A question about copyright on youtube

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A question about copyright on youtube

Postby Smeghead » 14 Oct 2014, 01:14

Ok so I've been going through Youtube's copyright policies pages, documents and related links for an hour now, and I've so far been unable to find what their stance on music covers is.

This is a bit important for work as the school where I work has a lot of music students who perform and it would be nice for us to be able to post some of the stuff they do. Maybe not whole songs but rather montages or something in order to show off what the students are actually capable of.
While I have posted some of their covers in the past and they haven't been flagged I would like a firm statement, to know if I'm in the right doing so or if we've just been lucky to slip between the cracks so far.

I've looked around in youtube's help pages which are very unhelpful and questions you send to the staff has to fit into very specific categories (and my question doesn't seem to fit in)

So I was wondering if anyone here might know what their stance is on this subject.
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Re: A question about copyright on youtube

Postby Valkyrie-Lemons » 14 Oct 2014, 01:48

I believe that if it's an original recording (although the recording can be of a cover of a song) then it falls under fair use; since you are technically using it for educational (and I assume non-profit*) purposes, although that line is slightly blurry.

However the next problem is I don't know if YouTube would use US law or Swedish law when a copyright claim is made against you; I assume it's US law.

Ultimately I'm not that sure (sorry). I would send YouTube support an e-mail, even if you have to send it to the wrong department (although I'd try to send it to their legal department) you can simply ask them to forward it on to the relevant person(s).


*i.e. your school is a state run secondary/high school so the videos can't be seen as promotional videos to attract new paying students and/or funding.
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Re: A question about copyright on youtube

Postby Smeghead » 14 Oct 2014, 01:54

Well it is a community collage which is semi-state run so our material is kind of promotion material as well (although the students don't pay us as such; we get money from the state based on the students). But we don't run ads or anything on our youtube material that would make us money directly off the content
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Re: A question about copyright on youtube

Postby Jimor » 14 Oct 2014, 05:11

Fair use has (essentially) nothing to do with whether copyrighted music is allowed on YouTube or not. The ONLY thing that matters to them is whether the original owner (or an agent for the owner such as a record label or Content Management Network) has a deal with them to flag the content and pass along ad revenue.

If such a deal is non-existent, then the music falls into essentially 2 categories for practical purposes. One is that the owner doesn't want to accept YouTube's terms, and thus they either have entered music data into YouTube's content ID system to be flagged for removal, or will simply request a DMCA takedown of some kind to have it removed on a case-by-case basis.

The second category is owners who don't care, either in a positive manner (putting their work into the creative commons), or in a negative manner (simply won't bother to exercise their rights). Generally no problem for the uploader in these cases.

In the vast majority of cases with popular music covers your school may post, you'll be covered by YouTube's agreement with the artist/label, and being "flagged" simply means they'll put ads and pass along the revenue, but does not count as a copyright violation because you're essentially a sub-licensee of the music via YouTube. Click the "yes I know this belongs to somebody else" box (or not) and it won't count against the account.

If anything falls into the verboten category, you get a chance to dispute, but if the appeal fails, it will be deleted, and generally it takes repeated violations in this manner to get an account suspended (always making allowances for times when YouTube slams the banhammer out of nowhere).

Finally, one fairly recent wrinkle is that YouTube has started to allow those with partner accounts to upload their covers of music, and claim part of the revenue stream, assuming a license exists between YouTube and the song owner.

The thing to remember about YouTube is that while their policies exist under the general umbrella of copyright law, what's really happening in practice most of the time is a result of a LOT of disputes over the years that have been settled out of court and via negotiated agreements. For example, as a private company, YouTube never has to acquiesce to a Fair Use argument because they have a right to not be dragged into court between the uploader and the original owner to decide the merit of the particular case.

