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You’re trying to argue that just because the music happens to be there that it has no relevance to the fact he makes money or not. I get that.

Fair use applies for cases like holiday videos shared between family & friends (not the case here), and incidentals.

You’re trying to argue that this is incidental. And I see what you’re trying to get at. But unfortunately the definitions of what constitutes news and/or educational programming are usually pretty clear cut. And this does not fall into either of those criteria. And they are the only things protected under incidental usage. There’s a comment somewhere in the thread that details a specific definition of educational content. The author of that comment agrees it would not fall under that category.

Once you remove fair use, it becomes completely black and white.

He made money from the video. The video contains music. Rights holders must be paid.

That’s it. That’s the copyright law viewpoint once you eliminate fair use.

> I don't know why you've argued this. Of course he could have removed the audio, but what does that have to do with fair use?

We wouldn’t be having this discussion about his specific video if he’d taken action to remedy the problem before it became a problem.

If I were a lawyer for a rightsholder, I would make the argument that there were many options for him to avoid using my clients copyrighted material and he did none of them. He could have avoid this situation but chose not to.

What makes him so special? Why can’t he edit his video like every other media company?

Edit - this is why the incidental provision was created in the first place. News & educational content may not be able to edit out the audio without jeopardising the core of the content - e.g. a live news report where there’s cars driving by playing music in the background.

1 comments

> You’re trying to argue that this is incidental

I specifically said I'm not.

> > I'm not claiming the arguments against your claim are correct - I haven't even watched the video. I'm saying that whether infringement occurred is not a simple matter that can be determined by algorithms

> [news and/or educational programming] are the only things protected under incidental usage.

In a casual search, every source I checked disagreed with this claim. Examples:

https://www.copyright.com/blog/music-licensing-fair-use/

> There are certainly people who argue – and there are credible arguments to be made – that the incidental picking up of the music in the background during a documentary film can qualify for fair use. When you’re talking about incidental music picked up, you’re more likely to qualify for fair use if you’re not focusing on that music, it plays for a short period, and it’s in the background.

https://cmsimpact.org/code/code-best-practices-fair-use-onli...

> Fair use protects the creative choices of video makers who seek their material in real life. Where a sound or image has been captured incidentally and without pre-arrangement, as part of an unstaged scene, it is permissible to use it, to a reasonable extent..

Ah. I think I know what the problem is here.

I’m based in the UK and it seems Fair Use applies somewhat different here thanks to the Copyrights act in 1988.

We have a fair dealing clause[0] here.

> Certain exceptions only apply if the use of the work is a ‘fair dealing’. For example, the exceptions relating to research and private study, criticism or review, or news reporting.

[0] https://www.gov.uk/guidance/exceptions-to-copyright

Fair dealing comes from the POV I’m trying to get across.

> > I'm not claiming the arguments against your claim are correct - I haven't even watched the video. I'm saying that whether infringement occurred is not a simple matter that can be determined by algorithms

Yeah I somewhat agree with this. I’m pretty sure I said so somewhere (it might have been a slightly different comment thread, apologies if I didn’t make that clear).

The existence of a copyrighted work can be detected by an algorithm (although the accuracy is debatable in some cases). Whether it falls under fair use cannot.

As stated, Fair Use is decided on a case by case basis. But it’s assumed the rights holder is correct in their claim until the court decides.

In any case, before a counterclaim is approved by the court or if the court sided with the rights holder, then black and white copyright law comes into play.

Still, if the content creator took action to avoid including potentially copyrighted material, like everyone else does, then we wouldn’t be having this discussion.

Edit - before you pick up on it, criticism/review is a specific critical review of the work in question. As that doesn’t apply here, news/educational fair dealing then becomes the question. And then all those points I’ve been trying to make come into play. Could he have done things differently? What was the purpose of the content? Etc etc.

> I’m based in the UK .. We have a fair dealing clause here.

I know, and I'm familiar with the distinction. I assumed you were as well, and would be using the term of art for whichever system you meant.

> The existence of a copyrighted work can be detected by an algorithm .. Whether it falls under fair use cannot.

Thanks for the information.

Also, from one of your linked articles.

> If you’re going to rely on fair use, the bottom line is, you need to factor in how much risk you’re willing to take. Why? Because some uses are riskier than others and the risk of a failed fair use defense is copyright infringement.