Copyright & Content ID
YouTube’s Content ID system is synonymous with copyright takedowns. Unfortunately, too many content creators and rightsholders have this incorrect and over-simplistic perception of Content ID. The system does enable copyright infringing videos to be taken down, however, Content ID is best understood in context as a digital rights management tool. Not only does the Content ID system have more functionality than just removing infringing videos, there are other copyright protection tools made available by YouTube, which work in combination with each other. Therefore, successful brand enforcement on YouTube requires creators and rightsholders to understand all the interconnected strands which make up the YouTube content protection spiderweb.
There are three main options which should be explored for protecting copyrights on YouTube:
- Content ID Claim vs Copyright Infringement Notification
- Content ID System
- Copyright Infringement Takedown System
Content ID Claim vs Copyright Infringement Notification
It is vital to note Content ID system is a distinct, separate system to the Copyright Infringement Notification system.
The legal system follows the requirement of DMCA, whereas Content ID provides an alternative approach, based on YouTube policies and terms of services agreed to by the partners who are accepted into the Content ID program.
Content ID is only available to rightsholders who meet the qualifying criteria, once accepted the partners can automatically claim videos. The automation comes in two parts, scanning for content matches and the handling of identified matches. Whilst Content ID is restricted to approved partners, any rightsholder or authorised agent can use the Copyright Infringement Notification system to submit a takedown request.
When a Content ID partner requests a video is taken down via the Content ID system, the reported channel does not receive a copyright strike. A takedown request submitted via the legal process, if successful, does lead to the reported channel receiving a copyright strike as part of the repeat infringer policy.
A Content ID claim therefore does not have the same legal impact as a legal takedown request. The alleged infringer can dispute a claim in good faith without the fear of legal escalation as noted under the legal system of counter-notification.
YouTube encourages uploaders to dispute Content ID claims if they have good faith belief the claim was incorrect for any reason. Due to the automated nature of the system, false matches do occur, combined with automated claim handling, inaccurate claims are an ever-present issue. Disputing inaccurate claims provides feedback to YouTube to help improve the Content ID system, providing the data needed for the machine learning to feed off.
A successful legal takedown request will have the infringing content taken down, whereas Content ID video claim provides numerous options for the rightsholder, which also includes having the content taken down, or often the often-preferred approach in monetising the content. Rightsholders have the choice of takedown methods if they are a partner, the systems work together as a digital rights management package. Rightsholders typically use Content ID as the general tool automatically handling the bulk of the work and the legal takedown process for repeat and bad faith infringers who require stronger, targeted enforcement.
Content ID was designed to better reflect the need of rightsholders and content creators in a world where 300 hours of content are uploaded to YouTube every minute. The system uses ‘digital fingerprinting’ technology to automatically scan YouTube videos for content matches. Content matches are often partial elements within a video i.e. music in the background, a video snippet etc. Uploaders often complain about claims on videos with very short content matches. However, under the Content ID terms, any use of copyright protected works enables the rightsholder to attempt to claim the video. It is not valid to dispute the claim under fair use on the basis on a small percentage of the copyright protected content was used without authorisation.
Given the legal ramifications of the Copyright Infringement Notification system, most rightsholders choose the Content ID system to solely manage and protect their copyrights on YouTube, preferring the automated video matching technology, greater flexibility in rights management and a wider choice of remedies.
Setting Up Content ID
As mentioned, Content ID is an internal system which therefore relies on YouTube’s own set of qualifying criteria to be granted access as a partner. When evaluating an applicant’s request to become a Content ID partner, YouTube will consider two key elements: need and rights ownership.
Firstly, the applicant’s suitability for access to the system and the specific rights management tools included. Content ID is generally restricted to larger channels, rightsholders, trade associations, Collective Management Organisation and multi-channel networks. Unfortunately, this often excludes smaller rightsholders from the benefits of Content ID, as their need for digital rights management is perceived as lower. To remedy this inequity, YouTube has been piloting a ‘Content ID-lite’ system; essentially a watered-down version which lacks certain key features, including the ability to monetise claimed videos.
The second key element is the control of exclusive rights. This excludes vast sways of YouTube content such as mashups, best of videos, top ten lists, video game walkthroughs and let’s plays, music licensed on non-exclusive basis and recordings of performances. Exclusive rights does not exclude the possibility of a video being claimed by multiple Content ID partners. Furthermore, a rightsholder’s exclusive licence can be territorial and not worldwide. If the licence is territorial, the applicant must make this clear in the application process and when uploading references for matching.
If YouTube accepts the application from the potential partner, a formal agreement is sent to the rightsholder be signed as confirmation of partnership in the Content ID system. This document details the obligations of partners, such as not abusing the system and the consequences of such practices, which can ultimately lead to being banned from YouTube.
