How TikTok creators can stay on the right side of copyright law

Sites such as Tik­Tok and Twitch have expe­ri­enced a big increase in users over the past year, but that has gone hand in hand with an increase in copy­right strikes and take­down notices. As more and more peo­ple become online con­tent cre­ators, what should social media plat­forms and users be doing to edu­cate them­selves about intel­lec­tu­al prop­er­ty?

Locked down and work­ing from home, many peo­ple have turned to Tik­Tok, Twitch and YouTube to while away the time. It has even become a side hus­tle for some.

Tik­Tok user num­bers increased by an esti­mat­ed 85.3 per cent in the Unit­ed States in 2020, accord­ing to eMar­keter, with almost a fifth of adults (65.9 mil­lion) access­ing the app at least once a month. 

In the UK, a sur­vey by Ofcom revealed that, in April, a third of adults were con­sum­ing more video con­tent online than ter­res­tri­al TV. Not only that, two in five were either broad­cast­ing or upload­ing their own con­tent, while 17 per cent said they were earn­ing rev­enue via vlog­ging. 

In pur­suit of viral fame, Tik­Tok users are able to avoid copy­right infringe­ment by select­ing songs from the app’s library of music as the ByteDance-owned plat­form has been sign­ing licens­ing agree­ments with some of the major music labels. If users choose from the library, they should nev­er be sub­ject to a take­down request. Nonethe­less, Tik­Tok still had to issue 10,625 take­down notices in the first half of last year and 86 per cent led to removal, accord­ing to its lat­est trans­paren­cy report pub­lished in Sep­tem­ber. 

Copy­right infringe­ment on YouTube is a bit more of a mine­field. The plat­form uses an auto­mat­ic copy­right fil­ter, Con­tent ID, which scans videos and com­pares their con­tents to a data­base of mate­r­i­al sub­mit­ted by copy­right hold­ers, pri­mar­i­ly record labels, and film and TV pro­duc­tion stu­dios. Just show­ing a few sec­onds of copy­right­ed mate­r­i­al could result in a user being auto­mat­i­cal­ly issued with a penal­ty. 

A fair reaction to IP problems?

How­ev­er, there are issues with copy­right fil­ter­ing. Tools such as Con­tent ID can ham­per some forms of cre­ativ­i­ty; the reac­tion video is an exam­ple. This involves watch­ing oth­er peo­ple lis­ten to an old song or watch a clas­sic TV com­e­dy for the first time and has become increas­ing­ly pop­u­lar over the last year of lock­downs.

While includ­ing a full song, TV episode or clip in a reac­tion video with­out a licence is an obvi­ous infringe­ment, YouTube’s Con­tent ID tool can dis­cour­age fair use. 

The platform’s fair-use pol­i­cy states that copy­right­ed mate­r­i­al can be added to if the con­tent cre­at­ed is “trans­for­ma­tive”. When it comes to reac­tion videos, sim­ply describ­ing a song or what’s hap­pen­ing in a clip would prob­a­bly not be con­sid­ered fair use. But as the 2017 case of Matt Hos­sein­zadeh ver­sus Ethan and Hila Klein showed, if a reac­tion video includes a cri­tique or com­men­tary, then it might be deemed fair use. 

The case saw Hos­sein­zadeh sue the Kleins for a video they cre­at­ed cri­tiquing his orig­i­nal video, argu­ing it was copy­right infringe­ment. But the Kleins con­tend­ed fair use and the judge sided with them, although say­ing this wasn’t a “blan­ket defence”. How much of an orig­i­nal work can be shown to jus­ti­fy fair use is like­ly to depend on how much of a song, video or clip is need­ed to put the cri­tique or com­men­tary into con­text for view­ers. 

Clear­ly, decid­ing what con­sti­tutes fair use on a case-by-case basis, rather than rely­ing on an algo­rithm to flag copy­right infringe­ments, would be an ardu­ous process. Still, YouTube could arguably be doing more to pre­vent copy­right infringe­ment from occur­ring in the first place.

“There’s a com­mer­cial bal­ance that needs to be struck between [plat­forms] func­tion­ing as a valu­able method of con­tent dis­cov­ery and the mon­eti­sa­tion and con­trol of that con­tent. But there’s no rea­son why [plat­forms] can’t work to bet­ter edu­cate users over how third-par­ty con­tent can and can’t be used,” says Steve Kuncewicz, part­ner and head of cre­ative, dig­i­tal and mar­ket­ing sec­tor at com­mer­cial law spe­cial­ist BLM. 

