Thursday, February 10, 2022

YouTube Changes Fair Use Policy Thanks to Anime-Loving Creator

 A YouTuber who fought for his rights and a copyright holder who didn’t play by the rules forced a change to YouTube's “fair use” policy.

And that means your videos may be protected in one country, while taken down in another.

YouTuber Mark Fitzpatrick (AKA "Not Totally Mark") received over 150 copyright claim notices recently by Japanese Anime company Toei Animation, the creator of the classic animated series Dragon Ball Z. 

For the past three years, Fitzpatrick’s channel has been largely centered around reviewing anime programs and movies, and he was faced with seeing his channel potentially terminated overnight and losing his audience of 700,000 subscribers. It was a rude awakening. 

To make matters worse, nearly half of the videos that Toei was claiming copyright on didn’t have anything to do with their intellectual property, other than being an inspiration for learning how to draw anime characters in a how-to fashion.

Fighting Back

Fitzpatrick decided he wasn't going to take things lying down and appealed to YouTube, stating that his videos relied on the legal concept of “fair use,” which enabled him to show brief clips of the programs he was talking about.

Toei disagreed, stating that Fitzpatrick’s use of their intellectual property was against Japanese copyright law.

After several emails and videos talking about how unfair YouTube’s takedown policy was, a high-level YouTube executive took Fitzpatrick’s side after looking at his content. 

YouTube agreed that Fitzpatrick’s videos may qualify for a fair use exemption under existing law and requested that Toei provide more information as to why each of the 150 videos violated their IP. 

And here is where things get weird.  

Playing by Different Rules

Rather than following YouTube’s request and providing more information, Toei Animation decided to get clever and violate YouTube’s appeals policy. 

“Toei broke YouTube’s policy,” said Fitzpatrick in a recent video, “and instead of responding to YouTube’s request for justification, they instead used their own tools to manually claim and block all 150 videos behind YouTube’s back. Effectively accomplishing the same goal without taking down my channel.”

The irony here is that had Toei played fairly and worked within the system, chances are that Fitzpatrick would’ve lost his appeal and his channel. 

But since they decided to get clever and work outside of YouTube’s appeals process, the site ruled that while airing the videos may be against Japanese law, a market Fitzpatrick wasn’t even targeting, they would be okay to air in the rest of the world.

Seeking to maintain their policy of being a safe harbor for content creators, YouTube sought to mediate an understanding between Toei and Fitzpatrick, which stated that all 150 videos would be blocked from airing in Japan while being freely viewed in countries like Fitzpatrick’s home nation of Ireland, the UK, and the U.S. 

The Future of YouTube’s Fair Use

Toei viewed Fitzpatrick as a pirate no different from those seeking to air their programming without permission or consideration, and as such, refused to budge. 

This left YouTube in the unenviable position of having to choose a winner, and they chose to block the videos in Japan, but give Fitzpatrick the freedom to post them everywhere else in the world. A first for the video site.

The result is that YouTube will now consider the region of the copyright claimant, and if that nation has fair use laws in place, they will apply. It will also allow them to seek legal remedies outside of their region if the country doesn’t allow for fair use and YouTube merely blocks airing where that is the case.

The TL;DR (too late) of it is that Fitzpatrick gets a much-needed win for his channel and creators around the world. Unless, of course, Tori’s lawyers decide to tie him up in court. Only time will tell.

What do you think of all this? 



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