It's no secret that YouTube, as a company, has had to deal with the ramifications of users posting material that they have no rights to upload. So, when Google and YouTube announced their merger, it should be no surprise that analysts are curious how Google will handle copyright issues.
A recent Wall Street Journal Online post is a discussion
between Harvard law professor John Palfrey and economist Stan Liebowitz. While both acknowledge the need for Google to deal with actual and potential copyright infringement so as to avoid potentially crippling lawsuits, they disagree on what role 'Fair Use' plays and to what extent the company needs to monitor content.
Liebowitz writes, "The purpose of Fair Use was to allow use of works when transactions were impractical. In that spirit we should acknowledge that if you use someone's song in a basement skit that never leaves your basement, that should be Fair Use. But if 50 million people see the skit on YouTube and it generates $1 million in advertising revenues, that should not be Fair Use."
This way of thinking is part of the problem when documentary filmmakers consider utilizing 'Fair Use' – they will self-censor thinking that because they are making a project that some people might actually see, that precludes Fair Use claims; that simple economics are the only issue when considering what constitutes 'Fair Use,' and it is untrue.
The monopoly of copyright protection, that is, the singular rights of the owner to exploit their material, is excepted when the social value of utilizing that material is outweighed. If you are merely trying to copy someone else’s work to make a buck, forget it. If you are making a film that critiques or otherwise employs someone else’s material to tell a important story, you may have ‘Fair Use.’ It is important to not use more than necessary, using the material responsibly, and to understand why using it in the context of your work is necessary.
If you haven’t already, read the Documentary Filmmakers' Statement of Best Practices in Fair Use to get a handle on when and how you can exercise your right of Fair Use.