Webupon

There was this time that I had a conversation with friends about the things we missed the most about the 90s and it turned out that most of us loved Takeshi’s Castle. If you’ve lived through the early 90s in front of the television, it’s more or less possible that you know what I’m talking about. I was one of the numerous kids back then who patiently looked forward to every Sunday to have a good laugh together with my friends.

The Japanese outdoor game show starts off with lots of contestants, who are to pass through several obstacles using their physical and mental skills. Some of the obstacles are seemingly impossible to finish while some just depends on gut feel and luck to overcome. I have no idea why a certain local station stopped televising such amusing show but just recently, another local station started showing new episodes. But I still liked the original Takeshi’s Castle, with the original Filipino hosts. I even planned on buying a copy from the local television station just to bring back the giddy 90s feeling.

That plan never pushed through. And I am thankful it didn’t because now I don’t have to spend big bucks just to see my favorite show again. Another thanks to
YouTube
.

YouTube is the most famous video website where you can view, upload, and share videos across the Internet and even mobile devices. YouTube has a wide sphere of categories covered, such as current events, music videos, press releases, videos on hobbies and interests, or even your own home original videos. This giant leader was developed as a corollary effect of our evolved technology and generation.

Today, anyone can shoot a video, edit, and share them with anyone in the world. Even my 11-year old brother can edit a home video taken by him using a camera phone. It’s not what you’d expect to see in a movie but it is surely a great progress of human activity to find out that a kid can now make a simple video snippet through user-friendly softwares without even having to take full-blown academic courses. YouTube is one provider of easy use and access of short videos.

In our fast-paced techie world today, internet users (those who are familiar with internet features such as blogs, online forums, online stores, instant messaging, etc.) are indeed faced with an overwhelming number of unique innovations of the internet but most of them overlook the fact that they risk themselves as possible victims of copyright infringement or privacy violation though it is quite possible as well that they are violators of copyright and privacy laws. While some are actually aware of these laws and rights guaranteed under such, there are still a large number of internet users who are not accorded with enough knowledge that there are rules and laws in their use and access of the Internet.

For several years now, YouTube has been faced with notices, complaints, and suits concerning copyright infringement. Copyright issues suddenly were the hottest issue within the online video market. Advocate groups of intellectual property law put forward that YouTube and similar sites, by providing a network of video database, is encouraging its users to violate copyright laws.

In defense, YouTube claims that it is protected under the “safe-harbor” provisions of the Digital Millenium Copyright Act (DMCA) of 1998 passed by the 105th Congress of the United States of America. YouTube further provides in its policy wherein a copyright holder may send a copyright infringement notification to the company so that they can take action, discontinue the copyrighted material, and prevent the continued violation of copyright.

A copyright holder, who feels that there is an ongoing need to remove potentially infringing content, may also sign up for its Content Verification Program, which electronically notifies the company, removing any room for error, and significantly increases the speed at which they are able to remove any infringing content.

In the early 1990s, when the internet just boomed, movie and recording industries were the first ones to take active participation in making internet content providers responsible for any copyright infringement. Hollywood argued that internet companies should be held liable if it carries any illegal materials, whether they know it or not. This never happened.

Around 1995, Hollywood faced a strong rival, the ones who introduced the concept of internet, the Bell companies. Hollywood stood for copyright protection while Bell emphasized freedom of expression ideas on the internet. Conflict between these two viewpoints ensued. An impasse was reached in 1997, which forced both parties to submit to a compromise, after a balancing of interests by US Congress: the Online Copyright Liability Limitation Act which was the predecessor of Title II of DMCA (Section 512 of US Copyright Code).

Under such law, “user-generated content” companies are shielded away from liability by a “notice and take down” system. To illustrate, Universal Music Group may notify YouTube regarding a Black Eyed Peas music video, over which they have copyright, uploaded on the YouTube network and that they did not consent to the unregulated coverage and use of such video.

Upon demand, YouTube must take down the video expeditiously. And to be in “safe harbor,” YouTube must have not been aware that the infringing material was there. But under Section 512 (c) (1) (A)(ii), YouTube, in the absence of such actual knowledge of the presence of the infringing material, must also have not been aware of any fact or circumstance from which infringing activity is apparent.

We come to the question: isn’t YouTube aware that its users are actually capable of bringing in pirated content into their arena? Aren’t previous notifications satisfactory substantiation to alert YouTube of infringing activity as to be considered “facts or circumstances from which infringing activity is apparent”?

The principle of “fair use” has likewise come up in the course of defending YouTube business model. According to Electronic Frontier Foundation, an advocate for the public on digital rights issues, fair use is a limitation on the exclusive rights of copyright holders. The US Copyright Act gives copyright holders the exclusive right to reproduce works for a limited time period. Fair use is a limitation on this right. A use which is considered “fair” does not infringe copyright, even if it involves one of the exclusive rights of copyright holders.

Fair use allows consumers to make a copy of part or all of a copyrighted work, even where the copyright holder has not given permission or objects to your use of the work. The public’s right to make fair use of copyrighted works is a long-established and integral part of US copyright law. Courts have used fair use as the means of balancing the competing principles underlying copyright law since 1841. Fair use also reconciles a tension that would otherwise exist between copyright law and the First Amendment’s guarantee of freedom of expression.

Fair use is not clearly defined under the law. Hence, cases are decided upon facts and circumstances surrounding them. Under Section 107 of the Copyright Code, four factors are taken into consideration by the courts in determining whether a use of the material is “fair”:

1. Purpose and character of the use (courts are in favor of it being fair if it’s for noncommercial purpose);
2. nature of the copyrighted work (a particular use is more likely to be fair where the copied work is factual rather than creative);
3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole (court will balance this factor toward a finding of fair use where the amount taken is small or insignificant in proportion to the overall work);
4. Effect of the use upon the potential market for or value of the copyrighted work (if the court finds the newly created work is not a substitute product for the copyrighted work, it will be more likely to weigh this factor in favor of fair use)

The US Supreme Court has described fair use as “the guarantee of breathing space for new expression within the confines of Copyright law”.

DMCA and fair-use principle may have saved YouTube from being legally responsible for hundreds of video clips posted by its users daily without the permission of copyright owners but are these measures sufficient to put an end to accounts of copyright infringement in general?

There is no certainty as to the demise of copyright infringement. It seems that infringement is being redefined today with the advance of science and technology as well as culture and arts. The information highway is an open field for artists wherein they can showcase their talents without having to pay for a fee for bandwidth and webspace.

Fairly enough, YouTube is coming up with possible solutions to create better safeguards against pirated content. Aside from affording copyright holders immediate action upon substantial notification, YouTube is likewise opening its doors to partnership deals with other media companies.

At present, the video-sharing site has successfully contracted with leading content providers such as CBS, BBC, Universal Music Group, Sony Music Group, Warner Music Group, EMI Group, NBA, and The Sundance Channel. These arrangements allow YouTube to carry materials copyrighted by such media conglomerates without risking itself to be charged for copyright infringement even under DMCA.