Once finalised, the rightsholder can start to make reference files. A reference file is the file Content ID uses to scan YouTube and all future uploads for content matches. If the video is entirely covered by exclusive copyright, the uploader can use the video itself as reference to be fingerprinted and then scanned on through the YouTube database. If elements of the video are not protected by exclusive rights, the uploader must ensure to proactively exclude those elements to prevent over-matching. Deliberate misuse of over-matching typically results in YouTube withdrawing access to Content ID. To further prevent over-matching, Content ID provides whitelist functionality. This enables channels with license to use the copyright protected content, or review channels to be exempt from any claims being made against their uploads.
Content does not necessarily need to be uploaded as a public video on YouTube to be protected by Content ID. A reference file for content not on YouTube can be uploaded to the system to conduct matching. This enables rightsholders distributing content on other platforms or protecting an extensive back catalogue to still benefit from the automated scanning technology to protect their copyrights.
As mentioned previously, the automation of Content ID extends beyond just detecting matches to also claiming matched videos. Claiming can be handled manually, although using some level of auto-claiming is recommended to maximise the benefits of the tools. The automated process works by the content manager using a series ‘if statements’ to set what action should be taken when content matches are identified. For example, the content manager can set content-use-based if statement i.e. if the match is over 50% of the copyright protected work then claim the video. The automation can be set in combination with the manual review process, setting specific criteria that if met the content match is set to manual review. Such statements can be further broken down by territory, with different claim thresholds for territories. This enables effective rights management, as the rules set for content can be modified over time to error-correct, rather than making manual determinations for each video match.
Claiming And Disputes
There are three main actions a content manager can take when claiming a matched video, although for certain types of content YouTube provides additional specific use-case options. The main actions are to: track, monetise or block the video.
This is the least active of the options, enabling the rightsholder to monitor the video analytics. Monitoring may be preferable if the video has performed strongly, therefore the analytics can provide some insight for the rightsholder how the content can be used to generate views. Track is a useful tool providing basic analytics for the rightsholder, and the rightsholder is not prevented from monetising or taking down the video in future.
Rightsholders generally prefer to monetise content. When this option is selected, the video will have ads inserted (if not already displaying ads), with all revenue generated being diverted to the rightsholder who claim the video. If a video has multiple claims, the revenue is split between the rightsholders.
Even a short snippet of copyright protected works makes a video likely to be detected by Content ID and can therefore be monetised. Meaning, a one-hour video can have all the revenue diverted to a rightsholder even if the usage of copyright protected works was minor to the overall video. Content creators should think carefully before including any music or audiovisual clips they do not have a licence to use, as it leaves them vulnerable to a Content ID claim. A content creator can edit and re-upload the video i.e. remove the background music – this will then enable the content creator to monetise the video, as the claim would no longer be valid.
This option disables the video form being displayed, either worldwide or in selected territories. Using the Content ID system to claim a video and have the video blocked does not result in the uploader receiving a copyright strike. Therefore, a Content ID claim is a softer approach to taking down infringing content. If an uploader is persistently re-uploading entire videos without any transformative elements it may be advisable to use the legal takedown request. However, in most circumstance, blocking a video via Content ID has the desire effect and the uploader has the chance to receive further information from YouTube about copyright and the Content ID system.
The uploader has the right to dispute Content ID claims, YouTube actively encourages good faith disputes, as false-positives are an inevitably and unavoidable side-effect of automation. Disputing the claim can help the rightsholder adjust their if-statements directing the automation for claiming videos. Also, the machine learning algorithms of Content ID will adjust and the uploader will learn the parameters of the Content ID system. YouTube does warn against abusing the dispute system, however, YouTube also advertises the importance of the dispute system to Content ID for both rightsholders and uploaders.
A claimed video shows in the uploaders YouTube account dashboard, known as YouTube Studio. Once the claim is disputed, the rightsholder has 30 days to respond, or do nothing and let the claim expire resulting in the claimed video being released. The other uploader-favoured option is the Content ID partner releasing the video. The active process of releasing the video is normal when the partner agrees with the uploader’s dispute reasons.
Alternatively, the partner can choose rightsholder-favoured options: upholding the claim or submitting a legal takedown request. Upholding a claim means the partner does not accept the uploader’s dispute and decides to retain the claim on the video. This can be appealed, although it is advisable to seek advice as this can lead to escalation outside the Content ID system. The most drastic option from the rightsholder in response to a disputed claim would be to submit a copyright takedown request via the notification process. The uploader can then file a counter-notification, however, this has all the legal consequences mentioned previously.
