The Digital Millenium Copyright Act (DMCA) has provided user-generated content websites with four safe harbors that effectively put the onus on rightsholders to protect their intellectual
property. While 2012 saw the content lobby go nuclear on the DMCA and try to shift the onus of takedown notices from the
content owner to the aggregator who serves as the platform to the alleged acts of piracy, as a producer of video content, I have focused more on another aspect of copyright law, namely, fair
use.
More so than with articles, online video content has flourished thanks to fair use, so in this article we’ll outline what it entails and how it both fosters and limits
commercial development.
Section 106 and 107 of Copyright Law
Section 106 of the copyright law provides the owner of copyright
in a work the exclusive right:
- To reproduce the work in copies;
- To prepare derivative works based upon the work;
- To distribute copies of the work to
the public by sale or other transfer of ownership, or by rental, lease, or lending;
- To perform the work publicly;
- To display the copyrighted work publicly
- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
If that was “all she wrote,” then copyright would be
an open and shut case. However, the doctrine of fair use has developed through a series of court decisions over the years and codified in section 107.
Ironically, the same way that the DMCA
has four “safe harbors,” fair use includes four variables, namely:
1. The purpose and character of the use, including whether such use is of 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
4. The effect of the use upon the potential market for, or value of, the copyrighted work
Since this is ultimately a column about making money from video content, for the purpose of
this article, we will focus only on the first variable: whether it’s to be used commercially. It is important to note that commercial use does not automatically nullify fair use. For
example, if a newspaper publishes excerpts of a book and runs ad for bookstores selling that book alongside the review, that would fall under fair use. The list goes on and on.
How does this apply to online content and video in particular?
However, if you’re using something under fair use, you can get away with commercial use -- but
you cannot go full-tilt and monetize it to the fullest extent. I would like to stress that I am not a lawyer, but I have consulted with dozens of lawyers representing all three sides of the
debate and I would consider myself well-versed in the matter.
Applying this to the world of online media and video content in specific, you might be able to serve a pre-roll or display
advertisement before or alongside a video that employs fair use, but you might have a harder time getting away with it if you have a direct sponsorship or endorsement.
Nonetheless, fair
use is omnipresent: news organizations, portals, and media companies all rely on it even if they are for-profit businesses.
Leaving Billions On the Table
But, in
doing so, we -- and the ecosystem in general – are leaving billions on the table.
Chris Rock once said: “Just because you can drive with your feet doesn’t mean
that you should.” In the same vein, just because we can get away with further commercialization of a fair use project doesn’t mean that we should.
While fair use has
allowed society as a whole to benefit from new projects based on older works, it’s clear that by trying to please both sides of the debate we are foregoing a lot of potential economic
activity.
There’s a business opportunity around this inefficiency, but whether or not the loss of potential revenue is enough to bring the various stakeholders remains to be
seen.