7 ms·

Not to mention that that's not a copyright violation if it's incidental and under 1 minute or so.

pdmf 7y ago
Just curious, do you have a source for that? I'd like to read more about it
dijksterhuis 7y ago
Not quite true. Incidentals under Fair use are entirely dependant on the context of the created content (at least for the UK). News/educational - likely okay as incidental. Everything else is up to the courts to decide. Under this example, I’d argue that this is not incidental usage. The audio could be considered integral to the “scene” that is being recorded. It gives the audience an idea of what place x looks, feels and sounds like. And this is certainly not news/educational content.
- nickjj 7y ago
  > Under this example, I’d argue that this is not incidental usage. The audio could be considered integral to the “scene” that is being recorded. It gives the audience an idea of what place x looks, feels and sounds like. And this is certainly not news/educational content. But if you watched his videos this isn't the case. It's him walking through some public outdoor market in Sri Lanka and one of the vendors happens to have a radio on which is captured by his camera's microphone as he walks through while narrating what's going on. He didn't go out of his way to capture the audio separately and then overlay it afterwards. It's background noise that was recorded in the same audio stream he uses for his voice's microphone, which makes it pretty much impossible to cut out later short of muting all of the audio or making artificial cuts to remove the content. In any case, it's a shitty situation for both the content creator and the viewer.
  - dijksterhuis 7y ago
    How it was recorded has nothing to do with copyright law (in this case, mechanical rights are a whole thing). A musical work was publicly performed (via the radio). He recorded that musical performance (making a copy of the musical work in the process) and then distributed that recording of it to a wider audience. Each time someone watches that video, that is a public performance of that musical work. Whether there was intent or not, it doesn’t matter. How it was recorded doesn’t matter. Copyright law doesn’t care about intent. It cares whether a musical work has been performed or copied. Both have happened in this case. And it can be argued that it does not fall under news programming (he’s not a journalist breaking a story) nor educational (he’s not teaching anything). Therefore it will struggle to be considered fair use. This is actually copyright law finally being applied correctly on the internet. Its just taken years for it to actually happen on platforms like YouTube.
    - nickjj 7y ago
      I agree with recording by accident or on purpose should not be a deciding factor in anything but... The problem is 10 seconds or even a minute of a recorded song shouldn't mean a record label or the original music owner can swoop in and reap 100% of the ad revenue (minus Google's cut) for a 1 hour video you recorded which has ads relevant to your content (not the song). By the way, you could argue he is educating because he often visits historical sites and gives some back story on it. You could also argue he is a journalist because he has a running series called "Harald invades" where he'll go into some family's house (with permission of course) and learn about how they live and work (aka. it's a story). Actually most of his videos feel like stories, since it's not over edited garbage with a spin for profit. He just goes through towns and documents the process raw. I would say he is one of the best journalists I've ever seen.
      - dijksterhuis 7y ago
        I agree with the 10 seconds problem. But that’s a problem with Youtube’s implementation - nothing to do with fair use, incidentals or copyright law. Edit: having replied to another comment, I think I’ve realised something. IIRC The original YouTube license deal with PRS meant that they only sent over video level data - no cue sheets of music tracks etc. They specifically wanted this in their license. So their current implementation might be a remnant of that. News and educational content actually have quite narrow scope. And those episodes/segments probably wouldn’t fall under that scope. And then you have to take into account the overall purpose of the channel. Which is not one of news/education. People watch it for entertainment much like the old Michael Palin travel documentaries. None of which are considered news or educational.
  - dredmorbius 7y ago
    A better solution might be mechanical licenses calibrated to the usage and revenues. 30-minute (1800s) video plays an 18s of a somg? Mechanical right by song's author to 1% of monetisation. Used in samling or simultaneously with other copyrighted works? Mechanical split among works. The percentage might be tweaked -- vieo holder splits 50-50, so songwriter gets 0.5% rather than 1%, in this hypo.
    - zimpenfish 7y ago
      Having recently been enlightened as to the incompetence of record labels when it comes to handling revenue splits in the simple model (e.g. they can't even get them right for Tier 1 artists with a simple split between authors), I'd not hold out much hope they'd be able to cope with a more complex model like this. And that's before you get to antiquated places like the PRS who would also need to be involved.
