Stepping into the digital age of copyright protection

Keep pace with the current legal and regulatory frameworks in order to stay competitive.

At some point, every content creator may wonder how to protect their copyrighted works. The sooner an author deals with this question, the easier it will be to safeguard their intellectual property and progress on any digital platform. Often, there are cases when your content does not violate the regulations of a specific digital platform, but you still may receive a complaint from the copyright holder. How should you react in this situation? This article takes a detailed look at the importance of copyright for content creators of all sorts, from digital marketing professionals and SMM specialists to YouTube bloggers, and brings to the table the basics of copyright in the digital age.

What does copyright protect?

Copyright refers to a form of intellectual property protection that safeguards original works of authorship, including literary works, artistic works, photographs, or software. Copyright protection only covers the expression of the idea and not the underlying idea itself.

If we delve into the terminology, copyright protects the original expression which is the product of authorship and is recorded on a tangible medium. Upon further investigation, you will also see that this description defines the 4 eligibility requirements for copyright:

• Requirement for originality
• Requirement for the idea of expression
• Fixation requirement (the work must be fixed on a tangible medium)
• Requirement for the claim of authorship (for example, if you have written a book, the expression of the work in electronic format or paper version will be protected by copyright)

What are the types of digital copyright for audio and video files?

After scrutinizing the different types of original works that are protected by copyright, it is vital to grasp exactly what rights video content and sound recordings may have.

Suppose you are a YouTube blogger who cooperates with a cameraman and an editor, as their recommendations may come in handy. The cameraman who filmed your video owns the rights to the video because they are the actual creator of it (since they filmed it). If you, as the creator of the channel, have verbally agreed with them to do the video, it would not be considered a legal guarantee that your video does not infringe upon their copyright and it will not protect you from the potential of the video being blocked.

Therefore, even if you have agreements with the operator and editors, there are three options you can additionally take:  draw up a subcontract with them (that they shoot specific videos on your request and the rights are automatically transferred to you); or sign an agreement on alienation of rights after shooting each video; or the transfer of an exclusive license.

As simple as things are with videos, the opposite is true with musical works, as everything is not so clear.

Each song has lyrics, a composition, and a soundtrack, and these types of materials can be created by different people, who in turn would have exclusive rights to their part of the work. Thus, if you decide to write your track and publish it on any digital platform, you should pay attention to the following:

1. If you borrow a beat from third-party services, you need to check the license under which it is distributed. It’s quite possible that the license does not allow for commercial use (the publication on digital stores provides for the receipt of income from the monetization of the song, which is commercial use), meaning that this beat cannot be edited (there is no option to put words to it, or to edit its key or speed) or it is necessary to specify the author of the beat in the metadata of your song when publishing on storefronts.
2.  If you did not write the lyrics of the song by yourself and they were created by somebody else, this person would have the right to the song’s lyrics. If you use words taken from the Internet or written by someone else without the necessary permissions, this would be considered a violation of copyright. Hence, before recording a song, make sure to answer these questions:

• Have the words of the musical work passed into the public domain (for instance, the words of a hymn could have passed into the public domain)?
• Under which license are the lyrics published? (consider a specific website)

A verbal contract may work for starters, but an undocumented agreement can eventually result in copyright infringement and a valid complaint. In addition, it is crucial to bear in mind that some music labels require copyright documents before publishing a release.

An additional type of rights, when it comes to tracks, is copyright on the sound recording itself, or “master recording.” For example, the song “All Along the Watchtower” was originally written and composed by Bob Dylan. Several artists, including Jimi Hendrix, made it into covers later. In this situation, the copyright for the underlying musical composition (lyrics and musical arrangement) belongs to Bob Dylan, while the copyright for a specific sound recording, such as Jimi Hendrix’s version of this track, belongs to Jimi Hendrix.

What does copyright mean to you as a copyright holder?

After the documents confirming your rights are drawn up, you can finally upload materials to the Internet. Yet, this implies several nuances. How do you protect your rights after the creative work is put up for grabs to the audience? And what can you do with the content as a copyright owner?

