from the surprise! dept
As has been a hot topic of discussion of late, YouTube has a copyright enforcement problem on its hands. To be fair, this problem has existed for some time, but due to some recent transparency from YouTube itself over how often it receives claims and enforces them, the scale of this problem is becoming more widely known. In YouTube’s minor defense: this is difficult challenge to overcome. The platform operates internationally, which means that it often finds itself attempting to navigate the nuances of copyright laws throughout the world. Still, to say it’s not a problem would be silly. And, frankly, YouTube’s creative community is becoming more and more vocal about it.
Take Mark Fitzpatrick, for instance, the operator of the Totally Not Mark YouTube channel. Fitzpatrick releases a video a week covering mostly anime topics, primarily either reviews of anime shows or episodes, alongside some let’s draws for anime images and characters. He has had this channel for several years and has well over half a million subscribers. This is all fairly straightforward fair use stuff. And, yet, Mark was slammed with a series of copyright claims on 150 of his videos over the course of a day or so, resulting in those videos being taken offline.
YouTuber Mark Fitzpatrick of Totally Not Mark has made a name for himself with his manga and anime videos on YouTube. His reviews edit together montages from whatever he’s reviewing or critiquing as he expounds his thoughts in voice over. Mark says his use of copyright material is fair. Toei Animation, it seems, disagrees, and have filed copyright claims on 150 of his videos.
“Over the last twenty-four hours, I’ve sat back in disbelief, shock, and sorrow as my life’s work has been unfairly ripped away from me,” begins Mark in his response video to Toei and YouTube, which, as of writing, has over 400,000 views. “Two nights ago, I received an email notifying me that fifteen of my videos had been copyright claimed and block by Toei Animation,” Mark continues. “One hour later, that number rose to twenty-eight. And when I woke up this morning, it had reached a total of 150 videos that my audience can no longer see and that I can no longer monetize.” All the videos in question were either for Dragon Ball or One Piece, both of which Toei animates. Note that a handful of those videos did not feature any anime clips, but rather, were how-to-draw explainers.
As a result, something like 3 years worth of his work just went poof! Along with a significant chunk of his company’s revenue. This despite Fitzpatrick noting that Toei has actually asked him to do some work in promoting its content directly in the past!
Now, you may be asking how this happens when fair use or fair dealing is a thing. After all, Fitzpatrick operates out of Ireland, where fair dealing is part of the law. Except the claims are coming from a company based out of Japan where there is no such provision in the law and, as we’ve discussed ourselves, copyright law has morphed into an absolute restrictive monster. And Japanese law may be where YouTube’s proverbial head is at.
In his response, Mark says that he ensures that he and his employees adhere to policy regarding fair dealing and fair use as outlined by YouTube, his own country, and other countries. This maybe true; however, copyright law in Japan is…different. I’m no lawyer, but as attorney Keiji Sugiyama explained in a presentation at Fordham University, Japanese copyright law does not have a general fair use provision like the United States.
Instead, Japan has moral rights for any type of work. Sugiyama notes that while the Japanese Copyright Law does lack a general fair use provision, there are certain legal cutouts to allow for parody and private use, as well as for reproductions for schools and libraries.
But not commentary or limited use for things like a let’s draw, it seems. And there is the problem.
Again, it’s not an easy problem to solve, but multi-billion dollar a year companies aren’t supposed to only get softballs pitched down the middle of the strike zone. The platform very much needs to figure out how to enforce copyright claims fairly in situations where the uploader is abiding by his or her country’s laws, but not by the laws of the country where the content originated. Put another way: were Toei an American or Irish animation company, this would be a simple problem to solve by counterclaiming it under fair use.
But in this case? Well, it seems the end result due to YouTube is that an Irish uploader must abide by Japanese copyright law. And that can’t seriously be the world anyone wants.