    - dijksterhuis 7y ago
      This is actually similar to how it works for traditional TV and Radio Broadcast in copyright societies: (Total revenue of license period x peak/non peak weighting x duration of song played) / total music duration for license period. This is something YouTube vehemently fought against. At least in the original 2014 contract with PRS for music. IIRC YouTube would never send cue sheets (list of included tracks per video) in the usage reporting data. It was just the video title. That was the old deal though - I left before the new deal was signed with ICE services. Edit: oh, and sampling has its own process. The content creator has to negotiate with each individual rights holder as to the splits when the song is registered.
    - tripzilch 7y ago
      I don't think it's fair if copyright holders can just inject their audio by having it played in the background somewhere as you are recording (like recording in the vicinity of a bar, which is what one of the commenters talked about), and then get to monetize that. Which is exactly what these corporations are doing when they buy air time on the radio: part of it is definitely marketing strategy to have that audio be in the background or present in as much places as possible, purely for exposure. It's something they are actively injecting in our shared/public spaces, basically making ambient sounds "copyrighted", and it's kinda ridiculous they expect to be paid when successful. I know, this is how copyrights works. But it's a relatively new thing they actually take action when something is recorded that has unwanted background sounds, that the video maker unwittingly recorded, while the copyright holder is explicitly paying to have that sound be playing in the background of as many venues as possible, with the purpose to expose it t as many people as possible. Also this crazy idea is unheard of (haha pun) in other kinds of media: If one of my graphic designs would be shortly visible in the background of a camera pan ... can you imagine trying to claim even 0.1% monetisation?
- jandrese 7y ago
  The other thing to remember is that media cartels don't want you to remember that Fair Use is a thing, so they try as hard as possible to make sure no automated system has a provision for it and to argue that there's no good standard to follow so you can only use it if you're willing to pay for lawyers and court time. But in YouTube's case it is kind of moot since the system isn't designed with fair use in mind and is not technically copyright claims. It's entirely up to YouTube to decide what they do, and their default and only position is to side with the media companies with the expensive law firms over their actual content creators.
  - dijksterhuis 7y ago
    Actually fair use falls firmly on the side of copyright holders when a claim is made, until it is disputed in court. The provision for it is to take it to court. That is the only option. There is nothing YT can do if a claim has been made. So it’s right that there isn’t a counter claim system in place for fair use here.
    - VBprogrammer 7y ago
      I'm not sure why this is being downvoted because it's exactly correct from a the current legal position (as far as I understand it). An automated system can't reasonably be expected to establish, for example, whether copyright content is being used for the purposes of parody. Similarly, a copyright holder has every right to disagree with your determination of what is parody or transformative works, there aren't any simple rules to get around that. Whether that is a sensible position for us to find ourselves in is another question.
- fenomas 7y ago
  > Under this example, I’d argue that this is not incidental usage. This seems hard to buy - surely courts are aware that copyrighted material necessarily exists in public spaces? If this guy filmed himself walking around then presumably he filmed all kinds of illustrations on t-shirts, text on signs, people whistling to themselves, etc. Wouldn't the copyright owners of all those things be able to make the same claims as the owner of whatever was playing on the radio? If the law works the way you're describing here and in replies, it sounds like every video ever made in a public place would be one long string of copyright violations from start to finish.
  - dijksterhuis 7y ago
    The problem is that he is making money of the back of the recording of the musical work that has been registered as copyrighted material. That’s literally the whole point of copyright. Someone is making money off my musical work? I deserve to be remunerated for its use. (Very high level description). If it’s Someone whistling an on the fly melody then that’s fine. The musical work isn’t registered as being copyrighted. It’s just some bloke/lady whistling. So that doesn’t count and is totally fine. If they were whistling a popular tune, well, that’s getting into the whole idea of arrangements. They’ve created a new arrangement of the musical work, which might be copyrighted. Depends on context with arrangements. If this were a holiday video he shared with friends and family, it would totally fall under fair use. He’s not making money off the back of it. As to all the other signs etc, no idea. My background is music copyright.
    - deleted 7y ago
      [deleted]
    - fenomas 7y ago
      > The problem is that he is making money of the back of the recording of the musical work I don't follow. Can any reasonable person really suppose that a 30 minute travel video's ad revenue might be materially affected by the presence or absence of a random ten second snippet of a random song at some random part of the video, briefly audible in the background (at presumably low quality)? I'm no lawyer, but as stated the claim seems facially absurd.

