How Fair is Fair Use for Online Content Creators?

January 6, 2022

Copyrights are broad forms of intellectual property that are given legal protection once the author transforms the work into a “tangible form of expression.” Hence, books, photos, songs, movies, artwork, and other types of expression are subject to copyright protection. With the existence of platforms like YouTube, Instagram, and Twitter, it is increasingly easy for people to upload their opinions and critiques of movies, books, television shows, and other copyrighted material. Some users go so far as to include trailer or movie footage, quotes, and other examples directly from the piece. Under some copyright laws, using direct depictions of the work is permissible and is known as “fair use.” However, with the world-wide scope of the internet and social media, it can become difficult for platform users to know whether every country recognizes a fair use exception to copyright infringement.

In the realm of United States copyright law, fair use allows for people to describe, discuss, and comment on copyrighted matter so long as such commentary is done in a “transformative” way. While there is no clear definition of what constitutes a transformative use, people who are criticizing, commenting on, or making a parody about a copyrighted work can use the copyrighted material to identify the aspects of the work being addressed. However, not all countries include a fair use exception for copyrighted material.

Mark Fitzpatrick, a Youtuber known as “Totally Not Mark,” recently dealt with the consequences of a lack of a universal copyright fair use provision. Fitzpatrick focuses his YouTube channel on anime and manga reviews, which feature copyrighted material predominantly owned by a Japanese-based company, Toei Animation. Fitzpatrick’s channel, which has amassed roughly 695,000 subscribers, was “hit“ with copyright infringement on over 150 videos as claimed by Toei Animation. Once a video has been claimed as unfairly making use of copyrighted material, YouTube removes the video. The removal of the video from the platform means it can no longer be viewed and therefore, the video’s creator can no longer monetize it. In response to the situation, Fitzpatrick released a video–which is no longer viewable– explaining his feelings and the impact of the copyright claims. In detailing the video and the situation for his article, Brian Ashcraft of Kotaku said that Fitzpatrick explained that the 150 videos taken down are the equivalent of “nearly three years worth of work.

This scenario begs the question: does this type of system, where each country operates under its own copyright laws, still make sense for internet platforms where information is meant to connect people across the world?

The key problem for Fitzpatrick is that his online video reviews of Japanese manga and anime incorporate footage of Toei Animation’s work and are therefore subject to Japanese copyright laws. In Ashcraft’s article, he cited an attorney, Keiji Sugiyama, who has explained Japan’s fair use policy. According to Sugiyama, unlike the United States which has a broad fair use provision as described above, Japanese copyright laws limit fair use in such a way that provides greater protection for authors of copyrighted material. Fair use in Japan is typically reserved for “private use” or “reproductions for schools and libraries” and gives authors the right to “preserve the integrity” of the work against any modification that the author does not approve. Though greater protection for authors is beneficial to some extent, the lack of a broader fair use provision restricts those who want to incorporate copyrighted material the way content creators like Fitzpatrick do in their videos, Tweets, and other forms of social media. Essentially, Mark Fitzpatrick is an Irish content creator who publishes videos to YouTube. YouTube operates on U.S. copyright law but respects the copyright laws of other countries. A Japanese animation studio was able to have Fitzpatrick’s videos taken down due to copyright laws in Japan. Fitzpatrick was subject to all of these laws at once because a blanket fair use system does not exist for content creators that release their content on internet platforms. This scenario begs the question: does this type of system, where each country operates under its own copyright laws, still make sense for internet platforms where information is meant to connect people across the world?

While YouTubers and viewers both take issue with YouTube’s copyright strike system, the problem may be broader than YouTube. Should internet content creators be knowledgeable of and subject to international copyright laws, even when publishing on a platform like YouTube that predominantly follows the U.S. copyright system? Perhaps the introduction of a blanket fair use exception that governs certain social media and internet platforms like YouTube would best resolve the dilemma. Content creators could focus on the fair use policies of the platform on which they choose to publish, and the authors of the copyrighted material would have the opportunity to contest any use they find to be infringement of the platform’s fair use exception. Influencers and social media figures would not have the burden of knowing international laws, but the authors of the copyrighted material would still have the chance to state their case and protect their work. This proposition would balance the public’s interest in obtaining information about the copyrighted material with the copyright author’s interest in having a sense of control over the way in which their work is utilized. Moreover, this proposition reflects the reality of current society–a world where the internet connects people across the globe despite legal and physical boundaries.

Claudia Perez

Claudia attended the University of Miami for college and majored in Biology. With a background in science, she gravitates toward intellectual property issues in the law. She enjoys dancing and trying new recipes.