The battlelines have been drawn in Australian politics, with the Federal Election looming on September 7th. Social media, of course, is playing a huge part in this election, with the Twittersphere and Facebook inundated with election material from campaigning politicians.
So it is no surprise that one of the latest social media battles has been fought on YouTube using takedown notices and allegations of copyright infringement.
Here at IP Whiteboard, we didn’t see the video that is the centre of this storm before it was taken down. According to a news report (SMH and ZDNet), the Labor party posted a video on YouTube on Tuesday morning, called “The Liberal’s New Hope (for power)”. This video was a spoof of a Liberal Party election campaign ad “New Hope”. It used the same footage as the original Liberal video, but a different voiceover.
The original Liberal Party voiceover begins “Australia has always been a land of opportunity, a place where every day can be a great day. And we’ve grown as a nation because we believe in having a go …“ The Labor Party voiceover begins “Australia has always been a land of opportunity, and the Liberals have an opportunity to take power again. And we’ll do anything it takes to get there. We’ll say we’re in it for the kids, but we’ll actually cut the schools kids bonus ...”
By Wednesday morning, the Labor Party’s video had been pulled from YouTube. Christopher Pyne told Fairfax Media that the Liberal Party had “alerted YouTube to the offending ad which was a violation of the terms of service for gross breach of copyright. This was upheld by YouTube and the ad was removed.” On Wednesday, Mr Pyne said “Today YouTube have taken down a offensive ad from the Labor Party that was a negative attack on the Liberal Party. So YouTube itself have removed an ad that they regarded as offensive”.
We don’t know much about the specifics of the Liberal Party’s copyright complaint or the content of the videos. And of course, IP Whiteboard is politically neutral, so we won’t venture any comments. Rather than discuss that video, we thought we might set out the legal framework for parodies and the YouTube takedown process.
Parodies on YouTube
Does a video which is posted on YouTube that uses or copies other material, such as a song or video, infringe copyright? The answer is that it depends on the particular circumstances of what is copied and how it is used. It may also depend upon which country’s laws apply. Here, we will focus the use of material in a parody video.
In the USA, use of copyright material will not infringe copyright if that use is a “fair use”. Parody has been recognised as a form of “fair use” since the famous case of Campbell v Acuff-Rose Music Inc, 510 US 569 (1994). In that case, the rap group 2 Live Crew borrowed from Roy Orbinson’s song “Pretty Woman”. The 2 Live Crew song was a “fair use”. It was transformative, only used a small portion of the original song and provided criticism of the original song. On the other hand, in Dr Seuss Enterprises v Penguin Books USA, Inc. 109 F 3d 1394 (9th Cir, 1997), the use of a Dr Seuss Book and style to comment on the OJ Simpson Trial (to create “The Cat NOT in the Hat”) was not found to be a fair use.
In Australia, a fair dealing with copyright material for the purpose of parody or satire is not an infringement of copyright (sections 41A and 103AA Copyright Act 1968 (Cth)). The terms “parody” and “satire” were left undefined and the exception has yet to be considered by the Australian courts. The scope of the exception is somewhat uncertain, including whether or not the US fair use cases would be applied in Australia.
In the UK, parody is not currently a fair dealing exception. However, following the Hargreaves Review, and a consultation process, the Intellectual Property Office stated its intention to introduce a parody exception (see our posts here and here). In June 2013, the Intellectual Property Office released the proposed parody fair dealing exception (here).
Political take-down notices
According to ZDNet, Shadow Education Minister Christopher Pyne said that “having a political advertisement removed is unprecedented in Australia”. But is it unprecedented overseas? Not really!
Most famously, in the 2008 US presidential campaign, a number of John McCain campaign videos were taken down following copyright notices. The John McCain Campaign argued that the videos were removed for political reasons and sent a public letter of complaint to YouTube, raising issues about the take-down process, saying that its videos that were taken down were obvious cases of fair use, and suggesting that YouTube respond differently. YouTube responded saying that “the real problem here is the individuals and entities that abuse the DMCA takedown process. You and our other content uploaders can play a critical role in helping us to address this difficult problem…You can file counter-notifications…”. YouTube also suggested working together with McCain to reform the law.
In another example, a video of President Obama released by the Mitt Romney campaign was taken down following copyright claims by music publisher BMG Rights Management. The video features President Obama singing a few words from Al Green’s “Let’s Stay Together”.
YouTube’s take-down procedure is often criticised for its ability to be abused by content owners, as the videos are taken down automatically before the uploader has a chance to respond. On the other hand, there is a massive prevalence of blatantly infringing content on YouTube, which the take-down procedure (which follows the US Digital Millennium Copyright Act (DMCA) notice and take-down procedure) is intended to combat.