pdmf 7y ago

Just curious, do you have a source for that? I'd like to read more about it

Not quite true. Incidentals under Fair use are entirely dependant on the context of the created content (at least for the UK). News/educational - likely okay as incidental. Everything else is up to the courts to decide. Under this example, I’d argue that this is not incidental usage. The audio could be considered integral to the “scene” that is being recorded. It gives the audience an idea of what place x looks, feels and sounds like. And this is certainly not news/educational content.

nickjj 7y ago
> Under this example, I’d argue that this is not incidental usage. The audio could be considered integral to the “scene” that is being recorded. It gives the audience an idea of what place x looks, feels and sounds like. And this is certainly not news/educational content. But if you watched his videos this isn't the case. It's him walking through some public outdoor market in Sri Lanka and one of the vendors happens to have a radio on which is captured by his camera's microphone as he walks through while narrating what's going on. He didn't go out of his way to capture the audio separately and then overlay it afterwards. It's background noise that was recorded in the same audio stream he uses for his voice's microphone, which makes it pretty much impossible to cut out later short of muting all of the audio or making artificial cuts to remove the content. In any case, it's a shitty situation for both the content creator and the viewer.
- dijksterhuis 7y ago
  How it was recorded has nothing to do with copyright law (in this case, mechanical rights are a whole thing). A musical work was publicly performed (via the radio). He recorded that musical performance (making a copy of the musical work in the process) and then distributed that recording of it to a wider audience. Each time someone watches that video, that is a public performance of that musical work. Whether there was intent or not, it doesn’t matter. How it was recorded doesn’t matter. Copyright law doesn’t care about intent. It cares whether a musical work has been performed or copied. Both have happened in this case. And it can be argued that it does not fall under news programming (he’s not a journalist breaking a story) nor educational (he’s not teaching anything). Therefore it will struggle to be considered fair use. This is actually copyright law finally being applied correctly on the internet. Its just taken years for it to actually happen on platforms like YouTube.
  - nickjj 7y ago
    I agree with recording by accident or on purpose should not be a deciding factor in anything but... The problem is 10 seconds or even a minute of a recorded song shouldn't mean a record label or the original music owner can swoop in and reap 100% of the ad revenue (minus Google's cut) for a 1 hour video you recorded which has ads relevant to your content (not the song). By the way, you could argue he is educating because he often visits historical sites and gives some back story on it. You could also argue he is a journalist because he has a running series called "Harald invades" where he'll go into some family's house (with permission of course) and learn about how they live and work (aka. it's a story). Actually most of his videos feel like stories, since it's not over edited garbage with a spin for profit. He just goes through towns and documents the process raw. I would say he is one of the best journalists I've ever seen.
    - dijksterhuis 7y ago
      I agree with the 10 seconds problem. But that’s a problem with Youtube’s implementation - nothing to do with fair use, incidentals or copyright law. Edit: having replied to another comment, I think I’ve realised something. IIRC The original YouTube license deal with PRS meant that they only sent over video level data - no cue sheets of music tracks etc. They specifically wanted this in their license. So their current implementation might be a remnant of that. News and educational content actually have quite narrow scope. And those episodes/segments probably wouldn’t fall under that scope. And then you have to take into account the overall purpose of the channel. Which is not one of news/education. People watch it for entertainment much like the old Michael Palin travel documentaries. None of which are considered news or educational.
- dredmorbius 7y ago
  A better solution might be mechanical licenses calibrated to the usage and revenues. 30-minute (1800s) video plays an 18s of a somg? Mechanical right by song's author to 1% of monetisation. Used in samling or simultaneously with other copyrighted works? Mechanical split among works. The percentage might be tweaked -- vieo holder splits 50-50, so songwriter gets 0.5% rather than 1%, in this hypo.
  - zimpenfish 7y ago
    Having recently been enlightened as to the incompetence of record labels when it comes to handling revenue splits in the simple model (e.g. they can't even get them right for Tier 1 artists with a simple split between authors), I'd not hold out much hope they'd be able to cope with a more complex model like this. And that's before you get to antiquated places like the PRS who would also need to be involved.
