In July 2024, a wave of copyright strikes hit several Indian YouTube channels hosting news and other informative content including notable figures like Ravish Kumar, Ajit Anjum, Abhisar Sharma, and Sakshi Joshi, as well as news outlets such as Bolta Hindustan, the Probe, and Dastak Live News. Content creators like Mr. Reaction Wala were also affected. These strikes, issued by Ziiki Media Entertainment—a South African music aggregator, distributor, and production company—resulted in the demonetization or removal of videos, even though the sounds and clips in question were in the public domain. A challenge to these copyright strikes revealed that most of the copyright strikes were frivolous and were a result of Ziiki Media’s AI-based content monitor tool ‘Content ID’ going haywire.
Copyright law serves the dual objective of compensating the creators for the labor and capital that went into the creation of an artistic piece and encouraging others to build freely upon the ideas and information conveyed by a work. It also allows people to make some free use of the copyrighted material, and in furtherance of the second objective the copyright law includes the doctrine of Fair Use.
The doctrine of fair use allows the exploitation of copyrighted content sans the owner’s permission for purposes such as fair review, criticisms, educational purposes, etc. In this case, the concerns this article the news channels got a copyright strike, despite being protected by the doctrine of fair use. This article will analyze the doctrine of fair use and its applicability in light of copyright strikes on Indian news YouTube channels.
Understanding Fair Use: The Bulwark Against Copyright Monopolies
The copyright law protects the original literary, dramatic, musical, artistic, sound recording, and cinematographic work, and in the furtherance of the same, it attributes certain exclusive rights to the artists and the creators, and by virtue of these rights the creators establish a monopoly over their works. Monopolies of any sort are detrimental to the promotion of innovation in any market set-up, therefore, there are provisions in the copyright act, to make sure that in certain cases such as, for research, dissemination of education, criticism, and reporting, copyrighted content might be accessed devoid the copyright owner’s consent. One of the paramount exceptions is the doctrine of fair use.
The fair use doctrine is intended to allow certain unconsented uses of copyrighted materials to advance the public good, despite the copyright holder’s statutorily granted exclusive rights. The Berne Convention, under article 9(2), vouches for the permitting use of unauthorized works in certain special circumstances. Under the Copyright Act, of 1957, the doctrine of fair use is mentioned under section 52, broadly the sub-section allows things like private or personal use, research, criticism or review, and reporting of current events.
Though the instances of fair use find their source in the legislation, courts play a pivotal role in the determination of what constitutes fair use. In the case of Ashdown v Telegraph Groups Ltd., the court laid down a 3-step metric for the determination of fair use, firstly, the unauthorized use shall be commercial competition of the exploited work, secondly, the work shall already be exposed to the public and thirdly, the quantum of duplication. In the extension of the same in the case of Super Cassettes Industries Ltd v. Hamar Television Network Pvt. Ltd. & Anrs, the court laid down an extensive 13-point formula for the discernment of fair use.
The courts keep in check the criteria laid down in the precedents for the ascertainment of fair use.
The Role of Fair Use In News Reporting
Under the copyright act, news reporting is mentioned under section 52(1)(a)(iii), which mentions that any reporting of current events and current affairs, including the reporting of a lecture delivered in public, would be considered fair use. It is apparent from the wording of the section that an exception is given only when there is a reporting of a current event and not an event in history.
Additionally, while making use of any copyrighted content for the reporting of a current affair it must be made sure that only the work which is necessary for the reporting of the current event shall exploited, and only work related to the current event shall be utilized. This exception shall not become a harbor of copyright exploitation in the garb of news reporting.
In the case of New Delhi Television Ltd v. ICC Development Ltd & Anr, the court laid down a two-fold method for ascertaining whether or not a certain act of reporting would qualify as fair use. Firstly, the nature of diffusion of information shall be result-oriented and simultaneously it shall be checked if the information disseminated was in connection with a sporting event. To put it simply, any analysis or review of an event shall be to meet the result of making the masses aware of the same and if it is merely criticism or review, without an intention of reporting, then the courts have to power to order injunction regarding the same.
Conclusion: A Caution Against AI Utilization
The most plausible conclusion based on the aforementioned discussion at this juncture is that the determination of fair use is an intricate process, which is addressed by the courts, which is also conclusive of the fact that such determination necessarily involves human agency. The copyright strike on Indian YouTube corroborates the importance of the human agency in the ascertainment of fair use. Ziiki Media was utilizing an AI-based tool called Content ID which made erroneous copyright claims against the Indian YouTube, channels that resulted in both monetary and reputation loss to the YouTube channels. This incident unveiled the phenomena of AI utilization for copyright strikes. The determination of infringement and fair use is an intricate process, which is not graspable by AI presently, and YouTube and other platforms need to refine their systems to ensure copyright claims are accurate and justifiable, preventing future mishaps.
Authors: Sneha Makaria, Shreeya Sharma & Amitesh Mishra