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9 April 2021CopyrightAlex Baldwin

YouTube’s ‘Checks’ copyright system: what lawyers think

YouTube has tried various systems to cull infringing content on the website since its inception, but could its latest solve the problem?

With the introduction of the new ‘Checks’ system last month, users can now scan videos for possible infringement prior to being published, shifting onus of the copyright issues onto the uploader and giving them more warning and control over potential issues with their content.

The system hopes to balance the needs of content creators who do not want their content demonetised for fair use of copyrighted material after being published and copyright owners looking to protect their IP.

WIPR spoke with three copyright specialists to gauge their reaction to these changes, whether Checks will help tackle issues copyright owners have with the platform—and ultimately deter infringers.

David Sunshine, member of  Cozen O’Connor’s IP group

“YouTube already has a system in place called Content ID that searches for infringing material after it is uploaded. However, at that point, the creator can be blocked from uploading, demonetised or worse. The new Checks system looks for infringing material before the creator uploads it to the YouTube platform.

“It has the potential to prevent infringement before it becomes a larger problem which can benefit the creator and copyright owner. It benefits the content creator since the system allows the creator to address and potentially cure any issues before the content is published. This takes some of the burdens from copyright owners. Of course, the success of the system is largely dependent on how “smart” the system is at recognising infringing content.

“The new system is likely a response by YouTube to increasing pressure from both content creators and copyright owners. Content creators now have the opportunity to fix any issues that the system flags before the video is published.

“This is a significant benefit since it allows the creators to monetise content immediately. In addition, the system demonstrates to copyright owners that YouTube is taking a proactive approach to combating what those owners consider widespread infringement on the platform.

“Automated systems like these certainly help to deter serial and willful infringers who know that their content will likely be flagged by the Checks system. It also helps inadvertent infringers cure or address any issues before they are blocked or demonetised.

“However, it doesn’t necessarily solve all of the problems, especially the age-old problem of whether content is an infringement of someone’s rights or whether it is fair use.”

Margaret Esquenet, partner at  Finnegan

“The amount of content on the YouTube platform, and the constant addition of new materials, make it very difficult for copyright owners to police YouTube videos on their own. So, a pre-publication screen of content has been a feature rights owners have demanded for a long time.

“While infringing content will be missed and rights owners will need to continue to be on the lookout, assuming it works as anticipated, the Checks system should prevent publication of at least the most obviously infringing content.

“Technological advancements in AI and machine learning probably had a lot to do with the current rollout of the Checks service. This type of service (YouTube indicates that the check will only take minutes) requires substantial processing power and other technical capabilities to do accurately.

“From a policy perspective, social media platforms are under some pressure to make their services more responsive to the concerns of the public, including copyright owners. Examples of this can be seen in the recent US Copyright Office Report on the Digital Millennium Copyright Act, proposed revisions to section 230, Australian and EU regulations regarding the rights of news organisations and the HD Media lawsuit in the US.

“In my view, they don’t deter infringers who are in the business of piracy. Those bad actors simply find a way around the technological speed bumps. And in this case, YouTube apparently does not actually prevent users from publishing a video before the Checks process is complete. But, the Checks service will likely deter the more casual infringer by saving them from themselves.”

Catherine Miller, attorney at  Holland & Hart

“This system appears to still rely on YouTube’s Content ID system, and the new Checks system seems to provide more options for YouTube content creators, but not copyright owners.

“The Content ID program only applies to owners of substantially large copyrighted content, so the new system will not change the issues that smaller content owners have had with the site—copyright takedown notices would still have to be done manually for works outside of the Content ID library.

“I think this feature has been added to give content creators more tools and control over the monetisation of their channels. The COVID-19 environment has prompted some active channels to produce more content, and others have expanded their online presence to retain consumer engagement. Under Content ID, a copyright owner of a work that the system flags could block the video entirely from being viewed, monetise the video themselves, or track the video’s statistics.

“The Checks system gives the video creator options when publishing the video if the system finds any problems, whether it is flagged for copyright or ad suitability, which would allow the video creator to make changes and then maximise viewership and monetisation.

“I think these systems tend to curb infringement to some extent, especially infringement that is unintentional due to common misunderstandings or ignorance about copyright. Large scale pirates are always finding ways to engineer around automated systems. And the system could automatically block some fair use of content.

“Automated systems also limited because they don’t have an all-inclusive library but instead flag content owned by very large players, such as large music publishers. The Checks system does not expand the scope of YouTube’s existing Content ID system for blocking infringing works from being published.”

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