By Yang Sung-ho
‘Boramtube’, which has 17 million subscribers on YouTube, is a hot topic these days. The six-year-old creator’s advertising revenue is comparable to MBC, one of the top three Korean broadcast networks. The development of broadband internet and cheap video camera enabled anyone to produce their own show for broadcast, and the emergence of customized and interactive personal media channels on sites such as YouTube provided the conditions for equal competition as long as the contents were good.
As news has spread that making YouTube videos can reap a lot of profits, many people become content creators as full- or part-time jobs. Some creators explore new fields with their unique material, but just as with the phrase “There is nothing new under the sun,” showing clips of, reacting to or criticizing another’s content, such as movies and books, is more often the case.
However, if your video contains content originally produced by someone else, a charge of copyright infringement can arise. In the past, there was a time when copying another’s contents was not a serious problem. But recently, most people are well aware that there is such a thing as intellectual property rights, and they try not to infringe on other people’s creations. Nonetheless, it is often not clear in which cases copyright infringement can be recognized as having occurred or not.
To determine whether showing a clip of a movie and talking about it is an infringement of copyright, it is important to understand the fair use provisions of copyright law. Works already made public may be quoted for news reports, criticism, education, research, etc., in compliance with fair practices within the reasonable extent (Article 28 of the Copyright Act).
For example, suppose you uploaded a 20-minute video consisting entirely of clips from “Toy Story 4” on YouTube. It will be a clear-cut case of copyright infringement if the original 100-minute video is simply uploaded in summary form. A simple summary has no creative purpose. How about if you add subtitles or comments about the plot? If it contains a description of characters in the previous episode of Toy Story, an editor’s interpretation of a movie scene, and a review of the director’s story or screen composition, creativity of the new video is recognized.
But, even in this case, it is likely to be deemed a case of copyright infringement. That is because such citations are not recognized to be within a reasonable extent. It may be difficult to be recognized as “fair use” if the main storyline of the video, rather than criticism of the work, has been the main content of the original film, incorporating a fifth of the total run-time. What if we upload a three-minute video with comments instead of 20 minutes? In that case, it will almost definitely be considered as fair use, not a copyright infringement.
However, a case of copyright infringement is not always recognized simply because a significant part of a movie was shown or there is no obvious editorial comment or artistic criticism of that movie. In addition to Article 28, the Copyright Act has another provision for fair use (Article 35-3). To know whether it is fair use, the type and use of the work, the proportion and importance of the portion of the work as a whole that is cited, and the effect of the use on the market or value or potential market or value of the work, should be considered.
Parody is an example. The general view is that copyright infringement will not be recognized if a movie is edited in a way that satirizes the social situation and if it is recognized as a parody. This is because the purpose of the new creation is recognized and it is hard to say that such a parody undermines the original’s market value.
There is also a point to be bear in mind when making fair use of someone’s intellectual property. It is the obligation to state the source (Article 37 paragraph 1 of the Copyright Act). The source may vary depending on the nature of the work, but in the example above, the video will initially need to show the source in the form “This clip is from Toy Story 4.”
In fact, it is not easy for the public to judge what constitutes fair use. On the other hand, the infringement of copyright should not be ignored because it could result in criminal punishment (Article 136).
But YouTube creators should always pay attention to whether their content does not infringe on others’ copyrights, as this platform continues to grow and generate income from the public. Because if I don’t respect another person’s intellectual property rights, my rights will not be respected either.
Yang Sung-ho is an associate at HMP Law and a member of the Tech & Comms team.