GOOGLE to the rescue!

An American individual who uploads a hilarious video of their cat, dog or goldfish jamming to a prince hit could potentially be served with a DMCA (Digital Millennium Copyright Act) take-down notice for copyright infringement. A recent announcement by Google is set to alter this trend and ensure that appropriate users are protected by the fair use exception.

Google, who owns and operates YouTube, took to its public policy blog and in a Robin Hood style statement declared that:

‘YouTube will now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary…we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Centre as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them”.

Fair Use is US style defence to copyright that allows for the re-production of copyright material for specific purposes such as criticism, comment and teaching. The concept of fair use is not confined to America. Here in Australia we have ‘fair dealing’ exceptions, a somewhat weaker version of Americas fair use doctrine. There has been a push, however, to move in the direction of America and adopt a fair use system with an ALRC Report released earlier this year supporting such a move.

The ‘fair use’ while (arguably) better than our system is by no means perfect.  What constitutes ‘fair use’ is ambiguous, formed by an uneasy trajectory of case law that has established blurred boundaries.  American rights holders recognise its ambiguous nature and their ability to easily exploit it through making unjustified DMCA take-down requests which creators are intimated by. The promise by Google to defend the weak (YouTube users) against these well- resourced companies is a win for fair use advocates. It enhances the balance between copyright owners and users by discouraging an overreach in infringement claims.

With 300 hours’ worth of content being uploaded onto YouTube each hour YouTube will have to be very selective in what it chooses to defend. Given YouTube financially suffers from advertising losses when popular ‘infringing’ videos are removed by take-down notices, it’s not quite the Internet equivalent Robin Hood narrative. Nevertheless, it will be interesting to see if Googles move will help dissuade an overreach in infringement claims and enhance the position of the fair use defence.