  - dijksterhuis 7y ago
    This is actually similar to how it works for traditional TV and Radio Broadcast in copyright societies: (Total revenue of license period x peak/non peak weighting x duration of song played) / total music duration for license period. This is something YouTube vehemently fought against. At least in the original 2014 contract with PRS for music. IIRC YouTube would never send cue sheets (list of included tracks per video) in the usage reporting data. It was just the video title. That was the old deal though - I left before the new deal was signed with ICE services. Edit: oh, and sampling has its own process. The content creator has to negotiate with each individual rights holder as to the splits when the song is registered.
  - tripzilch 7y ago
    I don't think it's fair if copyright holders can just inject their audio by having it played in the background somewhere as you are recording (like recording in the vicinity of a bar, which is what one of the commenters talked about), and then get to monetize that. Which is exactly what these corporations are doing when they buy air time on the radio: part of it is definitely marketing strategy to have that audio be in the background or present in as much places as possible, purely for exposure. It's something they are actively injecting in our shared/public spaces, basically making ambient sounds "copyrighted", and it's kinda ridiculous they expect to be paid when successful. I know, this is how copyrights works. But it's a relatively new thing they actually take action when something is recorded that has unwanted background sounds, that the video maker unwittingly recorded, while the copyright holder is explicitly paying to have that sound be playing in the background of as many venues as possible, with the purpose to expose it t as many people as possible. Also this crazy idea is unheard of (haha pun) in other kinds of media: If one of my graphic designs would be shortly visible in the background of a camera pan ... can you imagine trying to claim even 0.1% monetisation?
jandrese 7y ago
The other thing to remember is that media cartels don't want you to remember that Fair Use is a thing, so they try as hard as possible to make sure no automated system has a provision for it and to argue that there's no good standard to follow so you can only use it if you're willing to pay for lawyers and court time. But in YouTube's case it is kind of moot since the system isn't designed with fair use in mind and is not technically copyright claims. It's entirely up to YouTube to decide what they do, and their default and only position is to side with the media companies with the expensive law firms over their actual content creators.
- dijksterhuis 7y ago
  Actually fair use falls firmly on the side of copyright holders when a claim is made, until it is disputed in court. The provision for it is to take it to court. That is the only option. There is nothing YT can do if a claim has been made. So it’s right that there isn’t a counter claim system in place for fair use here.
  - VBprogrammer 7y ago
    I'm not sure why this is being downvoted because it's exactly correct from a the current legal position (as far as I understand it). An automated system can't reasonably be expected to establish, for example, whether copyright content is being used for the purposes of parody. Similarly, a copyright holder has every right to disagree with your determination of what is parody or transformative works, there aren't any simple rules to get around that. Whether that is a sensible position for us to find ourselves in is another question.
fenomas 7y ago
> Under this example, I’d argue that this is not incidental usage. This seems hard to buy - surely courts are aware that copyrighted material necessarily exists in public spaces? If this guy filmed himself walking around then presumably he filmed all kinds of illustrations on t-shirts, text on signs, people whistling to themselves, etc. Wouldn't the copyright owners of all those things be able to make the same claims as the owner of whatever was playing on the radio? If the law works the way you're describing here and in replies, it sounds like every video ever made in a public place would be one long string of copyright violations from start to finish.
- dijksterhuis 7y ago
  The problem is that he is making money of the back of the recording of the musical work that has been registered as copyrighted material. That’s literally the whole point of copyright. Someone is making money off my musical work? I deserve to be remunerated for its use. (Very high level description). If it’s Someone whistling an on the fly melody then that’s fine. The musical work isn’t registered as being copyrighted. It’s just some bloke/lady whistling. So that doesn’t count and is totally fine. If they were whistling a popular tune, well, that’s getting into the whole idea of arrangements. They’ve created a new arrangement of the musical work, which might be copyrighted. Depends on context with arrangements. If this were a holiday video he shared with friends and family, it would totally fall under fair use. He’s not making money off the back of it. As to all the other signs etc, no idea. My background is music copyright.
  - deleted 7y ago
    [deleted]
  - fenomas 7y ago
    > The problem is that he is making money of the back of the recording of the musical work I don't follow. Can any reasonable person really suppose that a 30 minute travel video's ad revenue might be materially affected by the presence or absence of a random ten second snippet of a random song at some random part of the video, briefly audible in the background (at presumably low quality)? I'm no lawyer, but as stated the claim seems facially absurd.