This is of course a vast simplification of all the issues despite its length, and standard I Am Not A Lawyer caveats apply, but after keeping an eye on the landscape for a few years, I'm fairly confident I have the gist of it down to a first order approximation here.
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Re: A question about copyright on youtube

Postby Smeghead » 14 Oct 2014, 05:18

I know that, but that sounds more like how it is for the usage if material straight from the artist and not covers where in the students play and sing and nothing prerecorded is used from the original artist.
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Re: A question about copyright on youtube

Postby Elomin Sha » 14 Oct 2014, 05:25

I had a DMCA filed against me with Morgan singing In the Navy at an old Desert Bus. I didn't bother to contest it as a cover.
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Re: A question about copyright on youtube

Postby Jimor » 14 Oct 2014, 05:47

Smeghead wrote:I know that, but that sounds more like how it is for the usage if material straight from the artist and not covers where in the students play and sing and nothing prerecorded is used from the original artist.


Both are covered under their contracts now. The original recording via the labels, and the songwriting via the publishing rights groups like BMI and ASCAP. For a while, they did treat covers like they did use of the original recording, and sent all the revenue straight to the label bypassing the songwriter component, which was wrong in a whole lot of messy ways, but their system is a bit more robust for handling a variety of claims on the same property these days. This also applies to multiple songs within the same clip. Before, all the revenue went to whatever song was claimed "first".

I have one video I uploaded a couple of years ago that was a local music awards show in its entirety. Despite 99% of the 4 hours of content being original songs by local artists, YouTube's content ID system flagged a 10-second sample of a major-label song played by the venue between sets as the "owner" of the video.

It's still messy, and doesn't properly handle some types of content, so some things are getting better, and others worse as everybody tries to play catch up on this issue, but there are signs that we may eventually get to the point where the sum total of the creation gets counted so that both content that's being re-purposed, and content that's original to the new work, both get respect legally and financially.
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Re: A question about copyright on youtube

Postby CSt » 14 Oct 2014, 06:08

Jimor wrote:In the vast majority of cases with popular music covers your school may post, you'll be covered by YouTube's agreement with the artist/label, and being "flagged" simply means they'll put ads and pass along the revenue, but does not count as a copyright violation because you're essentially a sub-licensee of the music via YouTube. Click the "yes I know this belongs to somebody else" box (or not) and it won't count against the account.


Is there such an agreement? Because I had a look at the site and there was no clue to something like that on there. Frankly I doubt there is such a thing, as it would make Youtube the licensing body for their content.

Smeghead wrote:This is a bit important for work as the school where I work has a lot of music students who perform and it would be nice for us to be able to post some of the stuff they do. Maybe not whole songs but rather montages or something in order to show off what the students are actually capable of.
While I have posted some of their covers in the past and they haven't been flagged I would like a firm statement, to know if I'm in the right doing so or if we've just been lucky to slip between the cracks so far.


Youtube doesn't care about rights, they only act once they are prodded. And the people who are doing the prodding are license are music labels or more typical RIAA and their minions.
Most covers do not fall under fair use, so you need a license to upload them. Technically you need a license to record them and you need a license if you play them in front of an audience. You have to remember that even if they don't use any part of the original, they still use words they haven't written and playing notes they haven't composed. So even if you defended against a claim by the artist, you could still get hit by the composer or the lyricist (This could be all the same person). Even better, since you want to upload videos, you need written permission from your students to do so as well since they now are part of that work as well.
You could continue to slip under the radar forever but you also could get hit tomorrow. There should be a national licensing body in Sweden (this one I think?) who you could talk to about their conditions and license your videos.
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Re: A question about copyright on youtube

Postby Jimor » 14 Oct 2014, 06:27

CSt wrote:
Jimor wrote:In the vast majority of cases with popular music covers your school may post, you'll be covered by YouTube's agreement with the artist/label, and being "flagged" simply means they'll put ads and pass along the revenue, but does not count as a copyright violation because you're essentially a sub-licensee of the music via YouTube. Click the "yes I know this belongs to somebody else" box (or not) and it won't count against the account.


Is there such an agreement? Because I had a look at the site and there was no clue to something like that on there. Frankly I doubt there is such a thing, as it would make Youtube the licensing body for their content.


This is what the dispute over the Summer between YouTube and Indie labels was all about. YouTube wants to force them all to accept the exact deal they made with the major labels. So yes, these deals exist.

