Where's the Fair Use?

18/02/2016 13:23 GMT | Updated 18/02/2017 10:12 GMT

In 2014, I wrote a series of interviews with YouTubers, content creators and Internet stars called 301+. Of the seven people I spoke to, three were part of a long-standing (and still growing) tradition of online critics who produce reviews and parodies of a film, TV show, video game or other piece of media which integrate clips from the original work. These content creators are protected in doing so without the risk of infringing copyright and facing legal challenges because of the principle of Fair Use.

Doug Walker, an online filmmaker also known as the Nostalgia Critic, recently posted a video detailing the problems he and his fellow reviewers come up against on YouTube when Fair Use is ignored and the DMCA (Digital Millennium Copyright Act) claim system is abused. He asks, "Where's the Fair Use?"

When I spoke to Doug for 301+, he and many of his fellow critics were using Blip to host their videos. Like a lot of fledgling web stars, he had started out on YouTube but quickly ran afoul of its copyright claim system with his show's format. Blip was geared more towards well-produced shows and content, rather than millions of viral one-hit wonders, so it could distinguish between legitimate copyright infringement and instances of Fair Use more readily.

Unfortunately, Blip was unceremoniously shut down last year by Maker Studios, who had acquired the site before itself being purchased by Disney. The platform's numerous active producers were sent scrambling to download all their work and find another host. Many were drawn back to YouTube, hoping that time had allowed Google to refine the copyright claim system. As Doug makes clear in his video, this is not the case and the problem has worsened as film studios have caught on that they can use bogus DMCA claims to censor negative reviews and even profit doing so by diverting content monetisation to them.

Whilst Fair Use is paid lip-service by YouTube, their system allows film studios to file scattershot claims, forcing content creators to jump through hoops and lose money restoring work that is obviously protected under Fair Use. But as Google has been pushing YouTube Red, a conscious effort to shift its source of income from content creators to viewers, and is working to make original shows, it has no incentive to fix the system. The current arrangement keeps Google legally protected and in favour with powerful studios at the expense of a subsection of its producers, who have few alternatives to make a living from online video.

As Doug says, this is an issue of free speech as much as it is about Fair Use or what's right for the content creators. Online video has proven to be one of the Internet's most disruptive frontier's, shaking the ground beneath the feet of Hollywood and television more than any other. It's taken the power of publicity away from marketing execs and carefully-controlled promotional work and allowed honest opinions to be heard. It can encourage you to see a movie that you may never have heard of otherwise and it can save you time and money on a film that had a good trailer but turned out to be underwhelming. All this means a more informed consumer and, when that happens, the studios have to work harder for your money and produce better films.

Surely that's what an industry built on entertainment would want.