The copyright holder has various types of exclusive rights and they represent opportunities to:

• Reproduce the work
• Distribute the work (make the content publicly available in one way or another)
• Prepare derivative works
• Perform the work publicly (at a concert, on the radio, on television)
• Publicly demonstrate the work

This means that the owner has the sole and exclusive right to publicly distribute copies of the work by sale, rental, or lease, and perform or display the work in public, including selling copies of a novel or playing a musical recording publicly in a restaurant. For example, an exclusive right to reproduce a work does not allow a fan who has purchased a CD to make and distribute copies of that work to others. In addition, the right to permit or prepare derivative works gives the copyright owner the right to produce or allow another party to produce a remix, cover, or translation (derivative work) of the original protected song. In this case, the remix will be considered a new arrangement of the original work.

How do you prevent copyright infringement?

Of course, it is impossible to be 100% protected from content theft. However, you can try to reduce the risks by using the following methods:

• Create a warning to users

When publishing content, it is better to indicate your name in its metadata or title. This approach will make it easier to prove your authorship in case of a dispute. You can also post a content policy on your website, social media, or content pages. YouTube, for example, has a Content ID system to track content copies and claim rights to videos that embed your content. If you upload audiovisual content for tracking, this approach can also discourage users from re-uploading your content.

• Record the date of the work’s creation

This strategy will help you prove ownership and avoid legal issues in the future. Note that if you relied on someone else’s idea and then used it to create your original work, you cannot record the date. You would only be able to record the date if you created something new from the idea.

There are several ways to record the date of when you created your work:

• Prepare a document with the author’s text certified by a notary public. This is the most reliable method, but it is rarely used in practice due to the high cost and the limited range of agencies accepting the document.
• Send yourself registered mail with the text and/or save it on a flash drive. This is a classic strategy that is usually familiar and understandable to the courts. An obvious disadvantage is that such proof can be used only once.
• Record the fact and date of publication of your video. This option is highly affordable, but not all courts are ready to accept this kind of evidence. Although this option does not provide guarantees, it is better than nothing.
• Consult a notary public and certify the testimony of several people who witnessed you creating the work. Take into consideration that some authorities may not accept this document.
• Save the source files of the work. Video or music files contain metadata that store information about the way the content was created, the date of creation, and the author. You can store worksheets in the cloud or forward them via email so as to safeguard them in the long haul. 

One of the most reliable ways to prevent copyright infringement is to familiarize yourself with copyright law and be aware of the copyright status of any materials you are using. Whenever possible, obtain permission from the copyright holder to use their material before utilizing it, and ensure the proper attribution and citation when publishing or distributing the material. If you are unsure if copyright applies to a certain piece of material, consult legal advice.

What are your actions in case of digital copyright infringement?

After identifying copyright infringement, you may use these steps to rectify the situation:

• Record the violation

The “gold standard” for proving the fact of copyright infringement on the Internet is the notarized protocol of the web pages’ review. However, it should be taken into account that the cost of notary services grows with the increase of the volume of stolen content.

The violation can also be recorded on a video that clearly demonstrates all the wrongful acts. Video capture is beneficial in cases of audiovisual content infringement. Sometimes, the courts will accept printed screenshots from the infringer’s website. However, practice shows that you should be careful in relying on this method, as screenshots can be considered fake without a notary. Meanwhile, there is the option of verifying the plaintiff’s claims by accessing the necessary materials online during the court hearing.

• Establish the identity of the violator

Information about the site owner is usually available in the ’About Us’ section. In case of the absence of this section, you should contact the Whois service, which specifies the data of the domain administrator. If the domain administrator is an individual, then the information about them will most likely be hidden. If so, you can contact a lawyer to send an official lawyer’s request to the domain registrar. Usually, the registrars will provide the owner’s details.

Finding a violator will be more difficult if copyright infringement occurs on a social network because data about the page owner may be missing. However, as a rule, social networks can carry out their internal procedures that allow them to stop violations, even if there is no data about the violator.

• Submit a claim

It is almost always necessary to first file a legal claim against the infringer. Most often, the sites have special forms for submitting copyright complaints (you should fill out their form and send your claim as an attachment). If your goal is to get attribution or content removal, there’s a chance you can do it without going to court.

Social networks usually have a special procedure for reviewing and resolving copyright infringement claims. However, following a preliminary claim procedure is mandatory if you are an entrepreneur and want to collect damages or compensation. And, if you are determined to litigate, it is better to contact a lawyer at this stage.

• Apply to the court of jurisdiction.

If your goal is to recover damages and the site refuses to remove the disputed content, it will be necessary to reach out to a court following the laws of your country. Often, the laws of many countries provide for the possibility of taking preliminary security measures to block an Internet resource that hosts controversial content. You can submit a relevant application both on paper and electronically.