CSt wrote:
Smeghead wrote:This is a bit important for work as the school where I work has a lot of music students who perform and it would be nice for us to be able to post some of the stuff they do. Maybe not whole songs but rather montages or something in order to show off what the students are actually capable of.
While I have posted some of their covers in the past and they haven't been flagged I would like a firm statement, to know if I'm in the right doing so or if we've just been lucky to slip between the cracks so far.


Youtube doesn't care about rights, they only act once they are prodded. And the people who are doing the prodding are license are music labels or more typical RIAA and their minions.
Most covers do not fall under fair use, so you need a license to upload them. Technically you need a license to record them and you need a license if you play them in front of an audience. You have to remember that even if they don't use any part of the original, they still use words they haven't written and playing notes they haven't composed. So even if you defended against a claim by the artist, you could still get hit by the composer or the lyricist (This could be all the same person). Even better, since you want to upload videos, you need written permission from your students to do so as well since they now are part of that work as well.
You could continue to slip under the radar forever but you also could get hit tomorrow. There should be a national licensing body in Sweden (this one I think?) who you could talk to about their conditions and license your videos.


In the U.S., there's a weird mix of "mechanical" royalties and site licensing that controls most of these issues with cover songs. To make a cover recording, you don't need permission, but you must turn over a fixed amount per sale to the songwriter. I don't know where streaming revenue comes into that equation, though. And in live venues, it's the venue that must pay for an annual license with the publishing companies that will then allow artists to cover songs under their roof. These rights organizations get VERY aggressive in enforcing this, and it would be easy to find nightmare cases by Googling "ASCAP/BMI site license problems".
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Re: A question about copyright on youtube

Postby CSt » 14 Oct 2014, 07:09

Jimor wrote:This is what the dispute over the Summer between YouTube and Indie labels was all about. YouTube wants to force them all to accept the exact deal they made with the major labels. So yes, these deals exist.


Here's my problem:
You keep referring to a contract you say exists. If such a contract existed this would be great, as it would seem to be made exactly for problems like ours. Unfortunately I don't think this contract says what you think it does if it exists at all. After googling "google indie labels" I got this interesting article which puts the dispute over the summer in a completely different field with no indication there might be more. I even looked at the proposed licensing agreement where once again there was nothing about sublicensing included. On the contrary, if this was the contract you meant, the discussion is over as it does none of the things you said.
So please, give me any evidence about that deal you are so sure exists.

Jimor wrote:In the U.S., there's a weird mix of "mechanical" royalties and site licensing that controls most of these issues with cover songs. To make a cover recording, you don't need permission, but you must turn over a fixed amount per sale to the songwriter.


Unfortunately licensing is national. He can't make a deal with the american licensing body if there is one in Sweden. And that one follows swedish law.
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Re: A question about copyright on youtube

Postby Master Gunner » 14 Oct 2014, 08:19

For what it's worth, my experience uploading Desert Bus videos/"covers" to YouTube is that sometimes a video will be flagged and monetization will be turned disabled (I actually haven't checked with adblock disabled to see if ads are still showing up though - I should check that), and sometimes videos will be blocked in some countries. The only time a video was taken down completely was the Late Night Dub Fight. I'd have to check to see if any have been muted - I can't remember any offhand, but it may well have happened once or twice.

So if you decide to just go for it, odds are you'll be fine as long as the videos aren't monetized, and even if YouTube or a Record Label gets upset about something you've uploaded, it'll probably be pretty lenient and the worst you'll have to do is take down an offending video. Whether or not you could fight a take-down notice is beyond my knowledge, but from what I've heard the onus would be on you to prove to YouTube that the video is allowed.
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Re: A question about copyright on youtube

Postby Jimor » 14 Oct 2014, 09:43

CSt wrote:Here's my problem:
You keep referring to a contract you say exists. If such a contract existed this would be great, as it would seem to be made exactly for problems like ours. Unfortunately I don't think this contract says what you think it does if it exists at all. After googling "google indie labels" I got this interesting article which puts the dispute over the summer in a completely different field with no indication there might be more. I even looked at the proposed licensing agreement where once again there was nothing about sublicensing included. On the contrary, if this was the contract you meant, the discussion is over as it does none of the things you said.
So please, give me any evidence about that deal you are so sure exists.