Copyright Infringement Notification
Submitting a notice via the Copyright Infringement Notification webform is YouTube’s DMCA compliant legal procedure for requesting the removal of a video. Completing the webform is straightforward, any inaccurate details may delay the processing of the notification, or no action being taken by YouTube as they deem the notice invalid or incomplete.
Once YouTube receive an accurate and complete notice, the review process is normally handled in under three days, typically within 24 hours. When the content is removed, the page displays a ‘video unavailable’ message, which includes the name of the rightsholder who own the copyright. This provides a layer of transparency in the takedown process.
Repeat Infringer Policy
A successful takedown will result in the reported channel receiving a copyright ‘strike’, YouTube operates a three-strike policy. Strikes remain on a channel for 90 days after being issued, after this point the strike ‘expires’ – removed from the account. If a channel receives three strikes within a 90 day period their account is subject to termination, with all content being removed from YouTube and a ban on creating a new YouTube channel. However, even a single copyright strike can have serious consequences for a channel. Live streaming and monetisation can be restricted on a channel after receiving a copyright strike. Live streaming is a promoted feature for YouTube, as such the platform provides greater visibility to live streams in search and suggested videos. Live streams are often used by smaller content creators, especially when their content does not qualify for monetisation under the Content ID system. Live streams generally encourage donations which represents a significant revenue source for streamers.
As a US based company, YouTube champions the principle of ‘fair use’. Unfortunately, despite the volume of discussion regarding fair use online, the concept is often misunderstood, and information given is misleading. YouTube (and their parent company Google) strongly emphasise content creators’ rights under fair use and for every copyright submission, the reporter most take fair use into consideration regardless of the reporter’s location. YouTube has geographically blocked videos which are protected under fair use in the US but not outside. YouTube will occasionally ask the reporter to repeat the statement confirming they have considered fair use in the submission – generally indicating YouTube’s belief the content is protected under fair use.
Under the legal copyright notification system and the Content ID system, fair use is a leading reason cited for counter-notification or claim disputes. YouTube’s defence of fair use extends to providing an indemnity to a small number of content creators, providing them with financial backing to file a counter-notification.
Disputing Copyright Infringement Notifications
Content creators have two options to dispute a copyright notification, they can either ask the rightsholder to retract, or file a counter-notification.
A retraction involves the rightsholder withdrawing the original notification. Rightsholders do err in submitting copyright notices, therefore informing the reporter, with clear explanation of the error can resolve the dispute and have the strike removed. Areas such as music licensing can be complicated, with copyright notifications sent to licenced partners due to the complexity of the circumstances. The reported channel can provide the valid licence agreement and ask the rightsholder to retract the submission. Or, in other circumstances, the reported channel agrees to license the copyright protected content and the rightsholder agrees to retract the notification to maintain a working relationship with their new licensee. A retracted notice is the most efficient way to resolve a copyright notice dispute.
A counter-notification is a legal request and therefore the potential consequences are greater than a retraction. To reiterate, a retraction is the preferred method to resolve a copyright notification dispute. There are two instances when a counter-notification can be submitted by the alleged infringer, when the content was removed by a mistake or misidentification of the content. Fair use, as mentioned, is one of the leading reasons cited in counter-notifications. When submitting a counter-notification, the alleged infringer must consent to their personal contact information being sent to the reporter (either the rightsholder or authorised agent) who filed the copyright notification. This is part of the legal process under DMCA as it enables the rightsholder to seek legal recourse if they choose to pursue the copyright infringement.
Once the counter-notification is submitted, the reporter has a decision to make, whether to initiate court proceedings or accept the counter-notification. If the reporter chooses not to pursue the claim further, or fails to provide evidence of court proceedings to YouTube within 10 days, the content will be reinstated, and no penalty will be applied to the content uploader. If the reporter provides evidence of court proceedings being initiated, the content remains disabled pending the court decision.
Retractions, or claiming videos via the Content ID system are the preferred methods of protecting copyright on YouTube given a counter-notification can escalate quickly into court proceedings and the personal contact information of the uploader is shared with the reporter. Both uploader and reporter should proceed with caution when submitting legal copyright takedown requests or subsequent counter-notifications.
YouTube continues to pilot tools for smaller rightsholders to benefit from and is pushing a subscription model for premium content. Understanding the requirements and limitations of the legal and digital rights management tools can protect rightsholders, content creators and uploaders. The powerful automation of the Content ID system is vital to protecting rights management on YouTube, however, when combined with the weight of legal takedown requests rightsholders can better graduate their response to copyright infringement. YouTube’s tools are not perfect, you only have to search on YouTube to find videos highlighting erroneous content matches. But YouTube has built a suite of tools enabling rightholders and content creators to think strategically about the actions they take to protect and enhance their creativity.