by JS*
https://caption.plus] So if fair use is going to be messy, and if some of it will
inevitably lead to disputes, let's make that process quick… I said dis-PUTES.
I didn't say DIS-putes, I said dis-PUTES. I said the verb, not the noun. It's an important distinction.
Can we try that again? …will inevitably lead to disputes, let's make that process quick,
fair, and accessible. I still said, DIS-putes. …inevitably lead to disputes—
inevitably lead to disputes— …inevitably lead to disputes— let's make a—
DIS-putes! So if fair use is going to be messy,
and if it will inevitably lead to conflict… Maroon 5's Memories
is an infuriating composition that uses the start of the melody of
Canon in D but never resolves it which means it has the same
stuck-in-your-head effect as the jiun-gle from— [stammers] Nope.
Worth a try.
Let's go back! [vocal warm-ups] Alright, how're we doing? Yeah, I got that on camera.
That's good. Good. Every week, there seems to be
in-a-new headline about— There seems to be—
[stammers] We bought that license
in good faith from a… What'd it say?
"Oh I'm sorry, we had no idea." Let's try it again, take… eight, or is that seven now? [screams] [screams] [low scream] [faint yell] [yelps] [long scream] Ooh, sorry. …mainly based here,
in the Royal Courts of Justice. No, I saw you walk into that… [strained] Yep! [groans] It's fine! All right, that's it, I'm out of battery
and out of patience. We are done..