Forbes article on the Summer dispute.
We’ve known for months that YouTube will soon introduce its own streaming music service, and in doing so it’s revisiting its licensing agreements with all the major and indie labels. For a monthly fee the new service will reportedly allow users to download their streams to enable listening offline, and also eliminate those annoying adverts that we all hate so much but are so necessary to the revenue stream of the content owners.


I don't know if I can find anything more black and white than that.

Edit: Also this.
Google spokesman Kay Oberbeck told Billboard in Hamburg that YouTube had entered into 20 agreements with collection societies from 33 countries.


Edit 2: And finally found something about the original deals. This is also a guide to cover songs and YouTube, so Smeghead, definitely give this a read. Long quote, but it covers most things relevant to this thread.
Though copyright owners can manually report infringing videos to YouTube, many instances of copyright infringement are now automatically identified by the platform’s Content ID system, which launched following monetization deals with labels and publishers in 2007. When videos are uploaded to YouTube, Content ID automatically scans the audio and video material of the upload and checks it for matches within its “database of files that have been submitted … by content owners” (YouTube Help 2013), a process also referred to as audio fingerprinting. Content ID was expanded following its launch to also identify cover versions and live performances based on the melody of the audio (Baio 2012). Independent tests by YouTube user Scott Smitelli (username retnirpregnif) revealed that the system scanned uploaded videos in a matter of minutes and could identify copyright-violating content even with background noise, amplification, and subtle changes below five percent in pitch or tempo (Smitelli 2009). If the uploaded content has a match within the Content ID database, one of three policies will be enabled according to the choice of the content owner who owns the copyrighted content: the video will be monetized with ads that make profit for the content owner; the audio and/or video will be blocked from playback on YouTube (sometimes only in certain countries); or the video’s viewership statistics will be viewable in the content owner’s Analytics (YouTube Help 2013). If videos are removed, a strike is placed on the uploader’s account; YouTube’s three-strike system ends with termination of the account on the third strike, complying with copyright laws and the Digital Millennium Copyright Act (YouTube 2013).

If copyrighted audio and video are pulled almost immediately, with no human confirmation, how do so many cover songs (nearly 90 million at the time of writing, based upon a simple search query) make it onto YouTube unharmed by copyright restrictions? The answer lies in copyright-based settlements that YouTube has made with various publishers in recent years. These blanket synchronization licenses, which cover thousands of publishers, “[allow] publishers to opt-in to a program that [lets] them take a cut from a $4 million advance pool and up to 50 percent of the advertising revenue from any cover song they own the rights to” (Baio 2012). However, YouTube does not publicize which publishers have signed on to their program, meaning the only way to accurately determine whether a cover song is legal is by uploading the song and waiting to see if it is detected by Content ID, triggering copyright notices and the potential for strikes against the uploader’s account. Presuming an uploaded video survives this initial check, the synchronization license allows for substantial money-making opportunities for both the cover artist and the original performers and copyright holders, illustrating the potential mutual benefit of keeping cover songs as a part of music culture.
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Re: A question about copyright on youtube

Postby CSt » 14 Oct 2014, 10:26

Finally something. Smeghead, I think you should talk to your boss about this whole idea and get a specialized lawyer (or a general counsel if you have one at hand) to look this over. Because this opinion piece in Wired basically tells you all about your situation: Could work, might end badly.
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Re: A question about copyright on youtube

Postby Jimor » 14 Oct 2014, 12:01

While as the Wired opinion piece, and the guide I linked, both talk about the frustrating gray area where a song will get deleted with a strike without any way of being able to be sure whether it is or isn't covered by the synchronization license, it's not something I've worried about with all the local music I post to YouTube, some of which contains cover performances.

One way to increase the odds in your favor is simply to search for other examples of that song being covered to see if ads have been placed, especially when that user doesn't have ads on any original content. That's a strong indication that Content ID has flagged it for ad revenue pass along to the content owner and that the license exists.

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