In the case of particularly malicious violations, you can also send a report to law enforcement agencies. Consequently, you have the right to demand the violator meet the following requirements:

• Acknowledge the authorship and/or indicate the author’s name
• Remove the content

And you can follow through by:

• Publishing the court decision establishing the fact of copyright infringement
• Collecting damages or compensation for the violation of your exclusive rights from the infringer

The rights holder’s damages consist of their actual losses (but this is unlikely in the case of copyright infringement) and the lost profits that the rights holder could have received if their rights had not been infringed upon (for example, in the form of lost revenue from the sale of content). However, in practice, compensation for the violation of exclusive rights is more popular since the right holder does not have to prove damages for its recovery.

What is fair use?

In this section, we will discuss the doctrine of fair use within the context of American law, which governs frequently used music platforms and video hosting sites, and constructs their rules and policies regarding user-generated content. It should be noted that a number of countries do not recognize this doctrine, while the laws of others (for example, Ukraine) redefine this doctrine, and their interpretation will not coincide with what is stated below. So, if your content doesn’t violate YouTube’s rules, but your country’s laws have their own fair use rules, you risk getting your video blocked at best.

US copyright law allows for using condensed extracts from copyrighted material which, under certain circumstances, may be quoted verbatim without permission or payment to the copyright owner for such purposes as criticism, news reporting, teaching, and research. These actions fall under the term ‘fair use.’

The general terms of fair use (free use) are:

• It should not harm the authors and deprive them of the opportunity to receive benefits from the results of their creative activity
• Fair use is carried out only within the limits defined by law

Although there is no normative definition of fair use, such use does not require obtaining permission from the work’s author and is free of charge. The utilization of fair use defines the conditions for establishing the legality of the use of the work, as well as the conditions for copyright infringement because of such use. Thus, it is not a violation to use the work for the purpose of criticism, news review, teaching, learning, or for any other purpose in which the use is not limited exclusively to these specified areas. The integrity check of fair use is carried out according to the following parameters:

• Purpose and nature of use (conversion factors)

In addition to the nature of the use, this parameter also considers whether such use has a commercial purpose. In case of potential copyright infringement, the court evaluates whether the use of the work was aimed at creating something new and different from the original, whether it brought about new information or if it helped to understand something, or whether it was copied entirely or changed with new wording. The transformed work does not necessarily have to be original and creative. The depth of the transformation, the amount of intellectual effort, and the novelty of the transformed work do not play a special role.

• Volume and significance of the used part compared to the whole object

This factor suggests that using a small or insignificant part of the work will be more likely to be found in good faith than borrowing a large part or one that includes important parts of the original. The reason for this is the close interrelation of these additional factors, the larger the volume or the more important the content of the copied part, because of the higher probability that the subsequent secondary work will be an effective competitive substitute for the original and thus reduce the sales and profit from the sale of the original.

• Result of use in the potential market or value of the copyright object

The court must assess whether the copy is likely to become a competing substitute product for the original work in such a way that it would cause a substantial reduction in the rights holder’s income due to potential buyers choosing the copy over the original.

All these conditions must be present at the same time and each of them must be evaluated depending upon the specific circumstances. In addition, in each specific case, the court will analyze other factors; for example, the moral portrait of the defendant in order to determine their honesty and respect for the norms of law and culture in general, or the factor of the smallest use when the use is so insignificant in volume that it does not require the analysis of the main four factors.

Considering the aforementioned nuances, American law can be interpreted in several ways, as there is no clear list of what can be used without indicating authorship and without the copyright holder’s permission. However, there is a clear list of situations in which you can use materials without permission, but with a mandatory indication of the author’s name and the source from which the materials were taken. Most of these cases have an official nature of use, like for educational and informational purposes, for the purpose of adaptation for people with vision impairment, as part of judicial or administrative proceedings, etc.

In the media space, including YouTube, the following cases may be most relevant:

• Use of short excerpts from published works in the amount justified by the purpose, if it is determined by the critical, polemical, scientific or informative nature of the work, which includes quotations.
• Free use of quotations in the form of short excerpts from performances and works included in the phonogram (videogram) or language program, as well as the use of legitimately published literary, artistic, musical, and other works so as to create another work based on them in the genre of literature, music, or other parodies, potpourri, or caricatures.