“Poli­cies are one thing, but ensur­ing they’re adhered to should go beyond a vague threat of enforce­ment and account sus­pen­sion.”

Kuncewicz sug­gests that plat­forms should be build­ing aware­ness of the legal risks around infring­ing copy­right into user expe­ri­ence and as part of the sign-up process. 

“We’ve seen plen­ty of work done to edu­cate users on when to take action in the event of a pri­va­cy or harass­ment issue, yet there’s very lit­tle atten­tion being paid to the fun­da­men­tal issues around the shar­ing of third-par­ty con­tent,” he says.

Confusing copyright law

A big prob­lem around edu­ca­tion is cur­rent poli­cies are often vague­ly word­ed and can be con­fus­ing because copy­right laws dif­fer between juris­dic­tions. For this rea­son, it would be “unre­al­is­tic” to expect plat­forms to pro­vide detailed infor­ma­tion on whether copy­right exists and what con­sti­tutes an infringe­ment, argues Emma Ward, part­ner at IP solic­i­tors firm Nel­sons.

“In the UK, copy­right will only be infringed if a sub­stan­tial part of a work has been repro­duced. This becomes a par­tic­u­lar­ly thorny issue when con­sid­er­ing how that applies to the use of GIFs and memes,” says Ward. 

Video reac­tions to meme com­pi­la­tions have racked up hun­dreds of thou­sands of views in recent months. In Amer­i­ca last Jan­u­ary, two YouTu­bers were each threat­ened with a $3,000 fine by Jukin Media for the use of a sin­gle meme in a reac­tion video, before com­ing to an agree­ment with the enter­tain­ment licens­ing group. Under the US Dig­i­tal Mil­len­ni­um Copy­right Act, plat­forms are shield­ed from lia­bil­i­ty. 

Mem­bers of the Euro­pean Union have until June to imple­ment a divi­sive copy­right direc­tive that will require plat­forms to take more respon­si­bil­i­ty and not sim­ply fil­ter or remove copy­right­ed mate­r­i­al when request­ed to do so by copy­right hold­ers. Oppo­nents of the direc­tive argue it could lead to a meme ban. 

“The pro­ce­dures that are cur­rent­ly in place to address copy­right issues are very much reac­tive, deal­ing with com­plaints as and when received,” says Ward.

Who should be responsible for IP?

Tim­o­thy Watkins, IP expert at Har­bot­tle & Lewis, believes the dif­fer­ing nature of copy­right laws is why con­tent cre­ators also need to be tak­ing more respon­si­bil­i­ty for what they post.

“In real­i­ty, the aver­age user isn’t going to spend time read­ing and becom­ing famil­iar with their country’s copy­right laws. Some plat­forms have tried to demys­ti­fy the laws by cre­at­ing plain-lan­guage arti­cles, guide­lines and, in the case of YouTube, its online Copy­right School. These can be help­ful, but they still require users to actu­al­ly read them. So there’s a lim­it to what plat­forms can do to edu­cate their users and some of the respon­si­bil­i­ty has to lie with con­tent cre­ators them­selves,” argues Watkins. 

Nav­i­gat­ing the world of IP can be fright­en­ing for any con­tent cre­ator, but espe­cial­ly teenagers and young adults who are only using plat­forms for fun and to enter­tain view­ers. 

Ward says con­tent cre­ators should ide­al­ly seek legal advice before start­ing out, though of course this isn’t always fea­si­ble. She adds that the least they can do is to be famil­iar with each platform’s terms and con­di­tions, as well as com­mu­ni­ty guide­lines, before post­ing con­tent. That way they can avoid inad­ver­tent­ly infring­ing copy­right. 

“Unli­censed use of third-par­ty con­tent can be an expen­sive and stress­ful error if that third par­ty then decides to sue,” she warns. “Users should remem­ber that infring­ing copy­right isn’t just about hav­ing a post tak­en down.”

Strik­ing the right bal­ance between plat­forms empow­er­ing their users to be cre­ative and enter­tain view­ers, and respect­ing IP rights is “going to take a lot more work on all sides”, Kuncewicz con­cludes.