At the same time, it is necessary to observe the basic characteristics of such use:

1. Lack of commercial purpose (if monetization is enabled in the video or the video has advertising integration, this can be interpreted as a commercial purpose).
2. Mandatory indication of the author’s name and the source from which such material was taken.
3. The amount of material used can be justified by the purpose of its use.
4. Avoidance of the use of a work whose author and source of origin are unknown and/or impossible to establish.

Although the posting of various materials (for example on YouTube) is regulated by the law of the United States where the concept of ’fair use’ is applied, the person who uses someone else’s material may not be fully protected from lawsuits and liability for copyright infringement of the rights holder in Ukraine or another country of registration. Therefore, to minimize the risk of receiving a complaint on the platform and a lawsuit from rights holders, it is necessary to follow the basic principles of the free use of objects of intellectual property protected by copyright in the country of user registration, in addition to the rules of the platform.

What are the ways to remove infringing content on digital storefronts?

Music stores

Music platforms have special forms for submitting copyright complaints. You must include a link to the problematic material, indicate the type of infringement, provide a detailed description of the problem and attach the original work, along with your full name, email address, and other ways to contact you (if applicable).

Platforms can either remove the disputed content or hide it from searches and ask you to contact the content provider (company name and their email should be provided). If you contact the distributor of the breached track, you will most likely have to dispute the infringement within the legal field. Proof of your authorship will be required and additional materials proving that the rights have not been transferred may also be necessary.

YouTube

There are two ways to remove controversial content on the platform: automatically employing the Content ID system and manually using a special form.

The Content ID system allows rights holders to identify and manage their content on YouTube. It stores digital footprints, like samples of content uploaded by copyright holders. All new videos published on YouTube are compared to these footprints. If a match is found, the Content ID system will claim the rights to the videos on behalf of the rights holder and apply the policies they chose (these are the monetization of copies or their blocking).

It is noteworthy that not all authors have access to the Content ID system. Essentially, there must be proof that you have exclusive rights to copyrighted content. It is necessary for the Content ID system to find matches with the user’s videos. Here are some examples of material that the author cannot have exclusive rights to:

• Mashups, collections, compilations, and remixes of other works
• Video games streams, video elements, and trailers
• Unlicensed music and video
• Licensed music and video, but without exclusive rights
• Recordings of performances (including concerts, events, speeches, and shows)

You can use a special web form to request content removal if you do not have access to Content ID. You can also indicate that you want to prevent the re-uploading of copies of the disputed video. YouTube will only be able to block copies if you submit a complete and valid complaint.

On the web form, you must specify a link to the copied video, a link to the original (very desirable), or a detailed description of the original work, and the name of the copyright holder, along with your full name, address, and phone number.

Before sending a request to remove a video, you need to know some important nuances:

• Published materials should not comply with the principles of fair use, otherwise, your request will be considered invalid.
• As the name of the right holder, a legally permissible alternative can be used; for example, the name of the company or the name of the legal representative.
• The specified name of the right holder, as well as some other information from your request to remove the video, is considered public information.
• You must specify your full name in the request. YouTube may notify the user who uploaded the disputed video of your name.
• The primary email address provided in the removal request will be sent to the user who uploaded the video. This is needed if the user wants to contact you about the dispute settlement.
• Your physical address and telephone number will remain confidential unless requested as part of a legal proceeding. YouTube will send you a message before revealing them.
• You can indicate that you want to prevent the re-uploading of copies of the disputed video. Please note that if you use this feature, YouTube may share your email address and the name of the copyright holder with users who attempt to download a copy of your content.
• You can request that the chosen measures take effect after seven days. A user who has uploaded controversial content will be notified. They will have seven days to correct the violation. Otherwise, the video will be deleted after the specified period.

Final thoughts

Whether you are a freelancer creating content or a business owner relying on digital technology to market your products, understanding the basics of digital copyright serves as a baseline for protecting your work. Comprehending when and how to assert your rights as the creator allows you to ensure that you are appropriately credited, compensated, and recognized for your intellectual property. Armed with the knowledge of the importance of copyright protection, creators and business owners can have more confidence in the safety of their works, as any unauthorized use of their work will be subject to legal repercussions.

At Avenga, we know every single aspect when it comes to software development for our clients, the legal ones in particular. Interested in building a transparent and productive technology partnership? Contact us.